Interim Order 1

Order Details: Order below exhibit
Pdf Text: 1 OBE 1 in
Comm. Suit 164 of 2019
MHCC010070392019
IN THE CITY CIVIL COURT AT MUMBAI.
(Court Room No.32)
ORDER BELOW EXHIBIT 1
IN
COMMERCIAL SUIT No.164 OF 2019
Mr. Eqrar Hafeez Khan …PLAINTIFF
VERSUS
Mr. Mustaqeem Khan & Anr. …DEFENDANTS
Shri.Vipin Pathak, learned advocate of plaintiff.
Shri.Arvind Tiwari, learned advocate for defendant No.2.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN
O R D E R
(Delivered on 12/04/2023)
This court suomoto raised the point, “ Whether the subject
matter of the suit is “Commercial Dispute” defined under Section 2(1)
(c) of the Commercial Courts Act 2015 ?”
2. Heard learned counsel of both the parties. According to
learned counsel of plaintiff, as per definition of “Commercial Dispute”
under Section 2(1)(c) of Commercial Courts Act the subject matter of
the present suit comes within the purview of commercial dispute.
3. Plaintiff come with a case that defendant No.1 was in
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2 OBE 1 in
Comm. Suit 164 of 2019
urgent need of financial help and as such he requested the plaintiff to
advance sum of Rs.80,00,000/ subject to return within six months.
Taking into consideration the request and good relations between them,
the plaintiff has advanced sum of Rs.80,00,000/ to the defendant No.1.
4. Hon’ble Bombay High Court in case law of Glasswood
Realty Pvt. Ltd. and others .v/s. Chandravilas Kailashkumar Kothari
: 2021 SCC Online Bom 5032 : (2022) 1 Bom CR 527, held
9. The disputes which are in the nature of ordinary transactions
of merchants, business, financers and traders will fall within the
purview of ‘commercial disputes’, and particularly those relating
to merchantile documents. Thus, it covers the ordinary/normal
transactions carried out by the entities mentioned in the said
clause and the term ‘merchant’ would cover a person who buy
and trade, in any commodity and therefore, the term as explained
correspond to all sort of traders, buyers and sellers. A trader is,
necessarily a person who engages himself in trading in goods;
buying and selling them at profit and the word ‘trader’ has
received a liberal interpretation with passage of time, being not
only one who sell goods substantially in the form in which they
are bought, but it would also cover a member of stock exchange,
who buy and sell securities on the exchange floor or one who
buys and sells commodities and commodity futures for others, in
anticipation of speculative profit. A ‘financer’ as per Oxford
Dictionary is an administrator, collector of taxes or one who
isskilled in levying and managing public money or as a capitalist
concerned in financial operations. The aforesaid is an indicator
that the goal of a financier is to secure ample revenue.
17. In the wake of the above, the impugned order which take a
view that the transaction of advancing the amount as a friendly
loan is commercial in nature, is an erroneous finding as a solitary
transaction of advancing loan, on friendly terms, unlike a
commercial lending with the prevailing market rate, would fall
short or ordinary transaction of a financer, banker. Moreso, even
the plaintiff is conscious of this position and in her response to
the Application filed for return of plaint for presentation of
appropriate court, she admit so.
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3 OBE 1 in
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5. Considering pleading of plaint, the nature of transaction is
not commercial dispute. There is no trading transaction between
plaintiff and defendant. According to plaintiff, he has advanced sum of
Rs.80,00,000/ mentioned in para supra. Plaintiff is not dealing in
business of money lending. Thus, it seems that there is single loan
transaction and it is not commercial transaction within the meaning of
definition under Section 2 (1) (c) of the Commercial Courts Act, 2015.
Thus, in view of aforesaid case law and facts of present case, this suit
does not come under the definition of commercial dispute. Hence, this
court has no jurisdiction to entertain and try this suit. Therefore, it is
necessary to assign this suit to appropriate court. Hence, I pass
following order.
ORDER
i) The Registrar Civil, City Civil Court Gr. Mumbai is directed to
convert and assign this suit to proper court in which the suit
should have been instituted, not being a “Commercial
Dispute”.
ii) The parties to appear before the assigned Court on
21/06/2023.
Date : 12/04/2023.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32.
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4 OBE 1 in
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Direct dictated on : 12/04/2023
Checked on : 12/04/2023
Signed on : 12/04/2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13/04/2023 Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 12/04/2023
Order signed by P.O. on 12/04/2023
Order uploaded on 13/04/2023
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