Order 2

Order Details: Notice of Motion
Pdf Text: N/m No. 1728/21 in Comm. Suit No. 65/19. 1 Order.
MHCC010056832021
Presented on : 09-08-2021
Registered on : 09-08-2021
Decided on : 06-09-2021
Duration : 0 years, 0 months, 28 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1728 OF 2021
IN
COMMERCIAL SUIT NO. 65 OF 2019
Ratanbai Jethalal Savla ...Plaintiff
Versus
Sunshine Tracon Pvt. Ltd. ...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 6th SEPTEMBER, 2021.
Ms. Sonal Darbar, Advocate for the plaintiff.
Mr. M.K.Tanna h/f A.V.Jain & Associates, Advocate for the defendant.
ORDER
1. This notice of motion is filed by the plaintiff for
converting / transferring the present commercial suit into the summary
suit with direction to the Registrar for allotment of the present suit to
any court which deals with summary suit. Perused the notice of
motion, supporting affidavit and reply affidavit. I have also gone
through the suit proceedings. Heard learned counsel Sonal Darbar for
the plaintiff and learned counsel Shri M.K.Tanna for the defendant.
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N/m No. 1728/21 in Comm. Suit No. 65/19. 2 Order.
2. It is contention of the plaintiff that she had filed the suit
under Order XXXVII Rule 2 of the Civil Procedure Code (for short 'the
CPC'). According to the plaintiff, aspect of summary suit was
mentioned in the title of the suit, the department of this court directed
her to file mediation application due to introduction of the Commercial
Courts Act, 2018 (for short 'the Act') and claim of the suit was above
Rs.3,00,000/. Mediation Application No. 347/2019 was served upon
the defendants, the defendants appeared on 24/04/2019 and
03/05/2019, but matter could not be settled. Advocate for the
defendant had given in writing that she is not willing for the mediation.
Accordingly, nonstarter report was prepared on 15/06/2019. Then,
the suit is registered as a Commercial Suit No. 65/2019. The plaintiff
has stated in para 15A of the plaint that the suit falls under Order
XXXVII Rule 2 of the CPC. Writ Petition No. 5989/2020 is also filed
before Hon'ble High Court for the plaintiff's being dominus litis. Now,
the plaintiff wants to get the suit registered as a 'summary suit' and
allotted to the court which deals with summary suit.
3. The defendant has taken objection that notice of motion
has been taken out after gross delay of two years from the date of filing
of the suit. Present suit has reached the stage of crossexamination of
PW 1. Statement in para 15A of the plaint cannot result into making
the present suit as summary suit. The defendant denied any nexus of
the above referred writ petition with the present suit. The plaintiff
ought to have followed steps as per Order XXXVII. The suit is not
originally registered as summary suit. By raising all these contentions,
the defendant prayed for dismissal of notice of motion.
4. Learned counsel Sonal Darbar for the plaintiff reiterated
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N/m No. 1728/21 in Comm. Suit No. 65/19. 3 Order.
contents in the notice of motion and submitted that the plaintiff was
compelled to get the suit registered as a 'commercial suit' by the
department of the court and she has already pointed out this aspect by
way of para 15(a) in the plaint. She relied upon observations of my
learned brother Judges in orders in Notice of Motion No. 501/2020 in
Commercial Suit No. 174/2019 and Commercial Suit No. 115/2019
passed on 04/01/2021 and 04/03/2020 respectively. By placing
reliance on both these orders, she submitted that the plaintiff has
dominus litis. She submitted that the suit be converted from the
commercial suit to summary suit and allotted to the court dealing with
summary suits. She prayed that notice of motion may be allowed.
5. On the contrary, learned counsel M.K.Tanna submitted that
the defendant has filed written statement (Exh.4) on 02/11/2019 and
issues are framed at Exh.6 on 22/01/2020. Then, the plaintiff filed
evidence affidavit of PW 1 Vikram (Exh.9). Case management hearing
is conducted on 07/08/2021. According to him, after completion of
half trial, the suit cannot be converted into a commercial suit. He
further submitted that if notice of motion is allowed, procedure under
Order XXXVII of the CPC will have to be followed and it is not
permissible. He prayed that notice of motion may be dismissed.
6. After considering rival contentions, it is clear from record of
the suit that the suit is registered as a commercial suit at the beginning
itself. Para 15A of the plaint reveals that the plaintiff raised contention
that the suit is filed under section 9 of the CPC and no preinstitution
mediation is required under section 12A of the Act. Then, pre
institution mediation was started and it ended in a nonstarter report.
Ultimately, the suit is registered as a commercial suit.
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N/m No. 1728/21 in Comm. Suit No. 65/19. 4 Order.
7. It is pertinent to note that the plaintiff has filed the suit for
recovery of friendly loan advanced to the defendant for business
purpose and it is transaction between traders as defined in section 2(c)
of the Act. The plaintiff has sought relief of recovery of a amount of
Rs.87,17,500/ with interest. This amount is above the specified value
as defined in section 2(i) of the Act. Section 6 of the Act has conferred
jurisdiction upon the commercial court to try all suits and applications
relating to a commercial dispute of a specified value.
8. In short, the court has to look above referred three
provisions before determining the jurisdiction of the commercial court
to deal with a particular case. The term 'all suits' in section 6 of the Act
covers the suits filed as a regular suit or suits filed as a summary suit
under order XXXVII of the CPC. Nature of the suit and provision
conferring the jurisdiction upon the court are relevant considerations.
9. With this regard, Order XIIIA Rule 1(3) of the amended
CPC prohibits the court from entertaining an application for summary
judgment in case of filing of a suit as a summary suit under Order
XXXVII in respect of any commercial dispute. This clause impliedly
suggests that summary suits in respect of any commercial dispute are
expected to be dealt with by the commercial court and while dealing
such summary suits, an application for summary judgment should not
be entertained by the court. In short, registration of the suit either as a
commercial suit or as a summary suit does not affect the jurisdiction of
commercial court conferred as per section 6 of the Act.
10. Very prayer in the notice of motion throws light on the
assumption of the plaintiff that registration of the suit would take away
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N/m No. 1728/21 in Comm. Suit No. 65/19. 5 Order.
the jurisdiction of the commercial court to deal with commercial dispute
in the suit and it would vest in regular/ordinary civil courts dealing
with all civil matters. Therefore, the plaintiff has inserted second limb
of prayer in notice of motion praying for allotment of the present suit to
any court which deals with summary suit. As prayer clause in the notice
of motion is not in consonance with provisions of the Act, it is not
maintainable.
11. It is pertinent to note that the plaintiff has two options i.e.
filing a regular commercial suit or resorting to order XXXVII of the CPC
for quick relief by way of summary procedure laid down in that order. It
does not affect and touch to the core aspect of jurisdiction. Issue of
jurisdiction can be dealt with in the light of express provisions in a
particular statute by reading them in the context of Section 9 to 25 of
the CPC.
12. In the present matter, the defendant has filed written
statement and issues are framed. In short, it is not open for the court to
follow summary procedure laid down under Order XXXVII of the CPC. If
such course is followed, it would result into undoing the things which
have already taken place in the matter. The plaintiff cannot be
permitted to resort to the remedy of summons for judgment by
completely ignoring written statement containing defence of the
defendant. Aspect of leave to defend is left behind and it is not open for
consideration in the present proceedings due to acceptance of written
statement. Issues framed in the matter clarifies that the court has taken
into consideration rival pleadings and it has reached to the conclusion
that there is some controversy in the matter which has to be decided by
letting both sides to lead evidence.
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N/m No. 1728/21 in Comm. Suit No. 65/19. 6 Order.
13. In short, the court cannot wash out the developments taken
place in the matter by leaving broad path adopted to deal with the
matter and by choosing to narrow one created for quick remedy by
following guiding principles of natural justice within short span of time.
Even otherwise, the court has to follow the same procedure as is
followed in the suit instituted in the ordinary course after leave to
defend is granted in view of order XXXVII Rule 7 of the CPC.
14. Concept of dominus litis cannot be construed as a right to
take away jurisdiction of the court conferred as per provisions of law.
Such sort of interpretation would adversely affect the very purpose
intended to be achieved by way of introduction of the Act. Factual as
well as legal aspects as discussed above do not permit this court to
allow this notice of motion. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 1728/2021 is dismissed.
2. N/m No. 1728/2021 is disposed off accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 06/09/2021. Mumbai.
1. Dictated online on : 06/09/2021.
2. Signed on : 06/09/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 1728/21 in Comm. Suit No. 65/19. 7 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06/09/2021. 5.19 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 06/09/2021.
Judgment/Order signed by P.O. on 06/09/2021.
Judgment/Order uploaded on 06/09/2021.
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