Interim Order 2

Order Details: Order below exhibit
Pdf Text: Comm. Suit No. 72/19. 1 Order below Exh.9.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
ORDER BELOW EXHIBIT 9
IN
COMMERCIAL SUIT NO. 72 OF 2019
Anil Vishanji Dedhia ...Plaintiff
Versus
M/s. Klaus Waren Fixtures 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.
Ms. Prashansa Agrawal, Advocate for the defendant.
ORDER
1. This application is filed by the plaintiff for converting /
transferring the present commercial suit into the summary suit under
Order XXXVII of the CPC. Perused the application, affidavit in reply
(Exh.9A) and the suit proceeding. Heard learned counsel Sonal Darbar
for the plaintiff and learned counsel Ms. Prashansa Agrawal for the
defendant.
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'). However, due to objection of the department, the plaintiff was
compelled to file the suit as commercial suit. Developments in the suit
are elaborated in para 3 of the application and it is stated that the
matter reached the stage of filing list of witnesses. Now, the plaintiff
wants to get the suit registered as a 'summary suit'.
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Comm. Suit No. 72/19. 2 Order below Exh.9.
3. The defendants raised objection in Exh.9A that the plaintiff
had submitted willingly to the conduct of the captioned suit as a
commercial suit. The plaintiff did not object to the filing of the written
statement by the defendant. Thereafter, issues were framed by the
court. Issues are recasted as per order in Notice of Motion taken out by
the plaintiff. Therefore, the plaintiff may have intended to file a
summary suit, but he was agreeable to the institution and continuation
of the suit as a commercial suit. By raising all these contentions, the
defendant prayed for rejection of the application.
4. Learned counsel Sonal Darbar for the plaintiff reiterated
contents in the application 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 20(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. She prayed that application may be
allowed.
5. Learned counsel Ms. Prashansa Agrawal advanced
submission in consonance with contents in reply affidavit. She further
submitted that there is no provision of law in the CPC to convert the
commercial suit into summary suit. According to her, inherent powers
cannot be exercised to convert commercial suit into summary suit. She
has relied upon the citation of State of Uttar Pradesh and Others Vs.
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Comm. Suit No. 72/19. 3 Order below Exh.9.
Roshan Singh (dead) by LRs and Others – (2008) 2 Supreme Court
Cases 488 in which Hon'ble Supreme Court has guided about the
manner of exercising powers under Section 151 of the CPC. She
pointed out the stage of the matter and submitted that the suit cannot
be reregistered as a summary suit.
6. On perusal of the record, it appears that the suit is
originally registered as a commercial suit and there is no reference of
Order XXXVII of the CPC in the plaint. Title clause of the plaint reflects
filing of the suit as a commercial suit. So, there is no scope to conclude
that the plaintiff had presented the suit as a summary suit. In addition
to it, written statement of the defendant has come on record and the
matter reached the stage of evidence recording. Now, summary
procedure cannot be followed by ignoring developments in the matter
and also by nullifying the effect of written statement placed on record.
Considering all these aspects, there is no scope to entertain the
application. Hence, I pass the following order :
ORDER
Application Exh.9 is rejected.
(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 : 07/09/2021.
3. Delivered to Certified :
Copy Section on
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Comm. Suit No. 72/19. 4 Order below Exh.9.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
07/09/2021. 4.47 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 07/09/2021.
Judgment/Order uploaded on 07/09/2021.
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