Final Order 1

Order Details: Other
Pdf Text: COMMERCIAL SUIT 115/2019 1
IN THE CITY CIVIL COURT AT MUMBAI
COMMERCIAL SUIT NO. 115 of 2019
( CNR NO.: MHCC01-008430-2018)
Mrs. Shobhana Manishkumar Jariwala
Age 68 year,
Residing at Neeta Cooperative Housing,
Society Ltd., Shop No.6, Ground floor,
Plot No.90, Netaji Subhash Road, Marine,
Drive, Mumbai-400 002 through her C.A.
Navinchandra H. Jain.
...Plaintiff
Versus
1. Neev Realtors
A firm having its address at Neev Vittoria
Nesbit Road, Next to Mazgaon Sales Tax Office,
Mumbai-400 010.
2. Chandulal Veerchand Jain
3. Jitendra Chandulal Jain
4. Alkesh Jain
5. Hemal Jain
Age : Adult,
All of Mumbai, Partners of Neev
Realtors at and from Neev Vittoria
Nesbit Road , Next to Mazgaon
Sales Tax Office, Mumbai-400 010. ….Defendants
Appearances:-
Advocate Mr.Ramesh Jain for the Plaintiff.
Advocate Ms.Minal Parab for the Defendants.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 4th March, 2020
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COMMERCIAL SUIT 115/2019 2
O R D E R
1. By this suit the plaintiff had prayed for recovery of
Rs.12,39,671.23/- (Rupees Twelve Lakhs Thirty Nine Thousand Six
Hundred Seventy One and Twenty Three paise only) with pendente lite
and future interest at the rate of 12% p.a. on principal amount of
Rs.10,00,000/-. Summons was issued to the defendants. The defendants
appeared, however failed to file written statement. Therefore, the suit
proceeded without written statement on behalf of the defendants.
Evidence on behalf of the plaintiff came to be recorded. Final arguments
on behalf of the parties also came to be heard. In course of final
arguments the Ld advocate on behalf of the defendants argued that the
transaction as referred in the plaint does not reveal to be a commercial
dispute. Therefore, the suit ought not to have been registered and tried
as commercial suit. The Ld advocate on behalf of the plaintiff argued
that the plaintiff had proposed to file the suit as a summary suit.
However, the office registered it as a commercial suit. He submitted that
the plaintiff will abide by the orders of this court as to the nature of the
suit whether commercial or not. In this background, question arose
before this court as to whether the present suit can be referred and tried
as a commercial suit.
2. The claim of the plaintiff is very simple that he had rendered
financial assistance to the defendants and as such paid amount of
Rs.10,00,000/- by a cheque. The defendants agreed to repay the
amount with interest at the rate of 1% per month. The defendants paid
interest from time to time till 31.03.2017 by cheques. However, there
after the defendants pleaded financial difficulties and requested the
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COMMERCIAL SUIT 115/2019 3
plaintiff to wait for some time. The defendants from time to time issued
confirmation of account in writing for the period from 01.04.2016 to
31.03.2017 after paying the agreed interest. Thus, the defendants
admitted the factum of amount due and payable by them. Despite
several demands, however, the defendants failed to pay the due
amount. Therefore, the plaintiff had issued legal notice calling upon the
defendants to pay the amount. Despite receipt of said notice the
defendants failed to comply with it. Calculating the interest, at the
institution of the suit the amount due and payable by the defendants
was Rs.12,39,671.23/-. Therefore, the plaintiff claimed recovery of said
amount with interest.
3. It has to be ascertained as to whether the above mentioned facts
do constitute a commercial dispute so as to register and try the present
suit as a commercial suit. The definition of commercial dispute is
provided in section 2(c) of the Commercial Courts Act. Clauses (i) to
(xxii) of the same section specify as to which disputes are included in
the Commercial Dispute. Clause (ii) to (xxii) are completely foreign to
the present factual matrix. Clause (i) is somewhat closer. Therefore, it is
appropriate to consider whether the present factual matrix is covered by
clause (i) of section 2(c). As per same provision, commercial dispute
means a dispute arising out of ordinary transactions of merchants,
bankers, financiers and traders such as those relating to mercantile
documents, including enforcement and interpretation of such
documents. Thus, the transactions of a merchant/financiers/traders
which are based on mercantile documents are said to be commercial
disputes. Two requirements are necessary to constitute commercial
dispute, namely 1. The transactions must be of merchants, bankers,
financiers, traders. 2. such transactions must be relating to mercantile
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COMMERCIAL SUIT 115/2019 4
documents. In other words every transaction of a merchant cannot be a
commercial dispute, unless same is relating to/based on mercantile
document. In the case in hand, the factual matrix show that the plaintiff
by cheque paid the amount of Rs.10,00,000/- to the defendants. The
defendants agreed to repay the same with interest at the rate of 1%
p.m.. However, it is not the case of any of the parties that the promise to
repay the amount was by execution of any document. The defendants
have not executed any document for the repayment. Thus, the claim of
the plaintiff is not based on a mercantile document. The plaintiff's claim
is based on the acknowledgment by defendants vide confirmation of
account dtd.01.04.2017. Same confirmation of account cannot be said
to be a mercantile document. In any case the transaction i.e. repayment
promise by the defendants is not relating to mercantile documents. The
transaction is not based on mercantile document. The transaction of
promise to repay the amount had preceded to the confirmation of
account dtd.01.04.2017. In this background, it has to be held that the
factual matrix in the case in hand is not covered by section 2(c)(i). As
already noted even clause (ii) to (xxii) are also not applicable to the
case in hand. Thus, the dispute in the case in hand is not a commercial
dispute. Resultantly, the suit ought not to have been registered as
commercial suit. In para 13 of the plaint, the plaintiff has claimed the
suit to be proceeded as summary suit under Order 37 of CPC. Keeping
in view all these circumstances, it is just and proper to direct the office
to register the suit as summary suit. On registration of the suit as
summary suit procedure applicable for summary suits be followed and
summons for appearance be issued to the defendants. In the conclusion
order as follows is passed:
ORDER
1. The office is directed to register the suit as summary suit under
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COMMERCIAL SUIT 115/2019 5
Order 37 of CPC and assign it to the appropriate court completing
requisite process.
2. On registration of the suit as above, issue summons to the
defendants for appearance under Rule 2 of Order 37.
3. The matter be removed from the board of this court.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date:04/03/2020 City Civil Court,Gr. Mumbai
Dictated on : 04/03/2020
Signed on : 06/03/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
09/03/2020 at 3.30p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 04/03/2020
Judgment/Order signed by P.O. on 06/03/2020
Judgment/Order uploaded on 09/03/2020
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