Interim Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Order on Pre. Issue in
Comm. Suit 158 of 2019
MHCC010085562019
IN THE CITY CIVIL COURT AT MUMBAI.
(Court Room No.32)
ORDER ON PRELIMINARY ISSUE
IN
COMMERCIAL SUIT No.158 OF 2019
Mrs. Seema Shailesh Shah & Ors. …PLAINTIFFS
VERSUS
Mr. Vinod Harakhchand Shah & Ors. …DEFENDANTS
Shri Nainesh Amin, learned Advocate for plaintiff.
Defendant and his learned advocate absent.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN (C.R.NO.32)
ORDER ON PRELIMINARY ISSUE
(Delivered on 12/1/2023)
This court has framed issues at Exh.13 on 24/11/2022. The
Issue No.7 treated as a preliminary issue, which is reproduced as under.
Whether the subject matter of the suit is “Commercial
Dispute” defined under Section 2(1)(c) of the Commercial
Courts Act 2015 ?”
2. Heard advocate of plaintiffs. Defendants and their advocate
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2 Order on Pre. Issue in
Comm. Suit 158 of 2019
are absent. It is case of plaintiff that they advanced friendly loan of
Rs.25 Lakh to defendants on 2/6/2015. Defendants have paid sum of
Rs.3,18,750/ towards interest on principal sum in March 2016.
3. 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 Order on Pre. Issue in
Comm. Suit 158 of 2019
4. Considering pleading of plaint and written statement, the
nature of transaction is not commercial transaction. There is no trading
transaction between plaintiffs and defendants. According to plaintiffs
they have advanced loan mentioned in para supra. Plaintiffs are 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 7/2/2023.
Date : 12/1/2023.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32.
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4 Order on Pre. Issue in
Comm. Suit 158 of 2019
Dictated on : 12/1/2023.
Checked on : 12/1/2023.
Signed on : 12/1/2023.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
12/1/2023. 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 12/1/2023.
Order signed by P.O. on 12/1/2023.
Order uploaded on 12/1/2023.
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