Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Comm. Suit 245/2019
MHCC010096602019 Presented on : 20.09.2019
Registered on : 04.12.2019
Decided on : 20.06.2022
Duration : 2Y 9M 0D
IN THE CITY CIVIL COURT AT MUMBAI.
COMMERCIAL SUIT No. 245 OF 2019
Chetna w/o Mikil Jain and Daughter of
Bhawarlal Kothari, an adult aged 37 years,
Occ: Household and business, Residing at
89/B, Pankaj Mansion, Second Floor, Dr.
Annie Besant Road, Opp. Podar Hospital,
Worli, Mumbai 400018.
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...PLAINTIFF
VERSUS
Messrs. Neev Realtors, a firm carrying on
business at 101, Sunder Apartments, Next
to Sales Tax Office, Nesbit Road, Mazgaon
Circle, Mumbai 400 010.
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...DEFENDANT
Smt. K. S. Shah, learned advocate for the plaintiff.
Smt. Minal Parab, learned advocate for defendant.
CORAM : HIS HONOUR JUDGE SHRI. N.P. TRIBHUWAN
(C.R.NO.32)
J U D G M E N T
(Delivered on 20/06/2022)
This is a suit for recovery of sum of Rs.12,95,000/ and
interest on Rs. 10 Lakh @ of 12% p.a.
2. It is case of plaintiff that she is household lady and carrying
on business. Defendant is a firm. Plaintiff has deposited a sum of Rs.10
Lakh by RTGS on 03/07/2015 with defendant. Defendant has time to
time paid amount towards interest by cheques on the principal sum of
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2 Comm. Suit 245/2019
Rs.10 Lakh @ of 12% p.a. after deducting income tax at source.
3. At the end of accounting year 20162017, defendant has
forwarded confirmation of account dtd.01/04/2017 for accounting year
from 01/04/2016 to 31/03/2017. Thereby defendant admitted
payment of interest to plaintiff @ of 12% p.a. till 31/03/2017 after
deducting tax at source and confirmed that a sum of Rs.10 Lakh
remained due and payable to plaintiff. Thus, principal sum of Rs.10
Lakh and interest thereon from 01/04/2017 @ of 12% p.a. is due.
Inspite of repeated demands defendant failed to pay said dues. Hence,
she has sent demand notice dtd.12/02/2019 through advocate to
defendant and called upon defendant to make the payment as above.
Inspite of receipt of said notice, defendant neglected to pay the due
amount. On 19/02/2019 plaintiff filed application bearing File No.470
of 2019 for premediation institution of commercial dispute in the office
of District Legal Service Authority, Mumbai. In the said proceeding
defendant appeared through advocate. However, dispute could not
settle in mediation. Thus, DLSA has issued nonstarter report
dtd.08/08/2019. Therefore, plaintiff has filed this suit for recovery of
aforesaid amount.
4. Defendant has filed written statement at Exh.6 and
contended that the suit is not maintainable as alleged dispute cannot be
termed as commercial dispute within the meaning of Section 2(1)(c) of
the Commercial Courts Act. Suit is bad for nonjoinder and misjoinder
of necessary parties. Defendant is a partnership firm registered under
the provisions of Partnership Act 1932 and it is engaged in the business
of construction and development of buildings and infrastructure.
5. Defendant denied that it agreed to repay sum of Rs.10
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3 Comm. Suit 245/2019
Lakh with interest @ 12% p.a. It denied that it paid interest by cheque
on principal sum of Rs.10 Lakh @ of 12% p.a. It denied the
confirmation of account. It denied that it received the notice
dtd.12/02/2019. The suit is barred by law of limitation and hence,
liable to be dismissed. Plaintiff has filed this suit to harass defendant
and to extort extra money from defendant. In view of above pleading
defendant has denied all other adverse content of plaint.
6. Learned predecessor has framed issues at Exh.7. I recorded
findings thereon for the reasons stated as under.
ISSUES FINDINGS
1. Whether the plaintiff proved that the
defendant owe an amount of
Rs.12,95,000/ to her alongwith pending
and future interest ?
…Redundant
2. Whether the plaintiff further proved that
inspite of legal notice dt.12/02/2019 and
mediation notice through preinstitution
mediation in commercial dispute from
DLSA Mumbai, the defendant has failed &
neglected to pay the due amount to
plaintiff ?
…Redundant
3. Whether the defendant proved that the
suit claim is not maintainable under
Commercial Courts Act, 2015 or any other
law ?
…Yes
4. Whether the suit suffers from the defect of
misjoinder of parties and/or nonjoinder
of necessary party ?
…Redundant
5. Whether plaintiff is entitled for a decree
against the defendant in the sum of
Rs.12,95,000/ in the suit, alongwith
pending and future interest @ 12% p.a. ?
…Redundant
6. What order and decree? ...As per final
order.
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REASONS
7. Heard learned counsel of both the parties. Plaintiff has
examined her husband Mikil Jain (PW1) to prove her case. In rebuttal
defendant has not examined any witness.
As to point No.3 :
8. Learned counsel of plaintiff argued that plaintiff and
defendant are traders. As per definition of “commercial dispute” under
section 2(1)(c), plaintiff is “financier” as she has given loan amount to
defendant. Defendant is paying GST and therefore, is a trader. In such
circumstance, the subject matter of the suit is commercial dispute.
9. Learned counsel of defendant filed written notes of
argument at Exh.28 and relied on case law of Ambalal Sarabhai
Enterprises Limited Vs. K. S. Infraspace and another :(2020) 15 SCC
585 wherein, Hon'ble Supreme Court held that,
For a dispute to be a commercial dispute under S. 2(1) (c) (vii),
the agreement between the parties must refer to immovable
property used/being used exclusively in trade or commerce. The
word “used” occurring in S.2(1)(c)(vii) denotes “actually used”
and it cannot be either “ready for use” or “likely to be used” or “to
be used”. Merely because the property is likely to be used in
relation to trade and commerce, the same cannot be a ground to
attract jurisdiction of Commercial Court. Such a wide
interpretation would defeat the object of Commercial Courts Act
with regard to speedy disposal of commercial disputes
thereunder. In present case, there was nothing on record to show
that at the time when the agreement to sell concerned came to be
executed, the property was being exclusively used in trade and
commerce so as to bring the dispute within the ambit of S. 2(1)
(c)(vii) of Commercial Courts Act. Consequently, the impugned
order of High Court directing Commercial Court to return the
plaint for its presentation before the appropriate court was
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proper.
10. Learned counsel of defendant argued that as per pleading
in para 2 of plaint the nature of transaction is alone loan transaction.
There is no trading transaction between plaintiff and defendant.
Defendant is not a trader but it is engaged in construction business.
Thus, basically this is a suit for recovery of amount which does not
come under the definition of commercial dispute.
11. Thus, let us see evidence of PW1 (husband of plaintiff). His
evidence indicates that he is authorized by plaintiff through power of
attorney to depose on her behalf in this suit. On the point of
transaction, evidence of PW1 and contents of plaint shows that on
3/7/2015 plaintiff has deposited a sum of Rs.10 lakh by RTGS with
defendant. During crossexamination, PW1 stated that he does not
know whether any person has instructed his wife (plaintiff) to deposit
the said amount in the bank account of defendant. As like an amount
transferred to defendant, the plaintiff usually transfers the amount to
other persons also. He is not money lender.
12. PW1 failed to give answer as to why and on whose
instruction the money was deposited. The deposit of money without any
commercial transaction is beyond scope of the commercial dispute.
Defendant is not trader and he engaged in business of construction and
development of buildings and infrastructure. Plaintiff is household and
the same is confirmed by her husband/PW1. It becomes clear that the
money deposited by plaintiff in bank account of defendant is not
towards any transaction out of trading. Such a claim for recovery of
amount cannot fall u/sec.2(1)(c)(i) of the Commercial Court Act.
Hon’ble Bombay High Court in case law of Glasswood Realty Pvt. Ltd.
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6 Comm. Suit 245/2019
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.
13. In view of ratio laid down in above cited case laws and
considering entire facts and evidence discussed above, it is established
that the transaction between parties is not a commercial dispute. It is
loan transaction. Hence, this court has no jurisdiction to entertain and
try this suit. Therefore, it is necessary to return plaint under order VII
Rule 10 of C.P.C. In view of above facts, I answer issue no. 3 in
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affirmative. As this commercial court has no jurisdiction to entertain
and try this suit, issue no.1, 2, 4 & 5 become redundant.
ORDER
i) The plaint be returned to plaintiff for being presented to the
Court in which the suit should have been instituted, not being
a “Commercial Dispute”.
ii) The parties to appear before the Court in newly registered suit
on 11/7/2022.
iii) The parties to bear their own costs.
Date : 20/06/2022.
(N.P.TRIBHUWAN)
Judge, City Civil Court,
Mumbai. C.R.No.32
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Dictated on : 20/06/2022.
Checked on : 20/06/2022.
Signed on : 20/06/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
20/06/2022 at Mrs.Gitalaxmi K. Kotawadekar
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 20/06/2022
Order signed by P.O. on 20/06/2022
Order uploaded on 20/06/2022
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