Shree Sai Sales Vs Shri Shyam Collection (Delhi High Court)
Summary: The Delhi High Court, in Shree Sai Sales Vs Shri Shyam Collection, examined whether a suit involving a commercial dispute, initially instituted as an ordinary civil suit, could be directly transferred to a Commercial Court. The controversy arose from CS 324/22, in which the Additional District Judge, by order dated 1 June 2022, directed that the case file be placed before the Principal District and Sessions Judge for transfer to the Commercial Court. On the same date, the Principal District and Sessions Judge transferred the matter to the District Judge (Commercial), referring to an administrative order issued by the Delhi High Court on 5 December 2019. The petitioner challenged the procedure adopted for transferring the suit.
The High Court examined the administrative order dated 5 December 2019 and observed that it merely concerned the transfer and posting of officers belonging to the Delhi Higher Judicial Service. It did not authorise the transfer of a commercial suit instituted as a non-commercial suit to a Commercial Court. Referring to the Supreme Court’s decision in Ambalal Sarabhai Enterprises Limited Vs K.S. Infraspace LLP, reported in (2020) 15 SCC 585, Justice C. Hari Shankar reiterated that where a commercial suit is instituted before an ordinary civil court, the appropriate procedure is to return the plaint for presentation as a commercial suit before the competent court.
The Court explained that neither the Code of Civil Procedure nor any other statutory authority empowered the direct transfer of a commercial suit from a non-commercial court to a Commercial Court in the circumstances under consideration. It further emphasised that the procedural framework applicable to commercial litigation differs substantially from that governing ordinary civil suits. Consequently, the Court observed that the impugned order followed a procedure alien to law. At this interlocutory stage, however, the High Court did not finally set aside the transfer order or dispose of the petition. It issued notice to the respondent, directed that any reply be filed within four weeks, permitted the petitioner to file a rejoinder and listed the matter for 14 December 2022.
Cases Discussed
Ambalal Sarabhai Enterprises Limited Vs K.S. Infraspace LLP (Supreme Court); (2020) 15 SCC 585: Relied upon for the principle concerning the return of a plaint instituted before an inappropriate forum. The Delhi High Court applied the principle to commercial suits instituted as ordinary civil suits and reiterated that such suits cannot simply be transferred to Commercial Courts without following the prescribed procedure.
FULL TEXT OF THE ORIGINAL JUDGMENT/ORDER OF DELHI HIGH COURT
CM APPL. 31721/2022 (exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
CM(M) 693/2022
3. On the ground that CS 324/22, though it pertained to a commercial dispute, was filed as a non-commercial suit, the learned Additional District Judge (the learned ADJ), vide order dated 1st June, 2022, directed the file to be put up before the learned Principal, District & Sessions Judge, so that it could be transferred to the commercial court.
4. Following this, vide a separate order dated 1st June, 2022, the learned Principal, District & Sessions Judge, transferred the matter to the learned District Judge (Commercial) for disposal in accordance with law. This, the order states, was being done consequent to order no. 60/DHC/Gaz./G-1/VIE.2(a)/2019 dated 5th December, 2019, of this Court.
5. Pursuant to directions issued by this Court, learned Counsel for the petitioner has placed the aforesaid administrative order dated 5th December, 2019 of this Court on record. The said order is merely an order of transfer and posting of officers in the Delhi Higher Judicial Service and does not authorise transfer of a commercial suit, filed as a non-commercial suit, to the commercial court.
6. Following the judgment of the Supreme Court in Ambalal Sarabhai Enterprises Limited v. K.S. Infraspace LLP1, I have already taken a view in more than one case that, if a commercial suit is filed on the non-commercial side, the court has necessarily to return the plaint for being filed as a commercial suit. This is for more than one reason. Firstly, there is no power conferred by the CPC or by any other statute or other authority, empowering transfer of a commercial suit, from a non-commercial court to a commercial court. Secondly, the protocol and procedure to be followed in commercial suits is entirely different from non-commercial suits.
7. As such, the impugned order, as learned Counsel for the petitioner correctly submits, follows a procedure alien to the law.
8. In view thereof, issue notice, returnable 14th December, 2022. Notice be served on the respondent by all modes including dasti as well as through learned Counsel who appears on behalf of the respondent before the learned Trial Court.
9. Reply, if any, be filed within four weeks with advance copy to learned Counsel for the petitioner who may file rejoinder before the next date of hearing.
10. Re-notify on 14th December, 2022.
Note:
1 (2020) 15 SCC 585.
