Shree Sai Sales Vs Shyam Collection (Delhi High Court)
The Delhi High Court considered a petition by Shree Sai Sales, through its proprietor or authorised representative, against Shri Shyam Collection concerning the procedure adopted for a commercial dispute initially filed as an ordinary civil suit. The Additional District Judge had directed the case file in CS 324/22 to be placed before the Principal District and Sessions Judge for transfer to a Commercial Court. A separate order dated 1 June 2022 then transferred the matter to the District Judge (Commercial).
The transfer order referred to a Delhi High Court administrative order dated 5 December 2019. Justice C. Hari Shankar examined that order and explained that it concerned transfer and posting of judicial officers in the Delhi Higher Judicial Service. It did not authorise the transfer of a commercial suit instituted on the non-commercial side to a Commercial Court.
Relying on the Supreme Court ruling in Ambalal Sarabhai Enterprises Limited v. K.S. Infraspace LLP, (2020) 15 SCC 585, the Court reiterated that a commercial suit filed as a non-commercial suit must have its plaint returned for proper institution before the competent Commercial Court. The Court observed that neither the Code of Civil Procedure nor another statutory authority conferred a general power to transfer such a suit directly, and that commercial suits are governed by a materially different procedural framework.
The Court considered the procedure adopted by the courts below to be contrary to law. However, the order dated 29 July 2022 was interlocutory: it issued notice to the respondent, returnable on 14 December 2022, permitted a reply within four weeks and a rejoinder before the next hearing, and directed the matter to be listed again on that date. It did not finally allow the petition or set aside the impugned transfer orders at this stage.
Cases Discussed
- Ambalal Sarabhai Enterprises Limited v. K.S. Infraspace LLP, (2020) 15 SCC 585 (Supreme Court) — relied upon regarding return of plaint.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
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.
Notes:
1 (2020) 15 SCC 585
