Sanjay Aggarwal & Anr. Vs Hemant Sharma (Delhi High Court)
Summary: The Delhi High Court, in Sanjay Aggarwal & Anr. Vs Hemant Sharma, examined procedural irregularities in the transfer of a civil suit between courts. The respondent-plaintiff initially filed the suit as a non-commercial proceeding but subsequently claimed that the dispute was commercial and sought its transfer to a Commercial Court. Referring to Ambalal Sarabhai Enterprises Limited Vs K.S. Infraspace LLP, Justice C. Hari Shankar reiterated that a commercial suit filed as a non-commercial suit cannot simply be transferred to a Commercial Court. Instead, the plaint must be returned to the plaintiff for proper institution as a commercial suit.
However, the respondent-plaintiff subsequently reversed the earlier position and claimed that the dispute was non-commercial. Consequently, the Principal District and Sessions Judge assigned the case to another non-commercial court. The High Court observed that this circuitous transfer between two ordinary civil courts followed a procedure contrary to the framework of Section 24 CPC, which governs the transfer of suits. Accordingly, the Court issued notice to the respondent, directed the filing of a reply within four weeks and listed the matter for 9 September 2022. The order was interlocutory, and the petition was not finally decided.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
CM No. 33369/2022 (exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
CM(M) 749/2022
3. The petitioners, in this petition assail orders dated 3rd June, 2022, 4th June, 2022 and 8th June, 2022 passed in CS 56/22 (Hemant Sharma v. Sanjay Aggarwal & Ors.)
4. CS 56/22 was filed as a non-commercial suit. On 3rd June, 2022, the respondent-plaintiff contended that the suit was required to be tried as a commercial suit and, therefore requested that the matter be sent to the Commercial Court. The respondent-plaintiff moved an application for permission to withdraw the suit, on the ground that the dispute was commercial in nature and was required to be tried by the commercial court.
5. On 3rd June, 2022, the respondent-plaintiff, appearing before the learned ADJ, sought leave to withdraw the aforesaid application and, instead, requested that the matter be transferred to the Commercial Court, as the dispute was commercial in nature.
6. I may note, here, that, following the judgment of the Supreme Court in Ambalal Sarabhai Enterprises Limited v. K.S. Infraspace LLP1, I have already taken a view that such transfer of commercial suits, filed on the non-commercial side, is not permissible in law and that, if a commercial suit is filed as a non-commercial suit, the court can only return the suit to the plaintiff to be reinstituted as a commercial suit.
