Full Text
HIGH COURT OF DELHI
CEPCO INDUSTRIES PRIVATE LIMITED..... Plaintiff
Through: Mr.Jai Sahai Endlaw & Mr.Ashish Kumar, Advs.
Through: Mr.Ankur Jain, Adv.
JUDGMENT
1. This application has been filed by the defendant praying for the rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’).
2. The learned counsel for the defendant asserts that the plaintiff, in its plaint, has admitted that by virtue of the Lease Deed dated 22.03.2016, the possession of the suit premises was handed over to the defendant for the operation of a bar/restaurant; and the provisions of the Central Goods and Services Tax Act, 2017 (in short, ‘the GST Act’) were made applicable as the defendant was also to pay Goods and Services Tax (in short, ‘GST’) over and above the agreed rent.
3. He submits that the plaintiff in paragraph 9 of the Plaint further reiterates that the defendant has been continuing to use and occupy the suit premises for its commercial purposes.
4. He submits that therefore, the present suit is a Commercial Suit of a specified value and was to be filed under the provisions of the Commercial Courts Act, 2015 (hereinafter referred to as the ‘Act’). The plaintiff, however, in paragraph 17 of the plaint falsely represented the suit to be ‘non-commercial in nature’, thereby escaping the rigors of the Act. He submits that as the plaintiff failed to comply with the provisions of the Act, especially with regard to the plaint being accompanied with the ‘Statement of Truth’ and Section 12A of the Act, the plaint is liable to be rejected.
5. The learned counsel for the defendant submits that the filing of the Statement of Truth is a mandatory condition under Order VI Rule 15A of the CPC, as applicable to commercial disputes. The provision of Section 12A of the Act is also mandatory in nature. The plaintiff having failed to comply with both, and the suit being a Commercial Suit, the same is liable to be dismissed.
6. The learned counsel for the plaintiff admits that the present suit should have been filed as a Commercial Suit under the Act. He prays that the present suit be re-numbered as a Commercial Suit and be proceeded accordingly. In support, he places reliance on the judgments of this Court in Rachit Malhotra v. One97 Communications Limited., 2018 SCC OnLine Del 12410; and Apnaghar Builders Pvt. Ltd. v. Intense Fitness and SPA Pvt. Ltd., 2021 SCC OnLine Del 4128.
7. Further, placing reliance on the judgment of the Calcutta High Court in Harji Engineering Works Pvt. Ltd. v. Hindustan Steelworks Construction Ltd., 2021 SCC OnLine Cal 2457, he submits that the plaintiff be also permitted to file the ‘Statement of Truth’ as required for a Commercial Suit. He submits that the defect in filing of the Statement of Truth is a curable defect.
8. As far as non-compliance with Section 12A of the Act is concerned, he submits that the present suit was filed in December 2021; the judgment of the Supreme Court in Patil Automation Pvt. Ltd. and Ors. v. Rakheja Engineers Pvt. Ltd., (2022) 10 SCC 1, which holds the provisions of Section 12A of the Act to be mandatory, is prospective in nature, and has been made effective only from 20.08.2022. He submits that, therefore, the present suit cannot be rejected only because the plaintiff had not initiated pre-institution mediation as required under Section 12A of the Act.
9. I have considered the submissions made by the learned counsels for the parties.
10. The plaintiff has already admitted that the present suit was wrongly filed as an Ordinary Suit of a non-commercial nature. In Rachit Malhotra (supra), this Court has rejected submissions similar to the one made by the learned counsel for the defendant herein, observing as under:-
11. The above judgement was followed by this Court in Apnaghar Builders Pvt. Ltd. (supra), observing as under: -
12. This Court, in various orders, including order dated 21.07.2022 passed in CS (OS) 469/2021 titled Riveria Commercial Developers Ltd. v. Brompton Lifestyle Brands Pvt. Ltd., placing reliance on the above referred judgments, also allowed the suit to be registered as a Commercial Suit. The same procedure was followed by this Court vide order dated 15.12.2022 passed in FAO-IPD 23/2021 titled Dhani Aggarwal v. Mahesh Yadav & Ors.
13. As far as non compliance with the mandatory provision of Section 12A of the Act is concerned, the judgment of the Supreme Court in Patil Automation Pvt. Ltd. and Ors. (supra) has been expressly made prospective in nature. The same, therefore, shall have no application to the facts of the present case as the suit was filed prior to the date of the said judgment. The parties were also referred to mediation vide order dated 22.04.2022 passed by the learned Joint Registrar (Judicial), however, the parties could not arrive at a settlement of their disputes.
14. As far as non-filing of the ‘Statement of Truth’, as the Suit was not filed as a Commercial Suit to which the provisions of the Act apply, the occasion of filing the ‘Statement of Truth’ did not arise. Now that the Suit is admitted to be a Commercial Suit of the specified value to which the provisions of the Act would apply, the plaintiff shall rectify this defect, however, for this defect alone the plaint cannot be rejected.
15. In view of the above, I find no merit in the present application. The same is dismissed. CS(OS) 682/2021 & & I.A. 16516/2022
16. As it is now admitted by the learned counsel for the plaintiff that the present suit should have been filed as a Commercial Suit under the provisions of the Act, the Registry is directed to re-number the suit as a Commercial Suit. The plaintiff shall file the Statement of Truth and comply with other provisions of the Act with respect to the pleadings of the plaint, within a period of two weeks of this order.
17. List before the learned Joint Registrar (Judicial) on 31st January
2023.
NAVIN CHAWLA, J. JANUARY 09, 2023