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HIGH COURT OF DELHI
Date of Decision: 15.12.2022 FAO-IPD 23/2021 DHANI AGGARWAL ..... APPELLANT
Through: Mr.Rishi Bansal, Mr.Neeraj Bhardwaj, Advs.
Through: Mr.Sanjeev Sindhwani, Sr.
Adv. with Mr.Rohan Jaietly, Mr.Lalit Gupta, Mr.Siddharth
Arora, Mr.Priyansh Jain, Advs.
JUDGMENT
1. This petition has been filed by the respondents/applicants seeking review of the judgment dated 22.08.2022, on the ground that in terms of Section 13(1A) of the Commercial Courts Act, 2015 (in short, ‘the Act’), an appeal arising out of an order or a judgment passed by a Commercial Court at the level of the District Judge exercising the original Civil Jurisdiction, can be adjudicated only by the Commercial Appellate Division of this Court, and not by the Single Judge. It is, therefore, the case of the respondents/applicants that the judgment of this Court dated 22.08.2022 has been passed without jurisdiction and that the above appeal should have been transferred/listed before the Division Bench of this Court.
2. In support of the above assertion, the learned senior counsel for the respondents/applicants submits that the Suit in question was filed by the appellant/non-applicant herein in April, 2019, that is, after the coming into force of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018 (in short, ‘the Amendment Act’). The suit was first listed before the learned Additional District Judge, Tis Hazari Courts and was numbered as TM (COMM.) No.157/2019. An ex-parte ad-interim order of injunction was passed in favour of the appellant/non-applicant and against the respondents/applicants. The respondents/applicants filed an application under Order XXXIX Rule 4 read with Section 151 of the Code of Civil Procedure, 1908 (in short, ‘CPC’), again titling the same as having been filed in a Commercial Suit, being TM (COMM) No.157/2019.
3. The plaint filed by the appellant/non-applicant before the learned Trial Court also contained a 'Statement of Truth’, which is a requirement only under the Act
4. He further submits that though the impugned order dated 31.08.2019 was passed showing the number of the Suit as TM NO. 97/19 (157/19), that is, as a Non-Commercial Suit, the same would not change the status of the Suit and it would remain a ‘Commercial Suit’ to be governed by the Act.
5. The learned senior counsel for the respondents/applicant submits that even after the passing of the impugned order by the learned Trial Court, the Suit in question continues to be considered and treated as a ‘Commercial Suit’. In this regard, he has drawn my reference to the order dated 29.01.2020 passed by the learned District Judge (Commercial Court-06), Tis Hazari Courts, which inter alia states that a ‘Case Management Hearing’ was held. He submits that a ‘Case Management Hearing’ is applicable only to a ‘Commercial Suit’; it is a concept that is alien to a Non-Commercial/Ordinary Civil Suit. He further submits that the said order would also reflect that the Suit has been renumbered as CS(Commercial) No. 2129/2019, that is, as a ‘Commercial Suit’.
6. He places further reliance on the order dated 22.06.2020 passed by the learned District Judge (Commercial Court-06), which records that the Suit shall be listed for a ‘Case Management Hearing’. He submits that, therefore, the Suit in question has been proceeded as a ‘Commercial Suit’, and therefore, an appeal against any order passed in the said Suit shall lie only before the Division Bench of this Court under Section 13(1A) of the Act and in terms of the order dated 27.01.2021 passed by a Coordinate Bench of this Court in FAO No.232/2020 titled Delhi Tourism and Transportation Development Corporation v. Swadeshi Civil Infrastructure Pvt. Ltd.
7. Placing reliance on the preamble to the Act, he submits that the Act provides for the creation of Commercial Courts and, therefore, to achieve its object and purpose, any order passed by a Commercial Court, irrespective of whether the Suit is or is not within the ambit of the Act, can be appealed against only in accordance with the provisions of the Act.
8. He submits that Section 13(1A) of the Act also states that any person aggrieved by the judgment/order of a Commercial Court can file an appeal to the Commercial Appellate Division of the High Court, therefore, the only requirement of the Act is that the order impugned should have been passed by a Commercial Court for Section 13(1A) of the Act to be attracted.
9. The learned senior counsel for the respondents/applicants has further placed reliance on the order dated 14.09.2021 passed by a Coordinate Bench of this Court in C.R.P No. 61/2021, titled Mr. Hari Singh v. M S Superhouse Ltd., to submit that in the said order, it has been held that irrespective of whether the numbering of the Suit is not as a ‘Commercial Suit’, the dispute being commercial in nature, would have to be adjudicated under the Act.
10. Placing reliance on the judgment of this Court in Vishal Pipes Limited v. Bhavya Pipe Industry, 2022 SCC OnLine Del 1730, he submits that a Suit relating to Intellectual Property Rights cannot be valued below Rs.3,00,000/- (Rupees Three Lakh only) so as to avoid the application of the Act to such a Suit. He submits that by the said judgment, all Suits that were valued below Rs.3,00,000/- were to be placed before the learned District Judge (Commercial). He submits that the appellant, having valued the Suit in question at below Rs.3,00,000/-, cannot negate the provisions of the Act.
11. On the other hand, the learned counsel for the appellant/nonapplicant submits that in the present appeal and/or in the review petition, no challenge has been made by the respondents/applicants to the valuation of the suit ascribed by the appellant/non-applicant to the Suit for the purposes of pecuniary jurisdiction. He submits that in terms of Section 6 read with Section 2(1)(i) of the Act, only a ‘Commercial Suit of a specified value’ are governed by the provisions of the Act. As the present Suit is below the specified value, the Act shall have no application to the Suit in question, and consequently, Section 13(1A) of the Act shall not apply to the appeal filed against the order passed in the Suit.
12. I have considered the submissions made by the learned counsels for the parties.
13. Section 6 of the Act states that the Commercial Courts shall have jurisdiction to try all Suits and applications relating to a ‘Commercial Disputes of a specified value’ arising within the entire territory of the State over which it has been vested territorial jurisdiction. Section 6 of the Act is reproduced hereinunder:-
14. A reading of the above provision would clearly show that for the purposes of invoking jurisdiction of a Commercial Court, the Suit and application must first relate to a ‘Commercial Dispute’ as defined under Section 2(1)(c) of the Act; and secondly, such disputes must be of a ‘Specified Value’ as defined in Section 2(1)(i) of the Act. Both the conditions have to be cumulatively met for the vesting jurisdiction in a Commercial Court.
15. Section 2(1)(i) of the Act is reproduced hereinbelow:-
16. A reading of the above provision would show that ‘Specified Value’ in relation to a ‘Commercial Dispute’ means the value of the subject matter in respect of the Suit which shall not be less than Rs.3,00,000/. In the present case, the plaintiff has filed the Suit valuing the same for purpose of jurisdiction, as under:-
17. As admitted by the learned senior counsel for the respondents/applicants, till date, there is no challenge to this valuation of the Suit made by the respondents/applicants. This was not put in question even before this Court in the appeal and/or in the present review petition. Clearly, therefore, the Suit as it stands today, is not within the jurisdiction of a Commercial Court.
18. Merely because it has been numbered as a Commercial Suit or may have been dealt with by the parties or even by the Court as a Commercial Suit, would not convert the same to a ‘Commercial Suit’ of a specified value and/or vests jurisdiction in a Commercial Court. The parties by their consent or by conduct cannot vest jurisdiction in a Court which otherwise lacks jurisdiction. Reference in this regard may be made to the judgment of the Supreme Court in Patel Roadways Limited, Bombay v. Prasad Trading Company, (1991) 4 SCC 270.
19. In Mr.Hari Singh (supra), the Court was dealing with a situation where the Suit was admittedly a ‘Commercial Suit’ but was wrongly numbered as an Ordinary Suit. It was in that circumstance that the Court held that such numbering of the Suit would not be a determinative factor and the Suit would continue to be governed by the Act. I may only quote from that judgment as under:
20. In Vishal Pipes Limited (supra), the Court was answering a situation where the parties value the Suit for purposes of jurisdiction below Rs.3,00,000/- only to avoid the Suit being tried under the provisions of the Act. To answer the above situation, the Court directed as under:-
21. A reading of the above direction would also show that it is not every case relating to an Intellectual Property Right that would be governed by the Act or over which only a Commercial Court would have jurisdiction. The Court directed that the learned District Judge (Commercial) shall consider the valuation ascribed by the plaintiff to the Suit, and upon such examination, pass appropriate orders in accordance with the provisions of the law either directing the plaintiff to amend the plaint to make the correct valuation or to proceed with the suit as a non-commercial suit.
22. In the present case, admittedly, this exercise has not been done as till date there has been no objection raised by the defendant to the Suit/respondents herein/applicants challenging the valuation ascribed to the suit by the plaintiff/appellant herein. Therefore, the Suit continues to be a ‘Non-Commercial Suit’ to which the provisions of the Act would have no application.
23. The submission of the learned senior counsel for the respondents, that even if the Suit is not a Commercial Suit but as the order has been passed by a Commercial Court, the provisions of Section 13(1A) of the Act would apply, is merely stated to be rejected. As noted hereinabove, if the Suit in question is not relating to a ‘Commercial Dispute of a specified value’, it is not a ‘Commercial Suit’ over which Commercial Court would have any jurisdiction. The order passed was also not of a Commercial Court. Merely because the Court was also administratively exercising powers of a Commercial Court for other matters, it would not covert the order passed in a Non- Commercial Suit as an order of the Commercial Court for the purposes of Section 13(1A) of the Act. In Delhi Tourism and Transportation Development Corporation (supra), the Court considered the following question:-
24. In the above-referred case, therefore, there was no dispute that the proceedings out of which the appeal arose was a ‘Commercial Dispute of a specified value’ and that the provisions of Section 13(1A) of the Act were application. The said order would, therefore, have no application to the facts of the present appeal/review application.
25. In view of the above, I find no merit in the present review petition. The same is dismissed with costs quantified at Rs.1,00,000/- (Rupees One Lakh only) to be deposited by the Review Petitioner with the Delhi High Court Bar Clerk’s Association.
26. The pending application is also dismissed.