Full Text
HIGH COURT OF DELHI
CS(COMM) 712/2016 & lA No.13536/2017 (u/O XI R-l(5) CPC)
FASfflON DESIGN COUNCIL OF INDIA Plaintiff
Through: Mr. Kaustubh Sinha & Ms. Surbhi Mehta, Advs.
Through: None.
12.12.2017
ORDER
1. The plaintiff instituted this suit for recovery of damages and other consequential reliefs arising out of breach of contract dated lO'*^ July, 2015. In the prayer paragraph, damages in the sum of Rs.1.20 crores with future interests and costs were claimed.
2. The suit came up first before this Court on 2"^* June, 2016. Though the minimum pecuniary jurisdiction of this Court by then, stood enhanced to in excess of Rs.[2] crores but because the plaintiff labelled the suit as a 'commercial suit', without noticing whether the subject matter of the suit was a commercial dispute within the meaning of Section 2(1)(c) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 or not, the suit was entertained and summons thereof ordered to be issued.
3. The plaintiff, in the plaint, nowhere pleaded the dispute to be a commercial dispute and merely pleaded "Since the valuation amount is more than Rs. 1,00,00,000/- hence this Hon'ble Court also has pecuniary jurisdiction to tiy and entertain the present suit." CS(COMM) 712/2016 ' Page 1 of[4] 2017:DHC:8339 if
4. Be that as it may, the suit was dismissed in default of appearance of the plaintiffon 10^*^ April, 2017, also recording that the plaintiffhad not even paid the requisite court fees oh the suit.
5. The plaintiff thereafter applied for restoration of the suit and which application came up before this Court on 21®^ April, 2017 when the counsel for the plaintiff stated that the deficiency in court fees had been made up. The suit was restored to its original position and again the summons were ordered to be issued.
6. The defendant failed to appear despite service and was vide order 1 ^ • 4 dated 27^^ September, 2017 proceeded against ex parte and the plaintiff.relegated to leading exparte evidence.
7. The plaintiff has examined Mr. Sunil Vasudeva as PWl and closed its evidence on22"^^ November, 2017.
8. The suit is listed today for hearing ex parte arguments. The plaintiff has also filed lA No.13536/2017 for taking additional documents on record.
9. The counsel for the plaintiffhas been heard.
10. The additional documents, even if permitted to be taken on record, will require to be proved and for which purpose the plaintiff will have to be relegated to lead further evidence. 1 •
11. I have however enquired fi-om the counsel for the plaintiff as to how the present suit qualifies as a 'commercial suit', though labelled as one.
12. The counsel for the plaintiff states "that since the dispute arises out of an agreement, the suit would be a commercial suit".
13. This is a misconception of law. CS(COMM) 712/2016 Page 2 of[4] \fe
14. Attention of the counsel for the plaintiff has been invited to Section 2(1)(c) ofthe Commercial Courts Act and it has been asked as to in which of the Clausesno.(i) to (xxii) thereof, the present suit falls..15. The counsel for the plaintiff, after perusing the said Clauses, states that the present suit would fall in clause (x), which constitutes disputes arising out of management and consultancy agreements as commercial disputes.
16. While this order is being dictated, the counsel for the plaintiff on ftirther going through the Clauses aforesaid, states that the dispute would fall ^ in Clause (xviii) which constitutes disputes arising out of agreements for sale of goods or provision of services as commercial disputes.
17. The plaintiff, in the plaint has described its agreement with the defendant as a sponsorship agreement whereunder the defendant had agreed to sponsor the event ofthe plaintiff
18. I have asked the counsel for the plaintiff to show, where it is so pleaded in the plaint that the agreement was a management and consultancy agreement and / or wjis an agreement for providing services.
19. Though the counsel for the plaintiffhas sought to refer to para no.9 of ^ the plaint repeatedly but it is not so spelled out therefrom and the attempt of the counsel for the plaintiff today, to somehow fit the pleas in the plaint in Clauses (x) and/or (xviii) of Section 2(1)(c) of the Commercial Courts Act supra does not succeed,
20. I have perused the document described as Memorandum of Agreement and find the same to be relating to the plaintiff allowing the defendant to sponsor the event of the plaintiff for a fee of Rs.60 lacs and under the said Agreement neither any management and consultancy services CS(COMM) 712/2016 Page 3 of[4] / were to be provided nor any other servicesto be provided.
21. The ambit of Section 2(1)(c) of the Commercial Courts Act cannot be permitted to be expanded at the advocates' convenience, to allow all kinds of suits and the same if done would result in the whole purpose of enacting the Commercial Courts Act being defeated.
22. Though the suit having reached final stage, I would not have returned the plaint at this stage if nothing further remained to be done but as aforesaid, the plaintiff is still to prove its case and it is thus deemed appropriate not to allow the said exercise to take place in this Court which is not the Court of minimum pecuniary jurisdiction before which the suit should have been instituted and return the plaint to the plaintiff for filing in the Court of appropriate pecuniar^'jurisdiction.
23. Accordingly, the plaint along with the court fee affixed by the plaintiff thereon be returned and handed over to the counsel for the plaintiff to file in the Court of appropriate pecuniary jurisdiction. The original documents if any filed by the plaintiff in this Court be also returned to the plaintiff in accordance with rules. I am refraining from imposing any costs.
DECEMBER 12, 2017 'gsr'.. CS(COMM) 712/2016 RAJIV SAHAIENDLAW, J. Page 4 ojf f