Kamdi v. Himachal Pradesh Horticulture Produce Marketing & Processing Corporation Limited

2.;Notice ordered to be issued to the,respondent has been served and the ' couiisel for the respondent,appears and opposes ttansfer contending (i) that. the'Court' of.mihimuni pecuniary, jurisdiction for- the suit filed by the.. respondent is the Court of the District Judge beforevvhich.the suit is already,, - pending, and thus,cannot be transferred; arid, (ii) that the suit filed by the respondent andpending before the Additional District Judge is the priorsuit; and,..(;iii) the. cause of action for the sliit is different from,cause of action of; suitin this Court.;..;: ^;..; " v. ',3. The senior counsel for the petitioner has contended that it was open to the petitioner to file a counterclaim in the suit filed by the respondent and had the petitioner taken the said option, the suit ofthe respondent as.well as • counterclaim ofthe petitioner would have beeri transferred to this TR.P.(a) J0S/20I[7] 1 ' page 10/2: -if 2017:DHC:8569 Court under Section 9 of the Commercial Courts, Commercial iDivision and, ' ' ' ' ' ' ' ' Commercial Appellate Division ofHigh Courts Act, 2015. 4., There is no merit in the contention of the counsel for the respondent that the transfer cannot be effected from the.Court of minimum pecuniary jurisdiction-to a Court having higher minimum pecuniary jurisdiction. The " said aspect is no longer res integra. Reference in this regard can be made to Shriram Pistons & Rings Ltd. Vs. Manju Awasthy 68 (1997) DLT 112 and to Aarti Aggarwal Vs. Munish Kapila 2015 SCC OnLine Del 10070 following the said judgment. 5.. As far as the contention of the senior counsel for the petitioner is. concerned, the fact remains that the petitioner did not exercise the option of filing a counterclaim and once the petitioner has not exercised the said option, the petitioner cannot seek the procedure that would have been followed had that option been availed of;