Himla Aggarwal v. M/S Gupta International & Ors.

1. By the present petition filed under section 24 of the Code of Civil Procedurethe petitionerseekstransfer ofSuitNo.22672016(re-numbered as CS(OS)612827/2016) titled as M/s Gupta International and Others vs. Ashok Kumar Singhal & Another pending in the court of Ms.Savita Rao, Additional District Judge(West)to be tried before Commercial Division of this court. The admitted case ofthe parties is that the subject matter ofthe suitis a commercial dispute. M/s GuptaInternational,Smt.Bimla Gupta and Shri Om Prakash Gupta i.e.therespondents No.l to 3filed a suit againstthe petitioner and respondent No.4 on the original side ofthis Court in respect ofa dispute relating to partnership agreement between the parties. The suit.--2 CM(M)836/2013 Pagei 2016:DHC:9204 was transferred by this Court vide order dated 10.5.2016 to the Court of Additional District Judge, West in view of Notification No.27187/DHC/ Orgl.Dated 24.11.2015.

2. The petition relies upon a circular of this Court dated 28.4.2016 to contend that the suit is now to be tried by a Commercial Division of this court.

3. Learned senior counsel appearing for the petitioner relies upon a judgment ofthis Court in the case of KamalSharma & Ors. vs.Blue Coast Infrastructure Development Pvt Ltd., 229(2016)DLT 438 to contend that in pending suits involving commercial disputes which were pending before this Court and were transferred to the District Court vide notification ^ No.27187/DHC/Orgl. dated 24.11.2015 are to be re-transferred back to this courtto be heard by the Commercial Division ofthis Court.

4. The notification dated 28.4.2016 issued by the Registrar General of this Court reads as follows:- "Hon'ble the Chief Justice vide Notification dated 28*'' April, 2016 has been pleased to order issuance of the following addendum to Notification No.27187/DHC/Orgl. dated 24.11.2015:- "All suits and applications covered bythe first proviso to Section 7 of the Commercial Courts, Commercial Division and Commercial Appellate Division ofHigh Courts Act,2015 filed or pending as on 26.10.2015 on ^ the Original Side ofthe DelhiHigh Court,shallremain in the Delhi High Court and shall be heard and disposed ofby the Commercial Division ofDelhi High Court." In terms ofthe said addendum,all suits and applications relating to commercial disputes stipulated by an Act to lie in a Court not CMCM)836/2013 Page[2] inferior to a District Court, which have been transferred to the District Courts pursuantto the Notification No.27187/DHC/Orgl. Dated 24.11.2015 shall be recalled back to the Delhi High Court for being heard and disposed ofby the Commercial Division of Delhi High Court.Parties to such suits or applications may also approach the concerned District Courts for sending such suits or applications to Delhi High Courtfor disposal by the Commercial Division of Delhi High Court. All siich suits and applications that shall be recalled^ on receipt from the District Courts, in the first instance shall be listed before the Joint Registrars for fixation of dates for listing before the Commercial Division of the Delhi High Court."

5. The said Notification dated 28.4.2016 is issued as an addendum to the t earlierNotification dated24.11.2015. Thesaid Notification dated 28.4.2016 ^ states that suits and applications of commercial disputes which were transferred to the District Court vide Notification dated 24.11.2015 are to be recalled back to be heard bythe Commercial Division ofthis Court.

6. This court in the case of Kamal Sharma & Ors. vs. Blue Coast Infrastructure DevelopmentPvtLtd.(supra) also noted that even suits or applications which fell below the specified value of Rs.[1] crore being pending commercial disputes will continue to be heard by the commercial ^ division ofthis court.Relevantportion ofthejudgmentreadsasfollows:- ■L - "17. Consequently, pending cases involving a commercial dispute of the specified value of Rs.[1] crore and above, were ^ retainedinthisCourt forpurposeoftrial.

18. So far as the suits and applications, which were filed and pending prior to the enforcement of the Commercial Courts Act are concerned, the first proviso to Section 7 carves out a limited exception by providing that all suits and applications relating to commercial disputes, "stipulated by an Act to lie in a Court not inferior to a District Court", and filed or pending CM(M)836/2013 ~ on the original side of the High Court, shall be heard and disposed of by the Commercial Division ofthe High Court. This means that even ifsuch suits or applications fall below the specified value of Rs.l crore, the pending commercial disputes would continue to be heard by the Commercial Division of the High Court, provided that such commercial disputes,under a statutory stipulation, could lie in a Court not inferiorto the Courtofa District Court."

7. Reference may also be had to thejudgment ofthis Courtin the case ofGuiness WorldRecordsLimited V[5].SababbiMangal,230(2016)DLT 377wherein it was noted as follows:clear that the expression 'and filed' has been elaborated by the Legislature to mean those cases which are filed or ^ pendingi.eevenifacaseis pendingasonthe dateofbringingin the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, such pending. cases will be continued to be tried by the Commercial Division ofthe High Court irrespective ofthese matters not being above the specified value and being below the specified value upto Rs. 1 crore. There cannot be any other interpretation of the expression being ofthe words and 'filed or pending'asfound in the first proviso to Section7ofthe Act of2015.Ifthese words are to be interpreted to mean that cases which are filed and pending willhaveto betransferred sincetheirpecuniary value is rupees one crore, then the same will defeat the intention ofthe legislature in changing the language ofthe first proviso to Section7whereby the words 'and filed' has been ^ amendedto'andfiled orpending'."

8. Itis manifestfrom areading ofthe above Notification andjudgments ofthis courtthatthe matter being acommercial dispute which waspending before this court and was transferred to the District Court in view ofthe earlier Notification dated 24.11.2015 has now to bere-transferred backto be CM(M]836/2013 Page[4] / r heard bythe Commercial Division ofthis court.

9. The present petition is accordingly allowed. The matter will stand transferred from the court of Ms.Savita Rao, Additional District Judge (West) and will be listed before the concerned Joint Registrar on 21.12.2016.

10. Petitionand allpendingapplicationsstand disposed ofaccordingly.

JAYANT NATH,J NOVEMBER 02,2016 n