Calcutta High Court
Anumati Consultancy And Services ... vs Wellside Global Private Limited on 24 November, 2022
1
ODC-1
CS/142/2020
GA/5/2021
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
[COMMERCIAL DIVISION]
ANUMATI CONSULTANCY AND SERVICES PVT. LTD.
Vs.
WELLSIDE GLOBAL PRIVATE LIMITED.
BEFORE :
The Hon'ble JUSTICE KRISHNA RAO
Heard On : 01.08.2022, 11.08.2022, 03.11.2022 & 07.11.2022
Order On : 24.11.2022
Appearance:
Mr. Ratnanko Banerjee, Sr. Adv.
...For the plaintiff.
Mr. S. N. Mitra, Sr. Adv.
Mr. Sankarsan Sarkar, Adv.
Mr. Shayak Mitra, Adv.
Mr. Mayank Kakrania, Adv.
...For the defendant.
ORDER
The plaintiff has filed the instant suit against the defendant praying for
dispensation of the requirement for pre-institution mediation under Section
12A of the Commercial Courts Act, 2015 and prayed for a decree for a sum of
Rs. 81,55,99,334/- along with interest at the rate of 18% per annum till the
realization of the said amount.
The plaintiff while filing the suit had also filed an application for urgent
relief and this Court has granted order of injunction restraining the defendant
from creating any third party interest over and in respect of such units without
the leave of the court.
The defendant has filed the instant application for rejection of plaint on
the ground that the dispute between the parties to the instant suit do not fall
within the definition of Commercial dispute as envisaged under Section 2(1)(c)
of the Commercial Courts Act, 2015.
In support of the application, the Counsel for defendant submits as
follows :-
In the year 2010, the plaintiff and the defendant have entered into an
oral agreement to purchase of the commercial units being entire 5th, 6th and 7th
floors of the proposed commercial building for a total sum of Rs.
15,75,00,000/-. It was also agreed between the parties that the said
commercial units would be constructed and handed over to the plaintiff within
a reasonable time. As per the oral agreement, the plaintiff has handed over
three cheques of Rs. 50,00,000/- each to the defendant as an advance towards
purchase of the said commercial units. The plaintiff has further paid an
amount of Rs. 12,00,00,000/- to the defendant between August, 2010 to
December, 2010 by way of separate cheques.
Even after the considerable time was passed after receipt of the payment,
the possession of the units were not handed over to the plaintiff and in the year
2015, the defendant had suddenly informed the plaintiff that proposed
commercial project had not been sanctioned by the Municipal Authorities and
instead a residential building was sanctioned.
The defendant had proposed the plaintiff, the plaintiff should purchase
residential units in a proposed ground plus 20 storied luxury residential
building by the name of "Wellside Camac" at 7, Ho-Chi-Minh Sarani, Kolkata-
700 071. The plaintiff had initially refused to purchase the residential units as
its requirement was commercial space and demanded refund of the investment
along with interest but the defendant had refused to return the said amount
accordingly the plaintiff had no other option to accept the proposal to purchase
residential units at the proposed project namely "Wellside Comac".
The defendant also requested that the amount already paid by the
plaintiff be treated as advance for purchase of residential units. On 12th
November, 2015, three separate agreements were entered between the parties.
Subsequent to the agreements entered between the parties, the defendant had
again demanded an amount of Rs. 56.70,000/- towards the service tax and the
plaintiff had also paid the same and thus the plaintiff has paid total amount of
Rs. 14,06,70,000/- on account of purchase of the proposed residential project.
Counsel for the defendant submits that from the aforesaid averments, it
is crystal clear that though initial the plaintiff intent to purchase commercial
units but subsequently the defendant failed to deliver the commercial units
and accordingly the plaintiff ready to purchase residential units and thus the
suit is not covered under the Commercial Courts Act.
Counsel for the defendant relied upon the following judgments :
i. (2020) 15 SCC 585 (Ambalal Sarabhai Enterprises Limited -
versus- K.S. Infraspace LLP and Anr.)
ii. (2020) 7 SCC 366 (Dahiben -versus- Arvindbhai Kalyanji
Bhanusali and Ors.)
iii. AIR 1955 SC 340 (Kiran Singh and Others -versus- Chaman
Paswan and Others).
iv. 2021 SCC Online Bom 5032 (Glasswood Realty Pvt. Ltd. &
Others -versus- Chandravilas Kailashkumar Kothari)
v. 2021 SCC Online Cal 4240 (Ladymoon Towers Private Limited
-versus- Mahendra Investment Advisors Private Limited)
vi. 2022 SCC Online Cal 2326 (Prime Hitech Textiles LLP -Versus-
Manish Kumar).
vii. (2004) 1 SCC 287 (Rafique Bibi -versus- Sayed Waliuddin and
Others).
Counsel for the plaintiff submits that:-
The defendant has filed the instant application only with the sole
objective to delay the proceedings of the suit as the defendant does not have
any defence on merits.
The disputes arise out of series of commercial transactions, arising out of
financial agreement and relates to a mercantile transaction. The dispute
between the parties falls within the purview of section 2(1)(c) of the Commercial
Courts Act, 2015 and is covered under the clause (vii) of the said Section.
The agreements entered between the parties on 12th November, 2015 in
which the for purchase of units from the defendant, the plaintiff intended to
use the same for its own commercial purpose.
Since inception when the transaction were made for the purpose of the
commercial units which establishes the commercial transactions and thus the
suit cannot be said to be non-commercial suit.
The plaintiff has filed an interlocutory application for grant of interim
order and the defendant has contested the said application on merit by filling
affidavit-in-opposition but the defendant has not taken such plea in the said
application and this Court has allowed the said application on merit and the
defendant has not challenged the said order and thus the same has reached its
finality.
In the same suit, the defendant has filed an application for extension of
time to file written statement and this court had allowed the same by imposing
cost upon the defendant and while disposing of the said application, this Court
has categorically held that the "the defendant in a Commercial Suit seeks
extension of time to file written statement."
In compliance of the order of extension, the defendant has filed written
statement and while accepting the written statement, this Court further held
that "It is a suit relating to a commercial dispute within the meaning of the
Commercial Courts Act, 2015."
Counsel for the plaintiff submits that after reading of the entire plaint
and the orders passed by this Court on various occasions, it is established that
the suit filed by plaintiff is commercial in nature as the transaction between
the parties are commercial in nature.
Counsel for the plaintiff relied upon the following judgments :
i. (2019) 8 SCC 416 (Pioneer Urban Land and Infrastructure Limited
and Another -versus- Union of India & Others)
ii. (1998) 9 SCC 138 (Authorised Officer (Land Reforms) -versus- M.M.
Krishnamurthy Chetty).
Heard the learned counsel for the respective parties, pursued the
application and the documents and the judgments relied by the parties.
Admittedly, as per averments of plaint, the plaintiff company is engaged
in the business of providing financial services and is non Banking Financial
Company registered with the Reserved Bank of India. The negotiation between
the plaintiff and the defendant were sale and purchase of commercial units
being the 5th, 6th and 7th floors of the proposed commercial buildings and the
plaintiff had paid an aggregating amount of Rs. 13.50 crores in total till
December, 2010.
Paragraph 9, 10, 11 and 12 of the plaint, reads as follows:-
"9. The proposed commercial building project never took off even though
considerable time passed after the date of payments. For reasons
not known to Gangaur, the development plan changed and in 2015,
Gangaur was suddenly informed by Wellside that the proposed
commercial project had not been sanctioned by the municipal
authorities and instead a residential building was sanctioned. In
this context, it was proposed by Wellside that against the monies
already paid to it by Gangaur, Gangaur should purchase residential
units in a proposed ground plus 20 storied luxury residential
building by the name of "Wellside Camac" at 7, Ho-Chi-Minh Sarani,
Kolkata 700071.
10. Gangaur initially refused to purchase the residential units, as its
requirement was of a commercial space and demanded refund of the
investment along with interest, but the same was refused by
Wellside. Having already paid considerable sums of money,
Gangaur had no other alternative but to accept the proposal to
purchase residential units at the proposes project called "Wellside
Camac".
11. In this regard, Gangaur had requested Wellside to treat the sum of
Rs. 13,50,00,000/- already paid by Gangaur as advance for
purchasing the residential units. A letter dated November 6, 2015,
was issued by Gangaur at the instance of Wellside for mutual
benefit and with the intention of facilitating the new agreement to
purchase residential flats instead of the commercial units. A copy of
the letter dated November 6, 2015 is annexed hereto and marked
"K".
12. In the circumstances, three separate written agreements all dated
November 12, 2015 were entered into and executed by and between
Vamscorp (India) Private Limited and Wellside Projects Private
Limited i.e. the predecessors-in-interest of the defendant on the one
hand and Gangaur, the predecessor-in-interest of the plaintiff, on
the other hand. Under these agreements, Gangaur agreed to acquire
on a 99 year lease from the predecessors-in-interest of the
defendant, Unit Nos. 12W, 13W and 14W (for short collectively "the
said units") located on the 12th, 13th and 14th floors respectively of
the proposed building "Wellside Camac" to be constructed by
Wellside. Each of these agreements was executed in respect of a
particular unit. The terms and conditions in all three agreements are
nearly identical and the same, inter-alia, contemplate as follows:-
i) Gangaur would be granted a lease of the said units for an initial
term of 99 years with an option for Gangaur to renew the same for
further ten terms of 99 years.
ii) In consideration for the same, Gangaur would pay a sum of Rs.
13,75,53,030/- in aggregate for all the three units as lump sum
premium for the lease together with further amounts as specified in
the agreements for the right to use the vehicle parking spaces, if
any. Gangaur had made payments to the tune of Rs. 13,50,00,000/-
already as consideration.
iii) Wellside would hand over to Gangaur the bare shell of the units
within a period of 48 months from the date of the agreement with a
maximum grace period of 6 months thereafter.
iv) In the event the agreements were terminated by either party, a
specified amount would stand forfeited in favaur of Wellside as
"mutually agreed pre-determined liquidated damages" from out of
the sums paid and deposited by Gangaur and the balance amount
was to be refunded by to Gangaur without any interest after
Wellside entered into an agreement in respect of the concerned units
with any other third party.
v) The Hon'ble High Court at Calcutta was conferred sole and exclusive
jurisdiction to determine all disputes arising out of and concerning
the agreements.
Copies of the three agreements all dated November 12, 2015, are annexed
hereto and marked "L", "M" and "N" respectively."
In the judgment reported in the case of Ambalal Sarabhai Enterprises
Limited (Supra), the Hon'ble Supreme Court held that :
"6. At the outset, it is noticed that the consideration required in the
instant case is as to whether the transaction between the parties herein
which is the subject-matter of the suit could be considered as a
"commercial dispute" so as to enable the Commercial Court to entertain the
suit. In that regard, it is necessary to take note of Section 2(1)(c)(vii) of the
CC Act, 2015. The said provision to the extent relevant is extracted here
below for reference.
"2. Definition. - (1) In this Act, unless the context otherwise
requires,-
(a) - (b) * * *
(c) "commercial dispute" means a dispute arising out of -
(i) - (vi) * * *
(vii) agreements relating to immovable property used exclusively in
trade or commerce;
(viii) - (xxii) * * *
From a perusal of the provision relied upon by the learned Senior
Advocates it is noticed that the disputes arising out of agreements relating
to immovable property used exclusively in trade or commerce will qualify to
be a commercial dispute to be tried by Commercial Courts. The question
therefore would be that, in the instant case though the parties have
entered into a sale transaction of the immovable property and presently in
the suit the registration of a mortgage deed pertaining to the immovable
property is sought, whether the immovable property involved could be
considered as being used exclusively in trade or commerce."
In the judgment reported in the case of Dahiben (Supra), the Hon'ble
Supreme Court held that :
"23.11. The test for exercising the power under Order 7 Rule 11 is
that if the averments made in the plaint are taken in entirety, in
conjunction with the documents relied upon, would the same result in a
decree being passed. This test was laid down in Liverpool & London S.P.
& I Assn. Ltd. v. M.V. Sea Success I which reads as :
"139. Whether a plaint discloses a cause of action or not is
essentially a question of fact. But whether it does or does not must
be found out from reading the plaint itself. For the said purpose, the
averments made in the plaint in their entirety must be held to be
correct. The test is as to whether if the averments made in the plaint
are taken to be correct in their entirety, a decree would be passed."
In the judgment reported in the case of Glasswood Realty Pvt. Ltd.
(Supra), the Bombay High Court held that:
"11. The moot question that arise for consideration is whether the
singular transaction by way of 'hand loan' would fall within the meaning of
'commercial dispute', as the Act of 2015 intend to cover only 'commercial
dispute'; and not any other form of dispute, where the basis of disagreement
between the parties has a non-commercial cause. Necessarily, the transaction
involved must have a commercial flavour and its genesis lies in the body that
the parties entered into the said transaction with a commercial purpose.
Dispute arising out of the transaction between the persons who are classified
in clause (i) of Section 2(c), only qualify to be covered by the definition of
'commercial dispute'.
15. Mr. Ganesh Murthy, learned counsel is justified in placing reliance
upon the decision of the Calcutta High Court in Ladymoon Towers Pvt.
Ltd. v. Mahendra Investment Advisors Pvt. Ltd., (IA No. GA/4/2021 in CS
99/2020 which involved identical facts and the observation of learned Single
Judge of the Calcutta High Court are worth to be reproduced, as it aptly apply
to the facts involved before me.
"The Delhi High Court in Kailash Devi Khanna v. DD Global Capital
Ltd.; 2019 SCC OnLine Del 9954 held that all suits for recovery of monies
cannot brought under Section 2(1)(c)(i) of the Act where the suit is not
based on any transaction relating to mercantile documents. The Bombay
High Court in Bharat Huddanna Shetty v. Ahuja Properties &
Developers; (Interim Application (L) No. 14350 of 2021) rejected the
contention that the suit should be treated as a commercial summary suit
on the mandate that the transaction had occurred between merchants,
bankers, financiers and traders and further clarified that transactions
between individuals where the plaintiff gives a friendly loan to a needy
friend will not be seen as a transaction in the course of ordinary business.
The Madras High Court in R. Kumar v. T.A.S. Jawahar Ayya (C.S. No.
431 of 2019) was of the view that since the plaintiffs did not transact in
the capacity of financiers, the dispute was not a "commercial dispute" and
that an ordinary transaction of the four classes of persons mentioned in
2(1)(c)(i) arising out of mercantile documents alone would fall within the
definition of a commercial dispute. The Calcutta High Court in Associated
Power Co. Ltd. v. Ram Taran Roy; AIR 1970 Cal 75 focused its gaze on
a "mercantile document" within the meaning of the First Schedule of the
City Civil Court Act, 1953 as a document between merchants and traders
where the construction, interpretation and meanings of words and clauses
of the mercantile documents would assume significance.
16. The decision of this Court in Manesh Rajkumar Kanhed v. Ramesh
Bhagwansa Walale, (Cr. Revision Application No. 143 of 2005, decided on
6.02.2007) also involve similar facts, the case being hand loan being
advanced. The following observation is made as under in para 10:
"10. Therefore, taking of hand-loan for whatever purposes, including
starting a business of agency, cannot come within the four corners of
definition of "commercial transaction" and, therefore, I hold that the finding
recorded by both the Courts below that the transaction between the parties
was a commercial transaction, is an error apparent from the record and
especially, when, it is admitted position that it was a hand-loan between
the relatives of each other"."
In the judgment reported in the case of Ladymoon Towers Private Limited
(Supra), the Coordinate Bench of this Court held that :
"The above discussion as to what would constitute a "commercial
dispute" under the options contemplated in Section 2(1)(c) of the Act is
important since courts generally tend to accept the listing of matters before
the Commercial Division or the Commercial Appellate Division of a 10 High
Court, as correct. The categorizations of matters before these Benches are
usually done by the concerned Department or by the occasional
assessment by the concerned court where a party takes objection to such
classification. The two indices which form the basis of the decision as to
the classification of a matter are (a) whether the dispute is a "commercial
dispute"; and if held to be in the affirmative (b) whether the Specified
Value of the subject-matter of the commercial dispute. Since the 2015 Act
prescribes a different procedural regime for adjudication of commercial
matters in line with the Statement of Objects and Reasons of the Act, it is
only desirable that a court undertakes an enquiry in fit cases as to
whether the matter should be listed before the Commercial Division before
going into the merits of the case.
The definition section of the 2015 Act only contemplates a
"commercial dispute" and not any other form of dispute where the basis of
disagreement between the parties has a non-commercial cause. The
gradation of disputes in Section 2(1)(c) taking into account all possible
forms of agreements from which a "commercial dispute" may arise, makes
it clear that the framers of the statute gave emphasis on the commercial
flavour of the transaction as opposed to agreements entered into between
parties without a commercial purpose. The qualification of the person being
a Merchant, Banker, Trader or Financier imparts an unimpeachable
commercial flavour to the transaction and the resulting dispute. The
Insolvency and Bankruptcy Code, 2016, for example, defines a dispute
from a broader perspective as any suit or arbitration 11 proceedings
relating to an existing debt - Section 5(6)(a). The commercial purpose
would generally mean a transaction by which a person's commercial or
economic interests may be advanced and would result in an economic
benefit to that person. It would not include an agreement where profit-
making is an incidental outcome of the transaction or may happen by
accident. Although, a "hand loan", for example, is given by a person or
entity to another with the expected outcome of the principal sum being
returned with interest, the essential commercial flavour in such a loan may
be lost by reason of the informal terms under which the money is lent and
advanced and the consequent uncertainty which may result therefrom. The
requirement of fixing the transaction within the ambit of Section 2(1)(c)(i),
namely, between the named classes of persons can be construed being in
aid of what the Act intends to cut down, namely, unnecessary wastage of
time on ascertaining whether a dispute is a commercial dispute. The
exhaustive categories of agreements in 2(1)(c)(i) - (xxii) leaves no doubt that
the 2015 Act seeks to bring within its fold an inclusive range of disputes
where the underlying purpose of the transaction is a commercial interest of
the parties."
In the instant case admittedly, initially the transaction between the
parties were for the commercial units but when the defendant failed to deliver
the commercial units due to non-sanction of building plan for commercial
purposes to the plaintiff, as per the request of the defendant, the plaintiff had
agreed to purchase residential units and it was agreed between the parties that
the amount paid by the plaintiff will be adjusted in the residential units and
accordingly three separate agreements have been entered between the parties
and to conclude the performance, as per demand of the defendant, the plaintiff
has also paid further amount as service tax. This Court has considered the
entire pleading of the plaint, specifically paragraph 9 to 12 and find that the
case of the plaintiff is not covered under Section 2(1)(c)(vii) of the Commercial
Courts Act, 2015. The Judgments referred by the defendant as mentioned
above, the same are squarely applicable in the present case. The Judgment
referred by the plaintiff reported in the Case of Pioneer Urban Land and
Infrastructure Limited and Another (Supra) is distinguishable.
As regard the submissions made by the plaintiff that the orders passed
by this Court dated 26th February, 2021 and 19th March, 2021 reached its
finality regarding the finding that this court that the suit relating to commercial
dispute, the plaintiff has relied upon the judgment reported in the case of
Authorized Officer ( Land Reforms)(Supra):
"2. According to the appellant once the judgment on the basis of
which the High Court had directed to dispose of the dispute relating to the
excess land had been reversed by this Court, the Authorised Officer was
justified in following the judgment of this Court instead of the judgment of
the High Court. It need not be pointed out that the order passed by the
High Court attained finality as it was not challenged before the Supreme
Court. The order passed by the High Court directing the Authorised Officer
to examine the dispute in the light of the judgment of the High Court in the
case of Naganatha Ayyar v. Authorised Officer [84 LW 69] became final
although the judgment on which the grievance had to be examined itself
was reversed later by this Court. We find no fault with the reasoning of the
High Court. It is well settled that even orders which may not be strictly
legal become final and are binding between the parties if they are not
challenged before the superior courts. In the result the appeal fails and it is
dismissed. No costs."
Learned Counsel for the defendant submits that at the time of passing an
orders dt. 26th February, 2021 and 19th March, 2021, there was no
adjudication regarding whether the suit is of commercial nature or not. This
Court while passing introductory orders held that the suit is relating to
commercial nature and thus the same cannot be taken into consideration as
final adjudication. Defendant has relied upon the judgment reported in the
case of Rafique Bibi (Supra) :
"6. What is "void" has to be clearly understood. A decree can be said to
be without jurisdiction, and hence a nullity, if the court passing the decree
has usurped a jurisdiction which it did not have; a mere wrong exercise of
jurisdiction does not result in a nullity. The lack of jurisdiction in the court
passing the decree must be patent on its face in order to enable the executing
court to take cognizance of such a nullity based on want of jurisdiction, else
the normal rule that an executing court cannot go behind the decree must
prevail.
8. A distinction exists between a decree passed by a court having no
jurisdiction and consequently being a nullity and not executable and a decree
of the court which is merely illegal or not passed in accordance with the
procedure laid down by law. A decree suffering from illegality or irregularity
of procedure, cannot be termed inexecutable by the executing court; the
remedy of a person aggrieved by such a decree is to have it set aside in a
duly constituted legal proceedings or by a superior court failing which he must
obey the command of the decree. A decree passed by a court of competent
jurisdiction cannot be denuded of its efficacy by any collateral attack or in
incidental proceedings."
The defendant also relied upon the judgment reported in the case of
Kiran Singh and Others (Supra) held that :
"6. The answer to these contentions must depend on what the
position in law is when a court entertains a suit or an appeal over which it
has no jurisdiction, and what the effect of Section 11 of the Suits Valuation
Act is on that position. It is a fundamental principle wellestablished that a
decree passed by a court without jurisdiction is a nullity, and that its
invalidity could be set up whenever and wherever it is sought to be
enforced or relied upon, even at the stage of execution and even in
collateral proceedings. A defect of jurisdiction, whether it is pecuniary or
territorial, or whether it is in respect of the subject-matter of the action,
strikes at the very authority of the court to pass any decree, and such a
defect cannot be cured even by consent of parties. If the question now
under consideration fell to be determined only on the application of general
principles governing the matter, there can be no doubt that the District
Court of Monghyr was coram non judice, and that its judgment and decree
would be nullities. The question is what is the effect of Section 11 of the
Suits Valuation Act on this position."
The order passed by the Court on 26th February, 2021 is in connection
with extension of time to file written statement and the order dated 19th March,
2021 with regard to acceptance of written statement in terms of Order dt. 26th
February, 2021. In both the orders, there was no adjudication whether the suit
is of commercial nature or not. As the suit was filed in the Commercial Court
and dispute was raised, accordingly this Court held that the suit relates to
commercial dispute.
Now, the defendant has raised an issue in the instant application with
regard to jurisdiction of this Court as the suit filed by the plaintiff is not relates
to commercial dispute and now this Court upon exchange of affidavits heard
the matter on merit and thus it cannot be said that the defendant has waived
his right to raised objection with regard to jurisdiction of this Court. The
judgment passed by the Hon'ble Supreme in the case of Kiran Singh and
Others (Supra) it was clarified that it is a fundamental principle well
established that a decree passed by a Court without jurisdiction is a nullity,
and that its invalidity could be set up whenever and wherever it is sought to be
enforced or relied upon, even at the stage of execution and even in collateral
proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or
whether it is in respect of the subject-matter of the action, strikes at the very
authority of the Court to pass any decree, and such a defect cannot be cured
even by consent of the parties. In view of the above the contention of the
plaintiff is negated.
Now the question whether the suit is to be transferred to the Ordinary
Original Civil Jurisdiction or the plaint is to be returned to the plaintiff, in this
connection in the judgment reported in (2014) 1 SCC 648 (Oil and Natural Gas
Corporation Ltd. -vs- Modern Construction and Company), the Hon'ble
Supreme Court held that :-
"17. Thus, in view of the above, the law on the issue can be
summarised to the effect that if the court where the suit is instituted, is of
the view that it has no jurisdiction, the plaint is to be returned in view of
the provisions of Order 7 Rule 10 CPC and the plaintiff can present it
before the court having competent jurisdiction. In such a factual matrix, the
plaintiff is entitled to exclude the period during which he prosecuted the
case before the court having no jurisdiction in view of the provisions
of Section 14 of the Limitation Act, and may also seek adjustment of court
fee paid in that court. However, after presentation before the court of
competent jurisdiction, the plaint is to be considered as a fresh plaint and
the trial is to be conducted de novo even if it stood concluded before the
court having no competence to try the same.
21. Thus, the respondent cannot take the benefit of its own mistake.
The respondent instituted the suit in the civil court at Mehsana which
admittedly had no jurisdiction to entertain the suit. In spite of the fact that
the civil suit stood decreed, the High Court directed the court at Mehsana
to return the plaint in view of the provisions of Order 7 Rule 10 CPC. Thus,
the respondent presented the plaint before the Civil Court at Surat on 3-2-
1999."
The above judgment is confirmed by the Hon'ble three Judge's Bench in
the case reported in (2020) 12 SCC 667 (EXL Careers and Another -vs-
Frankfinn Aviation Services Private Limited) and held that : -
"16. We find no contradiction in the law as laid down in Modern
Construction pronounced after consideration of the law and precedents
requiring reconsideration in view of any conflict with Joginder Tuli. Modern
Construction (supra) lays down the correct law. We answer the reference
accordingly.
20. The statutory scheme now becomes clear. In cases dealing with
transfer of proceedings from a Court having jurisdiction to another Court,
the discretion vested in the Court by Sections 24(2) and 25(3) either to
retry the proceedings or proceed from the point at which such proceeding
was transferred or withdrawn, is in marked contrast to the scheme under
Order 7 Rule 10 read with Rule 10-A where no such discretion is given and
the proceeding has to commence de novo."
Considering the settled position of law, the plaint of the instant suit is
return to the plaintiff to present it before the Court having competent
jurisdiction.
GA 5 of 2021 is accordingly disposed of.
(KRISHNA RAO, J.)
p.d/
