Delhi High Court
Sumer Singh & Anr vs Om Prakash Gupta & Ors on 17 January, 2017
$~7
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 17.01.2017
FAO(OS) 171/2016 & CM 21315/2016
SUMER SINGH & ANR ... Appellants
versus
OM PRAKASH GUPTA & ORS ... Respondents
Advocate who appeared in this case:
For the Appellants : Mr Anand Yadav
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. The present appeal is filed against the order dated 27.04.2016 passed by a
learned Single Judge of this court. The present appellants who were defendant
nos. 7&8 had contended before the learned Single Judge that the suit was a
commercial dispute falling under Section 2(1)(c)(vii) of the Commercial Courts,
Commercial Division and Commercial Appellate Division of High Courts Act,
2015. This contention was rejected by the learned Single Judge and as such the
suit was transferred to the District Court in view of the valuation of the suit being
less than Rs. 2 Crore.
2. The learned counsel for the appellants contended before us that the dispute
arises out of sale deeds and that sale deeds are agreements. He submits that the
property in question is used for trade and commerce.
3. The appellants‟ contention cannot be accepted, particularly, in view of our
decision in the case of Hindpal Singh Jabbal & Ors v. Jasbir Singh & Ors:
FAO(OS) 50/2016 decided on 22.08.2016 where the very issue was raised. In that
case one of the contentions was that sale deeds were covered under the definition
of commercial dispute and particularly under Section 2(1)(c)(vii). The said
provision stipulates that a commercial dispute means, inter alia, a dispute arising
out of an agreement relating to immovable property used exclusively in trade and
commerce. It is because of this that the learned counsel for the appellant attempted
to bring a „sale deed‟ within the expression „agreement‟ relating to immovable
property. This aspect has been considered by us in the aforesaid decision in
Hindpal Singh Jabbal & Ors (supra) in the following manner:-
"13. After having heard the learned counsel for the parties,
although we have sympathy for the appellant because of the twists
and turns this case has taken consequent upon amendments to the
Delhi High Court Act, 1966, in law, we do not find any infirmity
with the impugned order dated 14.12.2015. The reason being that
the present suit is essentially one seeking cancellation of General
Powers of Attorney, Sale Deeds and a decree for possession.
Neither General Powers of Attorney nor sale deeds can be
regarded as "agreements relating to immovable property". A sale
deed brings about a conveyance of property and cannot, by any
stretch of imagination, be construed as an "agreement relating to
immovable property". The distinction between a sale and a
contract for sale of immovable property has been brought out in
Section 54 of the Transfer of Property Act, 1882 itself in the
following manner:-
54. "Sale" defined.- "Sale" is a transfer of ownership in
exchange for a price paid or promised or part-paid and
part-promised.
Sale How made. - Such transfer, in the case of
tangible immoveable property of the value of one
hundred rupees and upwards, or in the case of a reversion
or other intangible thing, can be made only by a
registered instrument.
In the case of tangible immoveable property of a
value less than one hundred rupees, such transfer may be
made either by registered instrument or by delivery of the
property.
Delivery of tangible immoveable property takes
place when the seller places the buyer, or such person as
he directs, in possession of the property.
Contract for sale.- A contract for the sale of
immoveable property is a contract that a sale of such
property shall take place on terms settled between the
parties.
It does not, of itself, create any interest in or charge
on such property."
XXXX XXXX XXXX XXXX
16. We may also notice that the definition of commercial
dispute in Section 2(1)(c) indicates 21 different types of
transactions all of which pertain to contracts/agreements of
commercial transactions and none of which relate to any
conveyance of immovable property. Therefore, in our view the
subject matter of the present suit does not fall within the ambit of
"commercial dispute" as specified in Section 2(1)(c) of the
Commercial Courts Act. That being the case, Commercial
Courts Act would not apply and amendment brought to the
Section 5(2) of Delhi High Court Act, 1966 whereby the
pecuniary jurisdiction has been raised to in excess of rupees two
crores would clearly apply."
4. Consequently, the contention of the learned counsel for the appellants
cannot be accepted. A sale deed does not fall within the expression „agreement
relating to immovable property‟. That being the case, the dispute involved in the
present matter would not qualify as a commercial dispute within the meaning of
2(1)(c)(vii) of the said Act.
5. The appeal is dismissed. There shall be no orders as to costs.
BADAR DURREZ AHMED, J
ASHUTOSH KUMAR, J
JANUARY 17, 2017
kb
