Delhi High Court
Rita Agarwal vs Uday Medicare Pvt Ltd & Ors on 23 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23rd April, 2018
+ CS(COMM) 786/2017 & IAs No.13397/2017 (u/O XXXIX R-
1 & 2 CPC), 13398/2017 (u/S 151 CPC)
RITA AGARWAL ..... Plaintiff
Through: Mr. Sougat Sinha, Adv.
Versus
UDAY MEDICARE PVT LTD & ORS ..... Defendants
Through: Mr. Arvind Sah, Adv. for D-2 &3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The suit is ripe for framing of issues but the counsel for the
plaintiff states that replication/rejoinder remains to be filed and seeks
an adjournment.
2. While refusing adjournment, it is found that this suit is for
recovery of Rs.1,42,00,000/- which is below the minimum pecuniary
jurisdiction of this Court and was filed in this Court by labelling the
same as a 'commercial suit' and in which capacity the suit has been
entertained.
3. The counsel for the plaintiff, on enquiry as to how the suit
qualifies as a commercial suit, first states that it qualifies as a
commercial suit because it relates to a commercial matter.
4. However on further enquiry, whether all suits which may be
deemed relating to commercial matters would qualify as a commercial
suit, the counsel for the plaintiff states that commercial dispute has
been defined.
CS(COMM) No.786/2017 Page 1 of 4
5. Upon being shown Section 2(1)(c) of the Commercial Courts,
Commercial Division and Commercial Appellate Division of the High
Courts Act, 2015 and on being enquired as to under which clause the
dispute subject matter of this suit falls, the counsel first states that the
suit falls in sub-clause (i) as it relates to ordinary transactions of
Merchants, Bankers, Financiers and Traders.
6. However, a perusal of plaint shows the claim of the plaintiff to
be (i) that the defendants No.2 & 3 namely Mr. Nilesh Kumar Singh
and Mr. Ritesh Singh Pundir are the promoters of the defendant No.1
company; (ii) That the defendants No. 2 & 3 represented to the
plaintiff that the defendant No.1 was in the process of purchasing land
measuring 3300 sq. yards in Ghaziabad, UP and offered to the plaintiff
25% stake in the defendant No.1 company on payment of
Rs.1,42,00,000/- as loan by the plaintiff to the defendant No.1 and of
Rs.33,000/- to the defendant No.3 namely Mr. Ritesh Singh Pumdir as
consideration for transfer of 33,000 shares of defendant No.1 in favour
of the plaintiff; (iii) That the defendant Nos.2 and 3, however, neither
brought the money on their own in the defendant no.1 nor made
anybody else become a shareholder in the defendant no.1 and have
siphoned of the amount of Rs.1,42,00,000/- paid by the plaintiff to the
defendant no.1, to the defendant No.4 Sun Infratrade Private Ltd.
7. I have enquired from the counsel for the plaintiff, how the suit
for recovery of loan of Rs.1,42,00,000/- so given qualifies as a
transaction between Merchants, Bankers, Financiers and Traders
within the meaning of Section 2(1)(c) supra.
CS(COMM) No.786/2017 Page 2 of 4
8. The counsel for the plaintiff then draws attention to Clause (xii)
of Section 2(1)(c) which constitutes dispute arising out of
shareholders' agreements as commercial dispute and also draws
attention to para 21 of the plaint where the plaintiff has pleaded receipt
of Rs.1,42,00,000/- by misrepresentation and of siphoning thereof.
9. However, the claim of the plaintiff as aforesaid is of loan
transaction and not of the amount, for recovery of which the suit has
been filed, being paid as subscription towards shares. Admittedly,
there is no shareholders agreement in writing.
10. The counsel for the plaintiff next draws attention to Clause (vii)
of Section 2(1)(c) which constitutes dispute arising out of the
agreement relating to immovable property used exclusively in trade or
commerce, as commercial disputes.
11. Though in the plaint there is no plea of the land proposed to be
acquired being for trade or commerce but the counsel for the plaintiff
states that in the Board of Resolution of the defendant No.1, extract
whereof is filed, it is so referred.
12. The very fact that the counsel has jumped from provision to
provision to somehow or the other fit the suit into the category of
commercial suit when admittedly it does not, shows the fickleness of
the label given to the suit as a commercial suit.
13. The dispute subject matter of the present suit is thus not found
to qualify as a commercial dispute and the suit has been wrongly
labelled as a commercial suit.
14. Else, admittedly the suit claim is below the minimum pecuniary
jurisdiction of this Court.
CS(COMM) No.786/2017 Page 3 of 4
15. The plaint, in accordance with the rules, is thus ordered to be
returned along with court fees and all original documents to the
plaintiff for filing in the Court of appropriate jurisdiction.
RAJIV SAHAI ENDLAW, J.
APRIL 23, 2018
'bh'..
