P&M Movies Private Limited vs Sapna @ Sapna Choudhary
2022 Latest Caselaw 3423 Del

                              2022/DHC/005677




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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of decision: 16th December, 2022

+      CM(M) 1007/2021

       P&M MOVIES PRIVATE LIMITED              ....Petitioner
                    Through: Mr. Karan Luthra, Advocate
                    versus

       SAPNA @ SAPNA CHOUDHARY                  .....Respondent
                    Through: Mr. Anil K. Aggarwal and Ms.Neetu
                             Yadav, Advocates for review
                             petitioner/respondent

       CORAM:
       HON'BLE MR. JUSTICE AMIT BANSAL

AMIT BANSAL, J. (Oral)

CM No. 29819/2022 (for condonation of delay of 162 days)

1. Counsel for the respondent does not seriously oppose the present application.

2. For the reasons stated, the present application is allowed and the delay in filing the review petition is condoned.

3. The application is disposed of.

Review Pet. No.159/2022

4. By way of the present petition, review of the judgment dated 12th November, 2021 passed by this Court is sought. Notice in the review petition was issued on 8th July, 20222 and reply thereto has been filed on behalf of the respondent/petitioner/plaintiff [hereinafter "respondent"].

5. The review petitioner/respondent/defendant [hereinafter "review

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petitioner"] seeks review on the following grounds:

(i) The judgment under review was passed in violation of principles of natural justice as the said order was passed without issuing notice to the review petitioner.

(ii) The aforesaid judgment has been passed in violation of the practice directions dated 5th December, 2019 of this Court.

(iii) In view of the finding of the Commercial Court that the subject matter of the suit was not a "commercial dispute," the plaint ought to have been returned to the plaintiff in terms of Order VII Rule 10 of the Code of Civil Procedure, 1908 (CPC).

(iv) The Commercial Court committed an error in sending the file of the case to the Principal District & Sessions Judge. In terms of Section 24 of the CPC, such a transfer from a Commercial Court to the court of another Additional District Judge (ADJ) could not have been made.

(v) That the ADJ had correctly exercised his discretion of issuing of fresh notice to the review petitioner in the impugned order dated 3 rd June, 2022. There was no perversity in the same and therefore, this Court could not have interfered with the said order in exercise of its jurisdiction under Article 227 of the Constitution of India.

6. In response, counsel for the respondent makes the following submissions:

(i) In terms of the practice directions issued by this Court on 5 th December, 2019, there was no requirement of advance service to be made to the review petitioner if she was proceeded ex parte before the Trial Court. In the present case, since the review petitioner had failed to enter appearance before the Trial Court, there was no requirement

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to comply with the requirement of advance service. In terms of paragraph 5(b) of the aforesaid practice directions, in the event the opposite party does not appear before the court, the court is empowered to issue appropriate orders without any further notice on such party.

(ii) The order dated 4th March, 2021 passed by the Commercial Court clearly notes that the review petitioner/defendant has been duly served with the summons of the suit and has failed to enter appearance within the prescribed period of ten days from the date of service of summons. The review petitioner did not challenge the aforesaid order.

(iii) The order passed by the Commercial Court on 27 th March, 2021 merely sent the file of the case to the Principal District & Sessions Judge, to be assigned to a court of competent jurisdiction in view of the finding of the Commercial Court that the subject matter of the suit was not in the nature of a commercial dispute. Pursuant thereto, the Principal District & Sessions Judge (HQs) assigned the suit to the court of ADJ-3(Central), Tis Hazari Courts, Delhi. This is merely a question of roster allocation and no exception can be taken to the same.

(iv) The conduct of the review petitioner has throughout been dishonest.

She deliberately did not appear in the suit despite service of summons and having full knowledge about the suit. Therefore, she cannot be allowed to take these procedural defences so as to defeat the ends of substantive justice.

(v) There is no error apparent on the face of the record in the order dated 12th November, 2021 passed by this Court that calls for a review.

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                                                           BANSAL

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(vi) After passing of the order by this Court on 12 th November, 2021, a final decree was passed against the review petitioner on 23 rd March, 2022. Therefore, the remedy of the review petitioner would be under Order XXXVII Rule 3(4) of the CPC.

7. I have heard the rival submissions of the counsels for the parties.

8. At the outset, it may be appropriate to refer to the relevant provisions of the practice directions dated 5th December, 2019, which are set out below:

"1. Advance Service of Petition:-

(a) In a Civil Miscellaneous (Main) Petition under Article 227 of the Constitution of India or Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 arising from an order in a pending proceeding before a Court subordinate to the High Court, an advance copy of the paper book shall be served upon each opposite party or their counsel (if any) who appeared last for such opposite party in the Trial Court.

Provided that the requirement of service of advance copy of the paper book is dispensed with in respect of such opposite parties who have been proceeded ex parte before the Trial Court.

xxx xxx xxx

5. Appearance on the first date of listing:-

...

(b) In case any opposite party does not appear before the Court upon advance service of the petition, the Court may not issue any further notice to such opposite party and may pass any order(s) as it may deem fit and proper in the facts and circumstances of the case."

9. It is clear from a reading of the above that since the review petitioner Signature Not Verified Digitally Signed By:AMIT BANSAL

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did not enter appearance before the Trial Court despite service, there was no requirement to serve an advance copy of the present petition in terms of proviso to paragraph 1 of the practice directions. Therefore, in terms of paragraph 5 read with the proviso to paragraph 1 of the aforesaid practice directions, it is within the power of the Court to pass appropriate orders as it may deem fit and proper in the facts and circumstances of the case, without issuing notice to the opposite party (review petitioner in the present case). Therefore, I do not accept the submission advanced on behalf of the review petitioner that the judgment was passed in violation of the aforesaid practice directions or the principles of natural justice.

10. Next, reference may be made to the order dated 4th March, 2021 passed by the Commercial Court, which is set out below:

"Perusal of record shows that the matter is pending for service of summons of the suit in Form No. 4 in Appendix B of the Code of Civil Procedure, 1908 upon the Defendant. Summons of the suit issued to the Defendant through ordinary process at her Delhi address received back with the refusal report as reflected in the report of the Process Server dated 04.02.2021. Summons of the suit issued to the Defendant through Speed Post as well as through Authorized Courier are reported to be served on 04.02.2021 through Speed Post declaring „Item Delivered Confirmed‟ and on 03.02.2021 at Delhi address of the Defendant through courier and on the Gurugram address of the Defendant through courier on 04.02.2021 with the endorsement "Successfully Delivered".

Counsel for the Plaintiff has also placed the Speed Post tracking report with receipts and Courier receipts on the record.

I have carefully gone through the said reports and receipts and I am satisfied that the Defendant has been duly served with the summons of the suit on 03.02.2021 and on 04.02.2021 through

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the modes as mentioned here-in-above but nobody has entered appearance on behalf of the Defendant within the statutory period of 10 days of such service of the summons of the suit upon the Defendant.

In the circumstances, as per the provisions of Order XXXVII CPC in default of her entering the appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree.

It is to be noted that the factual matrix of the suit and the documents annexed thereto is voluminous and requires substantial time for consideration. In the meantime, the counsel for the plaintiff to file the brief written submissions.

Put up on 27.03.2021 for judgment."

11. It is apparent from the aforesaid order that the respondent was entitled to a decree under the provisions of Order XXXVII of the CPC on the same date, on account of the refusal report in respect of ordinary service as well as the service report for other modes. However, the matter was posted for judgment on 27th March, 2021 by the Commercial Court, on which date the Commercial Court came to the conclusion that the subject matter of the suit was not a commercial dispute and consequently referred the matter to the Principal District & Sessions Judge (HQs), Tis Hazari Courts, to be assigned to a court of competent jurisdiction. The relevant part of the order dated 27 th March, 2021 is set out below:

"In view of above and in the circumstances, let the case file complete in all respects be sent to the Court of learned Principal District & Sessions Judge (HQs), Tis Hazari Courts, Delhi with a prayer to withdraw this case from my Court and to assign the same to the competent Court of jurisdiction, for 06.04.2021."

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12. Pursuant thereto, the Principal District & Sessions Judge (HQs) withdrew the suit from the Commercial Court and transferred the same to another ADJ. The relevant part of the order dated 6 th April, 2021 is set out below:

"In view of the order dated 27.03.2021 this suit is withdrawn and transferred to the court of Ms. Geetanajali, Ld. ADJ Central Tis Hazari Courts, Delhi for proceeding further in accordance with law."

13. The aforesaid order clearly notes that the suit has been transferred for "proceeding further in accordance with law". This is a routine roster allocation order passed by the Principal District & Sessions Judge, who is authorised to do so as per the powers vested in him under Section 24 of the CPC, of transferring a case from one court to another. Therefore, it was clearly stipulated in the order that the proceedings before the transferee court would be in furtherance of the proceedings conducted till then. Since the review petitioner already stood served in the suit and failed to enter appearance, the transferee court could not have turned back the clock and directed fresh service on the review petitioner. On account of non-

appearance by the review petitioner, in terms of Order XXXVII of the CPC, the respondent was entitled to a judgment forthwith in its favour. In paragraph 11 of the judgment dated 12th November, 2021, it was observed as under:

"Valuable rights have been created in favour of the petitioner on account of the respondent failing to enter appearance within the prescribed period and the same cannot be defeated by issue of fresh summons to the respondent."

14. I do not find merit in the submission of the review petitioner that the

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Commercial Court did not have the jurisdiction to entertain and try the present suit as it was an ordinary suit and therefore, all orders passed by the Commercial Court were without jurisdiction. In this regard, counsel for the review petitioner has placed reliance on the administrative order dated 7th July, 2018 issued by this Court in terms of which all District Judges/Additional District Judges are nominated as Commercial Courts to deal with commercial matters valued between Rs.3,00,000/- to Rs.2,00,00,000/-. The relevant portion of the said order is set out below:

"In pursuance of Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Ordinance, 2018, Hon'ble the Acting Chief Justice and Hon'ble Judges of this Court have been pleased to order that all the District Judges/Additional District Judges of respective districts are nominated as commercial courts, as an interim measure to deal with the commercial matters valued between rupees three lacs to rupees two crores."

15. The aforesaid order was withdrawn by a subsequent administrative order dated 10th October, 2022. However, this was after orders in the present suit had already been passed by the Commercial Court. Therefore, it cannot be said that the Commercial Court did not have inherent jurisdiction to entertain and try the present suit and that the various orders passed by the Commercial Court were without jurisdiction.

16. There are instances where a commercial suit is filed before this Court and the Court comes to a conclusion that the suit so filed is not commercial suit or vice versa, where the suit is filed as an ordinary suit and the Court comes to the conclusion that the same is a commercial suit. In such cases, the plaint is not liable to be returned under provisions of Order VII Rule 10 of the CPC. Reference in this regard may be made to Rachit Malhotra v.

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One97 Communications Limited, 2018 SCC OnLine Del 12410.

17. In Rachit Malhotra (supra), this Court held as under:

"18. The last contention of the counsel for the applicant/defendant is, that though the present suit qualified as a commercial suit, but the plaintiff has filed as an ordinary suit and the suit has been registered as such and is liable to be rejected. Attention in this regard is drawn to Section 7 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Commercial Courts Act). However, on enquiry, as to which is the Commercial Division of this Court, the counsel for the applicant/defendant admits that the suit is pending in this Court which is a Court of Ordinary Civil Jurisdiction as well as Commercial Division of the High Court.

19. I have also enquired from the counsel for the applicant/defendant, whether not it is only a case of nomenclature and even if this suit were to be a commercial suit, the same can always be registered as a commercial suit.

20. The counsel for the applicant/defendant states that the plaint does not contain the declaration as a plaint in a commercial suit is required to contain.

21 Even if that be so, it has been held in Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2006) 1 SCC 75, Union of India v. Shanti Gurung, 2014 SCC OnLine Del 989, Haldiram (India) Pvt. Ltd. v. HaldiramBhujiawala, 2009 (109) DRJ 647 (SLP(Civil) No. 11587/2009 preferred whereagainst has been dismissed vide order dated 14th May, 2009) that non-compliance with procedural requirements should not entail automatic dismissal or rejection if the defect or irregularity is curable."

18. In Apnaghar Builders Pvt. Ltd. v. Intense Fitness and SPA Pvt. Ltd., 2021 SCC OnLine Del 418, this Court held as under:

"19. There is another reason why the said application is to be

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dismissed. As observed by this court in Rachit Malhotra (supra), ultimately it is only a case of nomenclature and, even if, this suit was to have been found to be a commercial suit, it could always be registered as a commercial suit by directions of this Court. Such a mis-description of the suit cannot entail its rejection. When a suit is re-numbered, as a commercial suit, obviously, Section 12A of the Act, would not and cannot come into play. Of course, the discretion of the court still remains under Section 89 of the CPC, to refer the parties to mediation, to work out an amicable settlement between the parties before embarking on the trial, subject of course, to the timeframe provided under the Act."

19. To similar effect are the judgments in Kailash Devi Khanna v. DD Global Capital Ltd., 2019 SCC OnLine Del 9954 and De Lage Landen Financial Services India Pvt. Ltd. v. Evan Multispeciality Hospital & Research Centre Pvt. Ltd., 2019 SCC OnLine Del 7762.

20. The reasoning of the aforesaid orders would equally be applicable to the District Courts. If the Commercial Court comes to a conclusion that a suit has wrongly been filed as a commercial matter and the subject matter thereof is not a commercial dispute or vice versa, that the suit has been filed as an ordinary suit when it is a commercial suit, the correct course to follow would be to refer the suit to the Principal District & Sessions Judge for allocation to a court of competent jurisdiction, which is what was done in the present case. There is no merit in the submission of the review petitioner that the Commercial Court ought to have returned the suit under provisions of Order VII Rule 10 of the CPC for it to have been filed again as an ordinary suit. Axiomatically, there is no merit in the submission that the earlier orders passed by the Commercial Court before the transfer of the suit were without jurisdiction.

21. Counsel for the petitioner has drawn my attention to the order dated

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8th April, 2021 passed in W.P.(Crl.) 568/2021 filed on behalf of the review petitioner, wherein it has been admitted on behalf of the petitioner that the review petitioner was aware of the present suit. Despite this, the review petitioner did not appear in the suit or take any steps therein. The order dated 4th March, 2021 shows that the review petitioner was served through speed post as well as courier on multiple occasions at her Delhi address as well as her Gurugram address, but refused to accept ordinary service and has now taken all these technical objections by filing the present application belatedly, almost six months after the judgment was passed in the present case. Despite this, the review petitioner did not enter appearance so as to contest the suit on merits and is now taking all these technical defences. It is a settled principle of law that procedure is only handmaiden of justice and cannot be invoked by dishonest litigants to defeat the ends of substantive justice. Reference in this regard may be made to Mohammed Yusuf v. Faij Mohammad and Others, (2009) 3 SCC 513.

22. In view of the discussion above, no grounds for review are made out. The review petition is dismissed.

AMIT BANSAL, J.

DECEMBER 16, 2022 dk

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