Delhi High Court
Sopl Private Limited Through ... vs Naveen Patel on 9 August, 2023
$~80
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 09.08.2023
+ FAO 178/2023 & CM APPL. 37228/2023
SOPL PRIVATE LIMITED THROUGH AUTORIZED
SIGNATORY HARSH KUMAR ..... Appellant
Through: Mr. Manoj Kumar Garg, Adv.
versus
NAVEEN PATEL ..... Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE POONAM A. BAMBA
POONAM A. BAMBA, J (Oral)
1.0. Vide this appeal, the appellant is assailing the order dated 13.07.2023
passed by Ld. ADJ-03, South, Saket Courts, New Delhi, in Civil Suit
no. CS no. 387/2023. Vide impugned order, ld. ADJ returned the
plaint to the appellant/plaintiff to adopt the procedure for filing of
commercial suit observing that in terms of Section 2 (c) Commercial
Courts Act, 2015 (The Act) the dispute in question would fall
within the domain of commercial court.
2.0. Ld. counsel for the appellant submits that no commercial dispute is
involved in the present case as the property in question is residential
in nature and was leased out to the respondent for the purpose of
residential as well as ‗services under bed and breakfast scheme'.
Thus, it was not leased exclusively for the purpose of trade and
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FAO 178/2023 Digitally Signed By:GEETA Page 1 of 4
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commerce. Reference in this respect is made to sale deed and lease
deed in question. Further, the appellant's suit for recovery of
possession, arrears of rent, mesne profit, damages and mandatory and
permanent injunction has been valued @ Rs. 10,84,623/-. Thus, the
suit was very much triable by the Ld. ADJ. In support of his
arguments, ld. counsel has relied upon the judgment of Hon'ble
Supreme Court dated 04.10.2019 in Civil Appeal no. 7843/2019, in
Ambalal Sarabhai Enterprises Ltd. vs. K.S. Infraspace LLP & Anr.
3.0. The ‗commercial dispute' is defined in Section 2 of the Commercial
Courts Act, 2015. Sub-clause (vii) of clause (c) of sub-section (1) of
the same reads:-
―2. Definitions.--(1)
(c) ―commercial dispute‖ means a dispute arising out of--
.............
(vii) agreements relating to immovable property used
exclusively in trade or commerce;‖
4.0. From the plain reading of the definition of the commercial dispute, it
is clear that dispute arising of agreement relating to immovable
property used exclusively in trade and commerce only, would fall in
the category of commercial dispute. It would be pertinent to refer
here to the judgment of this Court in Mrs. Soni Dave vs. M/s Trans
Asian Industries Expositions Pvt. Ltd. 2016 SCC Online Del 4282,
wherein this Court inter alia, observed that :-
―16. I may in this regard also observe that a property,
prescribed user whereof as per the law i.e. the Master Plan
and the municipal laws is residential, even if let out for use
exclusively in trade or commerce or when, without being so
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let out, is used exclusively in trade or commerce, the same
would still not qualify as an immovable property used
exclusively in trade or commerce within the meaning of
Section 2(1)(c)(vii) of the Commercial Courts Act. The
Commercial Courts Act has brought only disputes arising out
of transactions relating to immovable property used
exclusively in trade or commerce within the ambit of a
‗commercial dispute.' The legislature could not have
intended to bring disputes arising out of transactions relating
to immovable property illegally used exclusively in trade or
commerce within the ambit of commercial disputes. ....
18. Following the said principles, Section 2(1)(c)(vii) has to
be read and interpreted as 'immovable property which is
in accordance with law, used exclusively in trade or
commerce‟ and not as ‗immovable property which, in
contravention of law, is used exclusively in trade or
commerce.‖
5.0. In the instant case, as per the copy of the lease-deed dated 09.10.2019
placed on record by the appellant, the property bearing no. C-4/77/2,
First and second floor, Safdarjung Development Area, New Delhi,
was leased to the respondent for his ‗residence' as well as for the
purpose of ‗services under bread and breakfast scheme'. Thus the
property was not leased exclusively for the commercial
purpose/services under bread and breakfast scheme.
5.1. Further, as per the sale deed and the lease deed, clause 12 of which
reads :
―12.....Lessee shall be responsible for any penalty/levies
damage/surcharge/additional levies/additional taxes/increase in
Municipal taxes and any other taxes/charges because of change
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of use of the premises from residential to commercial due to the
use of premises by the lessee under the bed & breakfast
scheme/and/or any other use whatsoever. Any taxes (other than
residential use) on commercial operation by lessee shall be to
the account of lessee and shall be borne by the lessee‖,
the property in question is residential in nature.
6.0. In view of the above, the property has not been leased exclusively for
commercial purpose. Even otherwise, the property in question being
residential in nature, the dispute involved in the present case does not
fall within the definition of ‗commercial dispute' under Section 2 (1)
(vii) (c) of the Act.
7.0. The impugned order is therefore, set aside with direction to the ld.
ADJ to proceed in the matter as per law.
8.0. Appeal is disposed of, accordingly.
9.0. Pending application is closed.
POONAM A. BAMBA, J
AUGUST 9, 2023/csc
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