Delhi High Court
Aneeta Leekha vs Kotak Mahindra Bank Ltd on 27 March, 2025
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 27th March, 2025
+ FAO 75/2025 & CM APPL. 18015/2025
ANEETA LEEKHA .....Appellant
Through: Mr. Raman Gandhi, Adv.
versus
KOTAK MAHINDRA BANK LTD .....Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
DHARMESH SHARMA, J. (ORAL)
CM APPL. 18016/2025- (EXMP).
1. Allowed, subject to all just exceptions.
2. Application is disposed of.
FAO 75/2025 & CM APPL. 18015/2025
3. The appellant is preferring this appeal under Order XLIII Rule 1
of the Code of Civil Procedure, 1908 ["CPC"], thereby assailing the
impugned order dated 28.02.2025 whereby the learned District Judge-
02 & Wakf Tribunal, New Delhi District, Patiala House Courts, New
Delhi ["learned DJ"] has held that the dispute raised by the appellant
is of a commercial nature and covered by Section 2(1)(c)(vii) read
with Rule 2(1)(c)(xxii) of the Commercial Courts Act, 2015 ["CC
Act"].
4. No one is present for the respondent despite sending advance
notice.
KUMAR VATS
Signing Date:28.03.2025
16:15:42
5. Having heard the learned counsel for the appellant, this Court
has no hesitation in finding that the present appeal is bereft of any
merits.
6. In a nutshell, the appellant/plaintiff filed a suit seeking
recovery of Rs. 32,24,803.96 Paisa from the respondent/bank and her
case was that the respondent/bank was in occupation of basement and
ground floor of the subject property belonging to her as well as her
siblings pursuant to registered lease deed dated 18.03.2008, which
stipulated payment of monthly rent of Rs.5,60,000/- to all the five
lessors i.e. herself, her mother and three siblings and at the time of
execution of lease deed a security deposit of Rs. 33,60,000/- was made
by the respondent/bank, in the sum of Rs. 6,72,000/- in each of their
favour. It was stated that monthly rent of Rs. 7,73,925/- was being
paid by the respondent/bank and the appellant/plaintiff's share of Rs.
1,54,785/- was being remitted to her account, which included
component of service tax as well as TDS 1. It was the case of the
appellant/plaintiff that although possession of the subject property had
to be delivered by the respondent/bank by 30.06.2017, however, lease
was extended and possession of the subject property was delivered on
30.09.2017. It was stated that the mother of the appellant/plaintiff
died on 06.08.2011, and thereafter, she filed another suit for partition
of the subject property which is subjudice. Her grievance in the instant
suit/appeal is that despite the determination of lease deed on
30.09.2017, rent for the period from 06.08.2011 to 30.09.2017 has
been withheld by the respondent/defendant-bank. The said suit came
1 Tax Deducted at Source
KUMAR VATS
Signing Date:28.03.2025
16:15:42
up for hearing before the learned DJ and the following order was
passed, which is assailed in the present appeal:
"3. At the time of arguments, it came to the notice of this court
that the property is commercial property and this dispute is covered
within the meaning of "commercial dispute" as defined U/s 2 (1)
(c) and by relying upon section 2 (l)(c)(vii) R/w explanation U/s
2(1)(c)(xxii) of The Commercial Courts Act, 2015. The
observation of the court is further supported by the judgment of
Hon'ble Delhi High Court in the matter of Jagmohan Behl vs.
State Bank of Indore PAP (OS) No. 166/2016, wherein the facts
of the present case is in para materia to the decided case by Hon'ble
High Court of Delhi, where such disputes are defined as
commercial dispute.
4. Since the dispute is a commercial dispute and as per
Section 6 of The Commercial Courts Act, categorically bars the
jurisdiction of Civil Courts, whereby this case can only be
adjudicated by the Commercial Courts.
5. Since commercial dispute is to be adjudicated by
Commercial Court. The present suit is returned to the plaintiff to
file it before competent court relying upon the judgment of Hon'ble
High Court of Delhi in case titled as Rajeev Mittal Vs.
Commissioner, North Delhi Municipal Corporation 2024 SCC
OnLine DEL 4832.
6. The only power vests in this court to deal with such cases is
to return the plaint. Accordingly, plaint is returned."
7. Learned counsel for the appellant/plaintiff submitted that the
suit is not covered by the CC Act for which he relied on the decision
in Jagmohan Behl v. State Bank of Indore2. I am afraid the cited
case is of no help to the appellant. It was a case where the plaintiff
filed a suit seeking possession/ejectment against the respondent/bank
on 27.10.2001, which was decreed under Order XII Rule 6 of the CPC
vide order dated 01.05.2002. However, on a Regular First Appeal
being filed by the defendant/bank, the execution proceedings were
2 2017 SCC OnLine Del 10706
KUMAR VATS
Signing Date:28.03.2025
16:15:42
stayed. The plaintiff inter alia had also sought a decree for mandatory
injunction and mesne profits w.e.f. 01.09.2010 till the date of decree
@ Rs.18,000/- per day. In the appeal proceedings before this Court,
an undertaking of the respondent/bank was taken on record and the
lease was extended for a period of six months, subject to the
respondent/bank making payment of Rs. 2,75,000/- towards
rent/mesne profits and continue to pay consumption charges towards
water and electricity till occupation. Suffice it to state that the learned
Single Judge of this Court vide order dated 01.03.2016 held that the
suit was not of a commercial nature as no right under an agreement
relating to immovable property was sought to be enforced, inasmuch
as the suit only sought recovery of rent and mesne profits. On an
appeal being filed by the plaintiff/appellant therein, the decision of the
learned Single Judge was set-aside and the following observations
were made:
"12. The explanation stipulates that a commercial dispute shall not
cease to be a commercial dispute merely because it involves
recovery of immoveable property, or is for realisation of money out
of immoveable property given as security or involves any other
relief pertaining to immoveable property, and would be a
commercial dispute as defined in sub-clause (vii) to clause (c). The
expression "shall not cease", it could be asserted, has been used so
as to not unnecessarily expand the ambit and scope of sub-clause
(vii) to clause (c), albeit it is a clarificatory in nature. The
expression seeks to clarify that the immoveable property should be
exclusively used in trade or commerce, and when the said
condition is satisfied, disputes arising out of agreements relating to
immoveable property involving action for recovery of immoveable
property, realization of money out of immoveable property given
as security or any other relief pertaining to immoveable property
would be a commercial dispute. The expression "any other relief
pertaining to immoveable property" is significant and wide. The
contours are broad and should not be made otiose while reading the
explanation and sub-clause (vii) to clause (c) which defines the
KUMAR VATS
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16:15:42
expression "commercial dispute". Any other interpretation would
make the expression "any other relief pertaining to immoveable
property" exclusively used in trade or commerce as nugatory and
redundant.
13. Harmonious reading of the explanation with sub-clause (vii) to
clause (c) would include all disputes arising out of agreements
relating to immoveable property when used exclusively for trade
and commerce, be it an action for recovery of immoveable property
or realization of money given in the form of security or any other
relief pertaining to immoveable property.
14. In the context of the present case, it is not disputed that the
immoveable property was being used exclusively in trade and
commerce. The said issue does not arise for consideration."
8. Faced with the aforesaid situation, learned counsel for the
appellant then referred to the decision of the Supreme Court in the
case of Ambalal Sarabhai Enterprises Limited v. K.S. Infraspeace
LLP3. This decision is also distinguishable because it pertains to a
suit for execution of a mortgage deed which was in the nature of
specific performance of the terms and conditions of the Memorandum
of Understanding without reference to the nature of use of the
immovable property in trade or commerce as on the date of the suit.
9. In the instant matter, the subject property has evidently been put
to use exclusively for running of trade and commerce and the suit is
referable to Section 2(1)(c)(vii)4 of the CC Act read with the
Explanation Clause.
10. In view of the foregoing discussion, the present appeal fails and
same is hereby dismissed.
(2020) 15 SCC 585
(vii) agreements relating to immovable property used exclusively in trade or commerce;
Explanation.--A commercial dispute shall not cease to be a commercial dispute merely because--
(a) it also involves action for recovery of immovable property or for realisation of monies out of
immovable property given as security or involves any other relief pertaining to immovable
property; (b) one of the contracting parties is the State or any of its agencies or instrumentalities,
or a private body carrying out public functions;
KUMAR VATS
Signing Date:28.03.2025
16:15:42
11. The pending application also stands disposed of.
12. A copy of this order be sent to the Court of learned District
Judge-02 & Wakf Tribunal, New Delhi District, Patiala House Courts,
New Delhi for information and record.
DHARMESH SHARMA, J.
MARCH 27, 2025/Sadiq
KUMAR VATS
Signing Date:28.03.2025
16:15:42
