IA No.15636/2016 (of D-1 u/O VII R-10 CPC)

1. The applicant/defendant No.1 seeks return of the plaint, in this suit for recovery of Rs.1,60,00,000/- filed in this Court on 23rd September, 2016 as a commercial dispute, contending that it is not a commercial dispute.

2. The claim of the plaintiffs for money in the present suit is on the basis of the three defendants having sold immoveable property to the plaintiffs with a promise to deliver the title documents and the plaintiffs subsequently realising that the title documents were lying deposited by way of equitable mortgage with the State Bank of Patiala and for release whereof the plaintiffs had to deposit monies before the Debt Recovery Tribunal and which monies are now sought to be recovered from the defendants.

3. The suit has been labelled as a ‘commercial dispute’ pleading that the property purchased has always been used by the plaintiffs for commercial purpose.

4. It is not in dispute that the minimum pecuniary jurisdiction of this Court to entertain original suits with effect from amendment of Section 5 of the Delhi High Court Act, 1966 vide Delhi High Court (Amendment) Act, 2015 which came into force on 26th October, 2015 was enhanced to above Rs.2 crores and unless this suit qualifies as a commercial dispute within the meaning of Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (‘Commercial Courts Act’), the suit, having been instituted thereafter, will be below the minimum pecuniary jurisdiction of this Court and the plaint will have to be returned to be filed in the Court of appropriate pecuniary jurisdiction.

5. The only question for adjudication thus is whether the claim in the suit is a commercial dispute within the meaning of Section 2(1)(c) of the Commercial Courts Act.

6. Section 2(1)(c) supra in Clauses (i) to (xxii) thereof lists the transactions dispute arising out of which qualify as a commercial dispute. With respect to such commercial disputes, vide Section 7 read with Section 2(1) of the Commercial Courts Act, if the valuation of the subject matter is not less than Rs.1 crore, this Court as the Commercial Division of the High Court would have jurisdiction.

7. The counsel for the plaintiffs relies only on Clause (vii) of Section 2(1)(c) of the Commercial Courts Act supra, as per which a dispute arising out of “agreements relating to immovable property used exclusively in trade or commerce” is a commercial dispute. The counsel for the plaintiffs argues that the dispute subject matter of the present suit arises out of agreement of sale by the defendant No.1 to the plaintiffs of a property used exclusively in trade or commerce. He thus contends that Commercial Division of this Court i.e. this Bench has the jurisdiction to decide the suit and the plaint is not liable to be returned for filing in the Court of appropriate pecuniary jurisdiction.

8. The counsel for the plaintiffs, on being asked to show that the immovable property sold by the defendant No.1 to the plaintiffs is used exclusively in trade or commerce, has drawn attention to the site plan annexed to the Sale Deeds of the property to contend that the same does not contain any toilet or kitchen and is constructed like a shop.

9. I have drawn the attention of the counsel for the plaintiffs to my judgment in Soni Dave Vs. Trans Asian Industries Expositions Pvt. Ltd. AIR 2016 Del 186 where I have held that an immovable property if illegally used exclusively for trade or commerce cannot qualify under Section 2(1)(c)(vii) of the Commercial Courts Act supra and it has to be shown that the immovable property is legally permitted to be used exclusively for trade or commerce. The plaintiffs though in the plaint have pleaded that the property was purchased by the plaintiffs for commercial purposes and the plaintiffs are conducting their clothes business therefrom and the property has always been used for commercial purposes and the plaintiffs are continuing to