The main legal point established in the judgment is the broad interpretation of the term 'commercial dispute' under the Commercial Courts Act, 2015, and the procedural irregularity of making conclusive findings without trial.

JUDGMENT :

Tushar Rao Gedela, J.

Petitioner challenges the order dated 03.03.2021 whereby the learned Trial Court after considering the material on record of the suit, concluded that the dispute arising in the said suit is not a commercial dispute within the meaning of Section 2(1)(c) of the Commercial Courts Act, 2015 (hereinafter as “Act”) and simultaneously placed the matter before the learned Principal District and Sessions Judge (South-West), Dwarka Courts, for appropriate orders on the same.

2. Mr. Sanjeev Kumar Sharma, learned counsel appearing for the petitioner submits that the suit pending before the learned Trial Court was originally filed as a commercial suit as defined under Section 2 of the Act. Learned counsel submits that while the suit was pending before the learned designated Commercial Court, upon a perusal of the record of the suit, the learned trial court came to the conclusion that the dispute arising in the said suit would not fall within the meaning of “commercial dispute” as defined under Section 2(1)(c) of the Act vide the order dated 11.03.2020.

3. The petitioner challenged the aforesaid order dated 11.03.2020 by way of CM(M) No. 445/2020 before this Court. This Court, by way of the order dated 09.10.2020 and after examining the records, remitted the matter back to the learned Trial Court to pass a reasoned order. Apparently, in pursuance of the aforesaid order, the learned Trial Court passed the order impugned herein.

4. The substratum of the case of petitioner was predicated on a document described as “term sheet” which was stated to have been executed on 05.05.2016 between the parties. So far as the said document is concerned, the validity or otherwise of the same is yet to be tested in trial.

5. Learned counsel appearing for the petitioner submits that the “term sheet”, particularly Para 1 clause (d) as also Para 2 clauses (b), (e) and (f) of the said “term sheet” was acted upon by the parties. In that, it is the statement of the petitioner that the petitioner had infused certain amounts which were to be used as capital for the purposes of the intended company styled as “Netcom Technologies Private Ltd.”. Learned counsel also submits that it was not only that the petitioner had acted upon the terms of the term sheet but the respondents also had commenced implementing certain clauses of the term sheet qua their obligations towards the petitioner. On that basis, learned counsel submits that the parties were ad idem to the conditions of the term sheet and as such cannot today claim that the term sheet is of no consequence. Learned counsel also submits that the relevant parties to the agreement had appended their signatures to the said document. Learned counsel then referred to Para 4 of the said term sheet particularly to the table of profit sharing which was projected on certain profits being made by the intended company to submit that the nature of such transactions would fall within the definition of “commercial dispute”, as per the Act.

6. Learned counsel for the petitioner also submitted that the learned Trial Court had not considered the import of the said term sheet and had infact, to the contrary, concluded that in the absence of the intended company ever having been incorporated, such term sheet would have no validity or legality in the eyes of law. Learned counsel submits that it was only on that basis that the learned Trial Court concluded that the dispute in the suit would not fall within the ambit of Section 2(1)(c) of the Act and thus, placed the matter before the learned Principal District and Sessions Judge for appropriate orders to transfer the same in a Court of ordinary civil court of competent jurisdiction. Learned counsel submits that the learned Trial Court has already decided the validity or otherwise of the term sheet which it could not have under the proceedings, ostensibly exercising the powers for transfer of suits as provided in Commercial Courts Act, 2015 and the Civil Procedur