A lease agreement for property utilized commercially requires adherence to commercial dispute procedures, and refusal to pay rent based on residential classification is invalid if the commercial use is permissible.

JUDGMENT

[VIA VIDEO CONFERENCING]

I.A. Nos. 5310/2020 (by the plaintiff under Order XV-A read with Order XXXIX Rule 10 and Section 151 CPC for interim relief) & 1612/2021 (by the defendant under Order VII Rule 11 read with Section 151 CPC for rejection of the present suit)

1. The two applications, one being I.A. No.5310/2020 filed by the plaintiff under Order XV-A read with Order XXXIX Rule 10 and Section 151 CPC for interim relief, and another being I.A. No.1612/2021 filed by the defendant under Order VII Rule 11 read with Section 151 CPC for rejection of the present suit, will be disposed of by this common order.

2. The suit has been filed by the plaintiff/Apnaghar Builders Pvt. Ltd seeking possession, damages/mesne profit and permanent injunction against the defendant/Intense Fitness and Spa Pvt. Ltd. in respect of property bearing No.C-2/10, Safdarjung Development Area, New Delhi- 110016.

3. The defendant by means of the application under Order VII Rule 11 CPC has sought the rejection of the plaint on the ground that the suit could not have been instituted as an ordinary suit. Mr. Ritesh Agrawal, learned counsel for the defendant, submitted that the plaintiff was relying on a Lease Deed dated 4th January, 2016, alleging that the property was commercial in nature. As per the said Lease Deed, the premises were leased out to the defendant for running a Gym, Spa, Restaurant and other ancillary business, which were commercial in nature. Thus, under Section 2 (1)(c)(vii) of the COMMERCIAL COURTS ACT , 2015 ("the Act" in short), the dispute falls within the definition of a commercial dispute. Attention of this Court has also been drawn to the definition in Section 2 (1)(c)(vii) and (xviii) of the Act. Thus, the suit filed as an ordinary civil suit was not maintainable.

4. Learned counsel has further argued that once the dispute was commercial in nature, without adherence to the mandatory requirement of Section 12A of the Act, i.e., pre-litigation mediation, this suit could not have been instituted. Thus, it was also barred under law.

5. In response, Mr. Ravi Gupta, learned senior counsel for the plaintiff has submitted that the defendant had filed a suit being CS(OS) 667/2019, seeking damages as an ordinary civil suit. Learned senior counsel also pointed out that in this suit itself, in response to the application moved by the plaintiff for payment of rent/user charges under Order XV-A CPC, the defendant claimed that the premises were residential in nature, and therefore, he was not under any obligation to pay rent at commercial rates. Therefore, the defendant could not be allowed to approbate and reprobate at the same time.

6. Relying on the judgment of this Court in Soni Dave v. Trans Asian Industries Expositions Pvt. Ltd., 2016 SCC OnLine Del 4282, it was further submitted that it was the nature of the property that was relevant in determining whether a dispute in respect of that property would be commercial or not. It was submitted by learned senior counsel that the suit property was located on a road where commercial use was also permitted and therefore, the premises could not be described as being exclusively and wholly used for commercial purposes only.

7. It was also su