A dispute concerning property used for trade or business satisfies the criteria of a commercial dispute regardless of the gratuitous nature of the license. Courts should exercise the power of transfer under Section 24 of the Code of Civil Procedure to ensure procedural continuity rather than returning the plaint.

JUDGMENT :

1. The present appeal filed under Order XLIII Rule 1 of Code of Civil Procedure, 1908(hereinafter referred to as "CPC") is directed against the order dated 18.09.2024, passed by the Trial Court, whereby the suit was held to be a Commercial Suit and the plaint was returned under Order VII Rule 10 CPC.

2. The facts, in a nutshell, are that in the plaint, the plaintiff had asserted that Commercial/industrial Shed bearing No.6A, D.D.A Sheds, Okhla Industrial Area, Phase-II, New Delhi (hereinafter the "suit property") was allotted to him by DDA in an Auction held on 30.10.1981, whereafter he became its exclusive owner on payment of the sale consideration. A Possession Letter dated 04.08.1982 was also issued in his name. Thereafter, the suit property was used by the plaintiff as the office of his partnership firm namely, “M/s DESCON India”. It was further claimed that the defendant, who is the elder brother of the plaintiff, was running his partnership firm in the name of “M/s Associated Engineers” from the adjacent premises bearing Shed No. 5-A, D.D.A Sheds, Okhla Industrial Area, Phase-II, New Delhi and requested the plaintiff to permit him to use the portion of suit property. The plaintiff claimed that he used the suit property till the year 1996-1997, whereafter his office shifted to C-2, D.D.A. Golf View Apartments, Saket, New Delhi-110017. On defendant's request, plaintiff permitted him to run the latter's partnership business on the suit property. It was further claimed that on the demise of the youngest brother of the parties, namely Shri Rajiv Puri, with whom the defendant was running his aforesaid business, the partnership firm got dissolved. However, despite requests, the defendant refused to vacate the suit property. In this backdrop, the claim was filed seeking recovery of possession, damages/mesne profits and permanent injunction.

3. During the pendency of the suit, the defendant filed an application under Order VII Rule 10 CPC claiming that since the suit property was being used for commercial purposes, the dispute fell within the ambit of Section 2(1)(c)(vii) of the Commercial Court Act, 2015. It was also claimed that the relief for mesne profits was covered under the said Section. While relying on the decision of this Court in Jagmohan Behl v. State Bank of Indore , 2017 SCC OnLine Del 10706, it was submitted that the expression “arising out of” in Section 2(1)(c)(vii), in relation to agreements concerning immovable property, is wide and expansive and is not to be given a narrow or restricted interpretation. It was contended that the said expression would include all matters relating to agreements connected with immovable property used in trade or commerce, including oral agreements. Further, reliance was placed upon Harshad Chiman Lal Modi v. DLF Universal & Anr., (2005) 7 SCC 791, learned counsel submits that the decree passed in a suit by a Court lacking subject matter jurisdiction would be a nullity.

4. The plaintiff, however, contested the said application, contending that the suit property had been permitted to be used by the defendant and was handed over out of respect and not for any commercial consideration. Hence, the requirement of Section 25 of the Indian Contract Act is not satisfied. The oral agreement cannot amount to an agreement envisaged under Section 2(1)(c)(vii) of the Commercial Courts Act, 2015.

5. The Trial Court, while considerin