Court must comply with return of plaint procedure under Order VII, Rule 10 when it lacks jurisdiction, and cannot use transfer provisions as substitutes.

1. A short question arises in this Petition as to whether in the event Court finds no jurisdiction to entertain the subject matter, has to follow provision of Order VII, Rule 10 of Code of Civil Procedure (for short ‘the Code’) or an order can be sought from District Judge by invoking provision of Sections 24 and 25 of the Code.

2. The facts of the case to the extent they are relevant for decision of issue involved in this Petition are as under:

The contesting Respondent filed suit being Special Civil Suit No. 174/2023. Petitioners appeared in the suit raising various objections. The 4^th Joint Civil Judge, Senior Division, Jalgaon while deciding application for temporary injunction vide Exh. 6 has arrived at conclusion that the subject matter of the suit is a commercial dispute as contemplated by Section 2(c)(xii) of the Commercial Courts Act, 2015 (for short ‘the Act’). After holding so, reference was made to the Principal District Judge, Jalgaon (for short ‘PDJ’) for transferring the suit to the Commercial Court. Accordingly, PDJ, Jalgaon by order dated 12.03.2024 transferred the said suit to District Judge – 2, Jalgaon. Being aggrieved by these orders, present Petition is filed.

3. Learned Counsel for Petitioners submit that once it is held by the Civil Court that it has no jurisdiction over subject matter, the only option available for the Court is to return the plaint under Order VII, Rule 10 of the Code. There is no procedure contemplated for making reference to the PDJ who in exercise of powers under Section 24 of the Act can transfer such proceedings. To support his submissions, he placed reliance on following judgments:

i. Virendra Kumar vs. Rekha Bhayana , 2022 SCC OnLine Del 2678,

ii. Narendra Kumar vs. Om Daily Needs Retailing Pvt. Ltd and Another , 2023 SCC OnLine Del 5618,

iii. Ambalal Sarabhai Enterprises Ltd vs. K. S. Infraspace LLP and Another, (2020) 15 SCC 585 ,

iv. Kiran Singh and Others vs. Chaman Paswan and Others , (1954) 1 SCC 710,

v. JSW Steel Limited vs. Kamlakar V. Salvi and Others, 2021 SCC OnLine Bom 3113,

4. Per contra, learned Counsel for contesting Respondent has drawn attention of the Court to the judgment of Coordinate Bench of this Court in case of Dinesh Gopal Keni vs. State of Goa and Another, 2023 SCC OnLine Bom 911. It is his submission that in the similar facts, this Court has granted permission for filing application under sub-section 5 of Section 15 of the Act. He also took assistance of the judgment of this Court in case of J. P. Realities Pvt Ltd and Anothers vs. Mahesh Chandrabhan Kingrani and Others, Civil Revision Application No. 30 of 2023. Thus, according to him, these judgment squarely applies to the present case. Similarly, he placed reliance on following judgments to buttress his submission about confirmation of interim order in the event order of return of plaint under Order VII, Rule 10 CPC is passed.

i. Sherawali Developers LLP vs. Majesty Homes and Others, 2024 SCC OnLine Del 3963,

ii. Dinyar Behramji Irani vs. Kshirsagar Construction C. Pvt Ltd . Bombay, 1993 Mh.L.J. 1812,

iii. Mahima Management Services Private Limited vs. Creative Property Developers Private Limited and Anr, 2015 SCC OnLine Cal 715.

5. In order to appreciate the submissions made across the bar, it would be relevant to take note of the provision of Order VII, Rule 10 of the Code, which reads thus:

"10. Return of plaint. (1) Subject to the provisions of Rule 10-A. The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. The plaintiff or his pleader shall be informed of the date fixed for the return of the plaint"

This provision clearly indicates that subject to provisions of Rule 10-A, suit can be return at any stage of the suit to be