* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:19.12.2022 Date of decision:09.01.2023 + CS(OS) 682/2021 & I.A. 16516/2022 CEPCO INDUSTRIES PRIVATE LIMITED ..... Plaintiff Through: Mr.Jai Sahai Endlaw & Mr.Ashish Kumar, Advs.

versus TEWARI RESTAURANT PRIVATE LIMITED ..... Defendant Through: Mr.Ankur Jain, Adv.

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA I.A. 17306/2022

1. This application has been filed by the defendant praying for the rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’).

2. The learned counsel for the defendant asserts that the plaintiff, in its plaint, has admitted that by virtue of the Lease Deed dated 22.03.2016, the possession of the suit premises was handed over to the defendant for the operation of a bar/restaurant; and the provisions of the Central Goods and Services Tax Act, 2017 (in short, ‘the GST Act’) were made applicable as the defendant was also to pay Goods and Services Tax (in short, ‘GST’) over and above the agreed rent.

Signature Not Verified Digitally Signed By:RENUKA NEGI

3. He submits that the plaintiff in paragraph 9 of the Plaint further reiterates that the defendant has been continuing to use and occupy the suit premises for its commercial purposes.

4. He submits that therefore, the present suit is a Commercial Suit of a specified value and was to be filed under the provisions of the Commercial Courts Act, 2015 (hereinafter referred to as the ‘Act’). The plaintiff, however, in paragraph 17 of the plaint falsely represented the suit to be ‘non-commercial in nature’, thereby escaping the rigors of the Act. He submits that as the plaintiff failed to comply with the provisions of the Act, especially with regard to the plaint being accompanied with the ‘Statement of Truth’ and Section 12A of the Act, the plaint is liable to be rejected.

5. The learned counsel for the defendant submits that the filing of the Statement of Truth is a mandatory condition under Order VI Rule 15A of the CPC, as applicable to commercial disputes. The provision of Section 12A of the Act is also mandatory in nature. The plaintiff having failed to comply with both, and the suit being a Commercial Suit, the same is liable to be dismissed.

6. The learned counsel for the plaintiff admits that the present suit should have been filed as a Commercial Suit under the Act. He prays that the present suit be re-numbered as a Commercial Suit and be proceeded accordingly. In support, he places reliance on the judgments of this Court in Rachit Malhotra v. One97 Communications Limited., 2018 SCC OnLine Del 12410; and Apnaghar Builders Pvt. Ltd. v. Intense Fitness and SPA Pvt. Ltd., 2021 SCC OnLine Del 4128.

Signature Not Verified Digitally Signed By:RENUKA NEGI

7. Further, placing reliance on the judgment of the Calcutta High Court in Harji Engineering Works Pvt. Ltd. v. Hindustan Steelworks Construction Ltd., 2021 SCC OnLine Cal 2457, he submits that the plaintiff be also permitted to file the ‘Statement of Truth’ as required for a Commercial Suit. He submits that the defect in filing of the Statement of Truth is a curable defect.

8. As far as non-compliance with Section 12A of the Act is concerned, he submits that the present suit was filed in December 2021; the judgment of the Supreme Court in Patil Automation Pvt. Ltd. and Ors. v. Rakheja Engineers Pvt. Ltd., (2022) 10 SCC 1, which holds the provisions of Section 12A of the Act to be mandatory, is prospective in nature, and has been made effective only from 20.08.2022. He submits that, therefore, the present suit cannot be rejected only because the plaintiff had not initiated pre-institution mediation as required under Section 12A of the Act.

9. I have considered the submissions made by the learned counsels for the parties.

10. The plaintiff has already admitted that the present suit was wrongly filed as an Ordinary Suit of a non-commercial nature. In Rachit Malhotra (supra), this Court has rejected submissions simila