IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2509 of 2023 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2023 In R/FIRST APPEAL NO. 2509 of 2023 ==========================================================

M/S GOGA ENTERPRISE Versus AHMEDABAD MUNICIPAL CORPORATION ==========================================================

Appearance:

MR AM PAREKH(562) for the Appellant(s) No. 1 for the Defendant(s) No. 1,2,3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE J. C. DOSHI Date : 04/07/2023

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J. C. DOSHI)

1. This Appeal takes exception to the order passed below Exh.18 in Commercial Civil Suit No.432 of 2022 dated 06.05.2023 by which the Commercial Court in exercise of jurisdiction under Order 7 Rule 11(d) of Code of Civil Procedure, 1908 (in short ‘CPC’) rejected the plaint.

1.1. As pure question of law arises in the context of impugned order, the appeal could be taken up at this stage.

2. The facts which are gathered from pleadings are briefly stated as :-

2.1. The plaintiff who is appellant herein has instituted suit for recovery of Rs.14,55,496/- along with 12 % interest till date of realization against defendant nos.2 – M/s. Toilet and Toilet Pvt. Ltd. and defendant no.3 – Shri Kumud Ranjan Kumar jointly and severally. The plaintiff initially filed Summary Suit No.777 of 2020 before the City Civil Court, Ahmedabad, but during hearing learned Aux. Chamber Judge found that alleged transaction averred in the plaint constitute commercial dispute and as such nature of relationship between the parties also constitute commercial nature, hence, passed order below Exh.25 and ordered to transfer the suit to Commercial Court. Learned Principal Judge, City Civil Court, Ahmedabad taking note of the said order on 11.05.2022 transferred the suit Summary Suit to the Commercial Court, Ahmedabad and as such suit was considered as Commercial Civil Suit and numbered as Commercial Civil Suit No.432 of 2022.

2.2. In above background of the case, according to the plaintiff an agreement was entered by and between the plaintiff and defendant nos. 2 and 3 for construction of toilet in different areas of Ahmedabad City. Pursuant to said contract in the year 2015, appellant – plaintiff constructed toilets in different areas of Ahmedabad City and generated invoices to the original defendant nos.2 and 3, in total Rs.41,92,576/-, out of which Rs.31,56,080/- was paid by defendants. Work of constructing toilet was completed in the year 2016, but the remaining amount was not paid by defendant nos.2 and 3 and they were served with legal notice dated 06.02.2016. Notice was replied on

29.02.2016 denying claim of recovery of amount.

2.3. According to the appellant – plaintiff since defendant nos.2 and 3 did not pay the amount as it was outstanding, it would amount to criminal breach of trust and forgery and therefore, Criminal Case was filed under sections 406 and 420 of IPC before the learned Additional Chief Judicial Magistrate, Agra (UP) vide Criminal Case No.40 of 2016. Process was issued against defendant nos.2 and 3 by the Court concerned. Issuance of process was challenged under section 482 by defendant nos.2 before the Allahabad High Court by way of Misc. Criminal Application No.40716 of 2017. Allahabad High Court found substance in the application under section 482 of the Cr.P.C. and vide order dated 13.05.2019 having observed that dispute between the parties are of civil nature allowed the quashing petition and quashed the criminal case.

2.4. The plaintiff again issued notice on 28.05.2019 to defendant nos.2 and 3 for recovery of amount. The notice was not replied.

2.5. In background of above facts, the plaintiff claiming issuance of notice dated 28.05.2019 as cause of action for filing suit, preferred Summary Suit No.777 of 2022 and as stated herein above, Summary suit was converted into Commercial Suit.

3. Inter-alia on the ground that suit b