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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 8393 OF 2021

M/s.Glasswood Realty Pvt.Ltd and ors

.. Petitioners

Versus

Mrs.Chandravilas Kailashkumar Kothari

.. Respondents

…

Mr.Ganesh Murthy i/b K.V. Aiyar & Associates for the

petitioners.

Mr.Rizwan Ahmed i/b Amar Legal for respondent

CORAM: BHARATI DANGRE, J.

DATED : 6^th DECEMBER 2021

ORAL JUDGMENT:-

1

A Commercial Summary Suit under Order 37 Rule 2

of the Code of Civil Procedure was filed by Mrs.

Mrs.Chandravilas Kailashkumar Kothari (respondent

herein)

seeking the following relief:-

“(a)

The Defendants be ordered and decreed to pay

to the Plaintiff a sum of Rs.35,00,000/- as per particulars

of claim Exhibit ‘O’ hereto together with interest at the

rate of 18% p.a. and further interest from the date of

filing of the present suit till payment and/or realization”

2

The plaintiff staked the claim on the basis that the

amount is due and payable to her, from the defendant as the

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amount of Rs.35 lakhs was advanced as a friendly loan and on

default in its repayment, it was sought back with interest.

3

In the said Commercial Suit, the petitioner (original

defendant) filed Notice of Motion No.877 of 2021 requesting the

Court to exercise the powers under Order 7 Rule 10, sub-Section

(1) of the Code of Civil Procedure, to return the plaint to the

plaintiff. The affidavit in support of Notice of Motion pleaded

that the plaintiff in the plaint has admitted that the suit

transaction is a friendly loan, of which the refund is sought and

the defendant has filed written statement on record in which the

and existence of any commercial relationship or any commercial

transaction, attracting the provisions of Commercial Courts Act,

2015, was denied. The Notice of Motion was based on a pleading

that the Suit of the plaintiff do not fall within the purview of

‘commercial transaction’ contemplated under Section 2(c) of the

Commercial Courts Act, 2015 and hence the Suit is liable to be

returned.

4

The Notice of Motion was responded to, by the

plaintiff by filing an affidavit, wherein it is set out that the word

‘commercial’ before the word ‘summary suit’ is a mistake and it is

clearly admitted that it is not a commercial suit and the following

statement is made in para 9 to the following effect :

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“9.

I say that further in Paragraph No. 23 of the

said Written Statement filed by the Defendants again

it has been clearly admitted that the Plaintiff has filed

the suit as Summary suit under the provision of Order

XXXVII Rule 2 of CPC and therefore the Defendants

are very well aware that the suit filed by the Plaintiff is

under the provisions of CPC and not under the

provisions of Section 20 of the Commercial Courts

Act, 2015 and therefore no question or right arises for

the Defendants to allege that the suit is filed as

commercial suit as they have clearly admitted that the

Suit is filed under the Provisions of CPC.

11.

I repeat and reiterate that except the word

Commercial in hand written, there is no change in the

provision of the recovery suit which is still as such

there in the plaint which clearly shows that the suit

filed is not as a commercial suit but it is a recovery suit

strictly as per the provisions of the Code of Civil

Procedure, 1908. Therefore the Defendants cannot

say that the said suit is filed under the provisions of

the Commercial Courts Act, 2015 as it is nowhere

mentioned that the suit is filed under Section 20 of

Commercial Courts Act, 2015 as alleged by the said

Defendant.”

5

The Notice of Motion came to be decided by the

Addl. Sessions Judge, M