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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CIVIL APPLICATION NO.4591 OF 2021

IN

FIRST APPEAL NO.660 OF 2021

1.

Kashida Developers Private

Ltd., Through its Directors -

1-A.Sandip s/o Omprakash Koyate

and Ors.

= APPLICANTS]

(Orig.Defendants)

VERSUS

N.P.S.Infrastructure through

its Owner -

Shri Neeraj s/o Prafulla Shaha

= RESPONDENT

(Orig.Plaintiff)

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Mr.RN Dhorde, Sr.Counsel i/by Shri VR Dhorde,

Advocate for Appellants;

Mr.PV Mandlik, Sr.Counsel, i/by Shri AS Gandhi,

Advocate for Respondent.

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CORAM : SMT.VIBHA KANKANWADI,J.

DATE : 1

^st

July, 2021.

PER COURT :-

1.

Heard learned Sr.Counsel for the

respective parties.

2.

Present application has been filed for

stay to the execution and implementation of the

judgment and decree dated 9.9.2020 passed by

learned Civil Judge, Senior Division, Rahata,

District Ahmednagar in Special Civil Suit No.

12/2019 (Old Special Civil Suit No.68/2012).

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3.

Learned Sr.Counsel appearing for the

applicants-original defendants submitted that the

impugned judgment suffers from many illegalities

right from the point of jurisdiction. The learned

Trial Judge has failed to apply proper legal

provisions. If we peruse the plaint and the

impugned judgment, it is clear that the amount that

was claimed from the defendants, was to the tune of

Rs.1,24,87,610/-, which the plaintiff contended

that it was on account of a construction contract.

If we consider the definition of “Commercial

dispute” as per Section 2(c) of The Commercial

Courts Act, 2015 (herein after referred to as the

said Act), which came into force on 23.10.2015,

then sub-clause (vi) thereof says that a dispute,

arising out of construction and infrastructure

contracts including tenders, is a commercial

disputes. Therefore, after the said Act came into

force, the present suit ought to have been

transferred to the Commercial Court. Further, the

said Act came to be amended by the Act of 28 of

2018 and if specified value up to and inclusive of

Rupees One Crore was only to be tried at Civil

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Judge,Senior Division level even at a Taluka Court.

However, if the specified value is more than Rupees

One crore, then it should go to District Judge-1 at

the District Head quarter as well as the Court of

District Judge-2, if available at Taluka place.

Section 15 of the said Act deals with Transfer of

pending cases. Therefore, when the present suit was

originally filed and it appears that it was at

different place than Rahata in 2012 then it ought

to have been transferred in 2015 to the appropriate

Court under the said Act. It appears that the

Court of Civil Judge, Senior Division came to be

established at Rahata in 2019 and, therefore, the

suit came to be transferred to that Court.

However, still no efforts were made to transfer the

suit. No doubt a specific contention that it is a

commercial dispute appears to be not taken in the

written statement by the present appellants; yet it

was even for the Court to decide the same.

Further, the Issue No.1 was in respect of

valuation. The point could have been covered in

that issue; yet the finding has been given in the

affirmative. The suit was for recovery of amount

which was more that Rupees One crore though the

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decree has been passed to the tune of Rs.

61,84,212/- and, therefore, the said Court had no

jurisdiction at all to decide the dispute.

4.

Another fact which was not considered at

all was that even the defendants have filed Special

Civil Suit No.8/2014 for recovery of Rs.

5,71,26,794/- and that was not considered along

with this suit. On merits also, it can be seen

that the plaintiff had not produced original

documents and only summary of the accounts was

produced which could not have been taken as proof

for any outstanding amount. When the defendants

had come with a case that, in fact, there is an

amount outstanding from the plaintiff to them,

unless those matters would have been tried

together, the learned Trial judge