NAMITA GUPTA   [Petitioner]  Vs.  SURAJ HOLDINGS LIMITED   [Respondent]

CM(M) 457/2023 & CM APPL. 13615/2023

(CORAM: HON’BLE MR. JUSTICE NAVIN CHAWLA)

Facts: The present petition has been filed by the petitioner, who is the defendant in the Suit, being CS DJ No. 708/2019 titled M/s Suraj Holdings Ltd. v. Namita Gupta (hereinafter referred to as the ‘Suit’), challenging the order dated 06.03.2023 (hereinafter referred to as the ‘Impugned Order’) passed by the learned Additional District Judge, South-East District, Saket Courts, New Delhi (hereinafter referred to as ‘Additional District Judge’), and the order dated 14.03.2023 (hereinafter referred to as ‘Impugned Order’) passed by the learned Principal District and Sessions Judge, South-East District, Saket Courts, New Delhi (hereinafter referred to as ‘Principal District and Sessions Judge’).

Issue: Whether the power under Section 24 of the CPC to transfer the Suit is also available to the District and Session Judge?

Arguments on behalf of counsel for petitioner:

The learned counsel for the petitioner submits that the learned Additional District Judge, and even the learned Principal District and Sessions Judge, do not have the power to transfer the Suit, which is filed as an Ordinary Suit, to a Commercial Court. He submits that the only power available to the Court is to return the plaint for the plaintiff to file the same, if so advised, before the Court of appropriate jurisdiction. The learned counsel for the petitioner submits that under the Act, there are special requirements for a Suit to be filed before a Commercial Court, which are in the form of a prescribed Statement of Truth and affidavit to be filed, as well as Pre-Institution Mediation to be initiated, as mandated under Section 12-A of the Act. He submits that as in the present case, the plaint does not meet the above requirements, the learned Additional District Judge should have rejected/returned the plaint. The learned counsel for the petitioner further submits that the only provision for transfer of the Suit, which is filed as an Ordinary Suit, to a Commercial Court, is contained in Section 15(2) of the Act. He submits that the said provision is applicable only to the Civil Suits relating to commercial disputes of a specified value that were pending before the Civil Courts in any District or area in respect of which a Commercial Court has been constituted, as on the date of such constitution. It does not apply to Suits that are filed after the constitution of the Commercial Courts in a particular District. He submits that where a Suit, though relating to a commercial dispute of a specified value, is filed as an Ordinary Civil Suit after the constitution of the Commercial Courts, the only power available with the Court is to return the plaint under Order VII Rule 10 of the CPC for the presentation of the plaint before the Commercial Courts, that is, the Court of appropriate jurisdiction.

Arguments on behalf of counsel for respondent:

The learned counsel for the respondent submits that the learned District Judge, as also this Court, by the provisions of the Act is not denuded of the powers under Section 24 of the CPC. He submits that Section 15 of the Act provides for the transfer of the cases that are pending adjudication as on the date of the constitution of the Commercial Division in the High Court or the Commercial Courts at the District Level. The said provision, however, is in addition to the general power which is vested in the District Judge, as also the High Court, under Section 24 of the CPC to transfer any proceedings pending in a Court subordinate to any other Court subordinate. He submits that as the Suit was pending before the Court of the learned Additional District Judge, which, in terms of the provisions of the Punjab Courts Act, 1918, is a Court subordinate to the Court of the learned Principal District and Session Judge, the learned Principal District and Sessions Judge had the power to transfer the Suit to a Commercial Court. He submits that the Commercial Court, though constituted under the Act, is manned by the Officers from the District Judiciary, as is evident from the Delhi Higher Judicial Services Rules. He submits that the learned District Judge has been passing administrative orders transferring the Commercial Suits from one Court to another in the district.

Held: The court disposed off the present petition and held that, “Once the learned Additional District Judge was of the view that the dispute raised in the subject Suit is commercial in nature of a Specified Value, the only power vested in him was to return the plaint to the plaintiff, that is, the respondent herein for it to be presented before the Court of competent jurisdiction. The learned Additional District Judge had no power to place the file of the Suit before the learned Principal District and Sessions Judge for it to be transferred to the Court of competent jurisdiction. Similarly, the learned Principal District and Sessions Judge erred in transferring the Suit from the Court of the learned Additional District Judge to the Court of the learned District Judge, Commercial Court. As held hereinabove, the Commercial Court even at the level below the learned District Judge is not a Court subordinate to the District Judge. Therefore, the learned Principal District and Sessions Judge had no power to pass the Impugned Order dated 14.03.2023. this Court, under Section 24 of the CPC, has the power to transfer the Suit to the court of competent jurisdiction. In the present case, as it is not disputed that the Suit relates to a Commercial Dispute of a Specified Value and is to be tried by the learned District Judge (Commercial), South-East District, Saket District Court, and as it is also not disputed that the petitioner herein, who is the defendant in the Suit, has not only filed her Written Statement but also a Counter-Claim, in my opinion, the interest of justice would demand that in exercise of power vested in this Court under Section 24 of the CPC, the Suit be transferred from the Court of the learned Additional District Judge to the Court of the District Judge (Commercial), South-East District, Saket District Court, to be tried from the stage it is at present.”