Delhi High Court
Cepco Industries Private Limited vs Tewari Restaurant Private Limited on 9 January, 2023
Author: Navin Chawla
Bench: Navin Chawla
Neutral Citation Number 2023/DHC/000151
* 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
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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.
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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 similar to the one
made by the learned counsel for the defendant herein, observing as
under:-
"18. The last contention of the counsel for the
applicant/defendant is, that though the present
suit qualified as a commercial suit, but the
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NEGI
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plaintiff has filed as an ordinary suit and the suit
has been registered as such and is liable to be
rejected. Attention in this regard is drawn to
Section 7 of the Commercial Courts, Commercial
Division and Commercial Appellate Division of
High Courts Act, 2015 (Commercial Courts Act).
However, on enquiry, as to which is the
Commercial Division of this Court, the counsel for
the applicant/defendant admits that the suit is
pending in this Court which is a Court of
Ordinary Civil Jurisdiction as well as Commercial
Division of the High Court.
19. I have also enquired from the counsel for the
applicant/defendant, whether not it is only a case
of nomenclature and even if this suit were to be a
commercial suit, the same can always be
registered as a commercial suit.
20. The counsel for the applicant/defendant states
that the plaint does not contain the declaration as
a plaint in a commercial suit is required to
contain.
21. Even if that be so, it has been held in Uday
Shankar Triyar v. Ram Kalewar Prasad
Singh, (2006) 1 SCC 75, Union of India v. Shanti
Gurung, 2014 SCC OnLine Del 989, Haldiram
(India) Pvt. Ltd. v. Haldiram Bhujiawala, 2009
(109) DRJ 647 (SLP(Civil) No. 11587/2009
preferred whereagainst has been dismissed vide
order dated 14th May, 2009) that non-compliance
with procedural requirements should not entail
automatic dismissal or rejection if the defect or
irregularity is curable."
11. The above judgement was followed by this Court in Apnaghar
Builders Pvt. Ltd. (supra), observing as under: -
"19. There is another reason why the said
application is to be dismissed. As observed by this
court in Rachit Malhotra(supra), ultimately it is
only a case of nomenclature and, even if, this suit
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was to have been found to be a commercial suit, it
could always be registered as a commercial suit
by directions of this Court. Such a mis-description
of the suit cannot entail its rejection. When a suit
is re-numbered as a commercial suit, obviously,
Section 12A of the Act, would not and cannot
come into play. Of course, the discretion of the
court still remains under Section 89 of the CPC, to
refer the parties to mediation, to work out an
amicable settlement between the parties before
embarking on the trial, subject of course, to the
timeframe provided under the Act."
12. This Court, in various orders, including order dated 21.07.2022
passed in CS (OS) 469/2021 titled Riveria Commercial Developers Ltd.
v. Brompton Lifestyle Brands Pvt. Ltd., placing reliance on the above
referred judgments, also allowed the suit to be registered as a
Commercial Suit. The same procedure was followed by this Court vide
order dated 15.12.2022 passed in FAO-IPD 23/2021 titled Dhani
Aggarwal v. Mahesh Yadav & Ors.
13. As far as non compliance with the mandatory provision of Section
12A of the Act is concerned, the judgment of the Supreme Court in Patil
Automation Pvt. Ltd. and Ors. (supra) has been expressly made
prospective in nature. The same, therefore, shall have no application to
the facts of the present case as the suit was filed prior to the date of the
said judgment. The parties were also referred to mediation vide order
dated 22.04.2022 passed by the learned Joint Registrar (Judicial),
however, the parties could not arrive at a settlement of their disputes.
14. As far as non-filing of the 'Statement of Truth', as the Suit was not
filed as a Commercial Suit to which the provisions of the Act apply, the
occasion of filing the 'Statement of Truth' did not arise. Now that the
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Suit is admitted to be a Commercial Suit of the specified value to which
the provisions of the Act would apply, the plaintiff shall rectify this
defect, however, for this defect alone the plaint cannot be rejected.
15. In view of the above, I find no merit in the present application. The
same is dismissed.
CS(OS) 682/2021 & & I.A. 16516/2022
16. As it is now admitted by the learned counsel for the plaintiff that
the present suit should have been filed as a Commercial Suit under the
provisions of the Act, the Registry is directed to re-number the suit as a
Commercial Suit. The plaintiff shall file the Statement of Truth and
comply with other provisions of the Act with respect to the pleadings of
the plaint, within a period of two weeks of this order.
17. List before the learned Joint Registrar (Judicial) on 31st January
2023.
NAVIN CHAWLA, J.
JANUARY 09, 2023/rv Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:10.01.2023CS(OS) 682/2021 Page 6 of 6 18:11:59