Kimtu Devi vs . State Of H.P. & Others on 6 January, 2023

[Cites 5, Cited by 1]

Himachal Pradesh High Court

Kimtu Devi vs . State Of H.P. & Others on 6 January, 2023

Bench: Vivek Singh Thakur

COMS No. 34 of 2018 06.01.2023 Present: Mr.Ajay Kumar Dhiman, Advocate, for the plaintiff.

Mr.Harinder Singh Rawat, Additional Advocate General, for defendants No.1 to 3.

Ms.Rita Goswami, Senior Advocate, alongwith Ms.Bhawna Dhiman and Ms.Komal Chaudhary, Advocates, for applicants-defendants No.4 and 5.

Mr.Kapil Dev Sood, Senior Advocate, alongwith Mr.Rahul Gathania, Advocate, for the applicant in r OMP No.507 of 2019.

Mr.Vivek Sharma, Advocate, for the applicant in OMP No. 97 of 2021.

OMP No.507 of 2019

List for consideration alongwith main suit on next date of hearing, as prayed.

OMP No. 97 of 2021

As requested which is not opposed, by way of special indulgence one more opportunity of four weeks is granted to file reply to the application subject to supply of fresh copy of application during course of the day.

It is made clear that no further time shall be granted to file reply.

List for consideration alongwith main suit on next date of hearing.

OMP Nos.661 of 2018 & 121 of 2021 These applications have been filed by the applicant-

plaintiff under Order 8 Rule 10 read with Section 151 CPC with prayer to struck off defence of defendants No.1 and 2 as well as defendants No.4 and 5 on the ground that suit has been registered as a Commercial Suit and as per provisions of proviso to Rule 1 of Order 8 CPC, time to file written statement in ::: Downloaded on - 06/01/2023 20:37:56 :::CIS Commercial Suit is 30 days and the said time cannot be extended .

further beyond 120 days in total after extension of time by the Court that too for recording the reasons on application filed for that by the defendants.

Commercial Courts Act, 2015, defines 'commercial dispute' under Section 2(1)(c). Perusal of plaint and prayer made therein, is not covered under definition of 'commercial dispute' under:-

r to as defined in the aforesaid Section 2(1)(c), which reads as "2(1)(c) "commercial dispute" means a dispute arising out of--

(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;

(ii) export or import of merchandise or services;

(iii) issues relating to admiralty and maritime law;

(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same;

                     (v)      carriage of goods;
                     (vi)     construction   and    infrastructure      contracts,
                              including tenders;
                     (vii)    agreements relating to immovable property

used exclusively in trade or commerce;

(viii) franchising agreements;

(ix) distribution and licensing agreements;

(x) management and consultancy agreements;

                     (xi)     joint venture agreements;
                     (xii)    shareholders agreements;
                     (xiii)   subscription   and    investment       agreements

pertaining to the services industry including outsourcing services and financial services;

(xiv) mercantile agency and mercantile usage;

                     (xv)     partnership agreements;
                     (xvi)    technology development agreements;




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                       (xvii)    intellectual     property     rights     relating     to
                                registered     and       unregistered     trademarks,




                                                                   .

                                copyright,     patent,    design,   domain      names,

geographical indications and semiconductor integrated circuits;

(xviii) agreements for sale of goods or provision of services;

(xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum;

(xx) insurance and re-insurance; (xxi) contracts of agency relating to any of the above; and r (xxii) such other commercial disputes as may be notified by the Central Government.

It appears that Registry has committed a mistake in registering this Suit as Commercial Suit. Whereas, this suit was filed as a simple Civil Suit by the plaintiff herself, but at the time of registration of the Suit, Registry by mistake has registered it as Commercial Suit. Therefore, provisions related to Commercial Suit shall not be applicable in present suit. Hence these application are dismissed.

COMS No. 34 of 2018

In view of order passed in OMP Nos.661 of 2018 and 121 of 2021, it is evident that present suit is not a Commercial Suit but is ordinary Civil Suit. Therefore, Registry is directed to register this Suit as Civil Suit instead of Commercial Suit and Commercial Suit No.34 of 2018 shall be deemed to have been closed and disposed of.

Needful be done well before next date of hearing.

Written statement(s) on behalf of the defendants have not been filed. On persuasive request of learned counsel for the defendants, one more but last opportunity of four weeks ::: Downloaded on - 06/01/2023 20:37:56 :::CIS is granted to file written statements. Replication(s) thereto, .

within four weeks thereafter.

List for consideration in the month of March 2023.

OMP No.534 of 2018

One more opportunity, as prayed, is granted to file replies to this application by the defendants.

List alongwith main suit on next date of hearing.




    January 6, 2023
                                to             (Vivek Singh Thakur)
                                                       Judge

         (Purohit)








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