Delhi High Court - Orders
Sehar Industries Retail Private ... vs Perduman Kumar Handa on 2 September, 2022
Author: Amit Bansal
Bench: Amit Bansal
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 359/2022
SEHAR INDUSTRIES RETAIL
PRIVATE LIMITED ..... Plaintiff
Through: Mr.Sativik Varma, Sr.Advocate with
Ms.Drishti Harpalani, Advocate.
versus
PERDUMAN KUMAR HANDA ..... Defendant
Through: Mr.Akshya Dev, Advocate.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 02.09.2022 I.A. 14126/2022 (O-VII R-10 of CPC)
1. The present application has been filed on behalf of the defendant under provisions of Order VII Rule 10 of the Code of Civil Procedure, 1908 (CPC) seeking return of the plaint on the ground that the subject matter of the plaint does not qualify as a commercial dispute in terms of Section 2(1)(c) of the Commercial Courts Act, 2015.
2. The subject matter of the suit is a loan given by the plaintiff company to the defendant vide Loan Agreement dated 24th October, 2020. The counsel for the defendant relies upon the recitals of the said agreement to state that the son of the defendant, Mr. Rajan Handa, is the promoter of the plaintiff company and therefore, the loan was given by the plaintiff company to the defendants. He further submits that under the loan agreement, no interest was to be charged. Based on the aforesaid, he submits that the loan was not a commercial transaction and therefore, the suit is not covered as a commercial suit under the provisions of the Commercial Courts Act. Reliance is placed on the judgment dated 13th August, 2021 passed by the Signature Not Verified Digitally Signed By:AMIT BANSAL CS(COMM) 359/2022 Page 1 of 313:24:31 Signing Date:03.09.2022 Calcutta High Court in CS/99/2020 titled Ladymoon Towers Private Limited v. Mahendra Investment Advisors Private Limited and judgment of this Court in Kailash Devi Khanna and Ors. v. DD Global Capital Ltd. and Ors., 2019 SCC OnLine Del 9954.
3. Senior counsel appearing on behalf of the plaintiff draws attention of the Court to Clause 12.11 of the Loan Agreement to submit that it was a commercial transaction. He submits that merely because interest has not been charged, it would not make the transaction non-commercial.
4. I have heard the counsels for the parties.
5. At the outset, it may be relevant to refer to Clause 12.11 of the Loan Agreement, which is set out below:
"12.11 Commercial Transaction The Borrower acknowledges that the Loan Facility provided under this Agreement is for a commercial transaction and waives any defence available under usury or other laws relating to the charging of interest by the Lender."
6. It is clear from the aforesaid that the parties did envisage a commercial transaction in respect of the aforesaid loan facility. It is also noteworthy that the said agreement is between the plaintiff company and the defendant and not between the defendant and his son, who is the promotor of the plaintiff company. The Loan Agreement is drawn out on a stamp paper, bears the signatures of the parties on each of the pages and is also duly notarised. Various clauses of the Loan Agreement reflect that the agreement has all the trappings of the commercial transaction and qualifies as a mercantile document. Merely because no interest was payable in respect of the loan, in my view, the commercial nature of the loan would not change.
Signature Not Verified Digitally Signed By:AMIT BANSALCS(COMM) 359/2022 Page 2 of 313:24:31
Signing Date:03.09.2022
7. In Kailash Devi Khanna (supra), a coordinate Bench of this Court had observed that all suits for recovery of monies cannot fall under clause 2(1)(c)(i) of the Commercial Courts Act and in the facts of that particular case, the Court had observed that the suit is not based on any mercantile document. In the facts and circumstances of the present case, this judgment would not be of much assistance to the defendant.
8. In Ladymoon Towers Private Limited (supra), the Calcutta High Court proceeded on the basis that the loan given by the plaintiff was not in the regular business of lending money and the plaint does not contain any statement to that effect. The loan given by the plaintiff company to the defendant was based on the familiarity between the Directors of the parties therein and therefore, it was in the nature of a 'hand-loan'.
9. As I have already observed, the Loan Agreement in this particular case has all the trappings of a commercial transaction, which fact has also been acknowledged in Clause 12.11 of the agreement itself. Therefore, in my view, the aforesaid judgment would not be of any assistance to the defendant.
10. Summons in the suit were issued on 26th May, 2022 and it is noted that no written statement has been filed till date. Clearly, this application is an attempt to justify the delay in non-filing of written statement.
11. There is no merit in the present application.
Dismissed.
AMIT BANSAL, J
SEPTEMBER 2, 2022/sr
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
CS(COMM) 359/2022 Page 3 of 313:24:31
Signing Date:03.09.2022