Delhi District Court
M/S Awfis Space Solutions Pvt. Ltd vs M/S P. Seven General Finance Pvt. Ltd on 14 September, 2020
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN,
DISTRICT JUDGE (COMMERCIAL COURT01),
SOUTHEAST, SAKET COURTS, NEW DELHI
Presiding Officer: Sh. R.K. Chauhan, District Judge
(Commercial Court01)
CS (Comm) No. 179/2020
In the matter of:
M/s AWFIS Space Solutions Pvt. Ltd.
(A Company Registered Under the
Companies Act, 2013) Having its
registered office at :A16, First Floor,
Qutub Institutional Area, Aruna Asaf Ali Marg,
New Delhi - 110067
Through Its Authorized Representative
Mr. Amit Kumar
email: [email protected] ..........Plaintiff.
Vs.
1. M/s P. Seven General Finance Pvt. Ltd.
Having Registered Office at:
105/33, Vardhman Golden Plaza,
Road No. 44, Pitampura,
New Delhi110034.
Email: [email protected], [email protected]
2. M/s Shiva Supply Pvt. Ltd.
Having Registered Office at :
Bongaon Beltala College Road,
Gauhati, Assam
Email: [email protected], [email protected]
CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 1 of 56
(RAJ KUMAR CHAUHAN)
District Judge (Commercial Court)
South East/Saket Courts
New Delhi.
3. M/s Parneet International
Through Its Partner
Mr. Kulbir Singh Chandhok,
Having Registered Office at :
70, Nehru Place, New Delhi110019.
Email: [email protected]
4. M/s Ryder Exports,
Through Its Partner
Mr. Kulbir Singh Chadhok,
Having Office at :
Basement, The Greater Eastern Centre,
70, Nehru Place, New Delhi110019.
Email: [email protected]
5. Mr. Kulbir Singh Chadhok,
Partner M/s Ryder Exports
R/o C9/9, DLF PhaseI,
Gurgaon, 122002
Email: [email protected] .........Defendants
Date of institution : 11.05.2020
Date on which order was reserved : 02.09.2020
Date of pronouncement of the order : 14.09.2020
ORDER
By this order I propose to decide the question whether this Court is competent to entertain the amendment application moved by the plaintiff.
CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 2 of 56(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
1. The brief facts which gave rise to this question are as under : 1.1 The present civil suit was instituted online on 08.05.2020 and was taken up by the Court of Sh. Sandeep Garg, Additional District / Sessions Judge, (SouthEast District) in terms of officer order No. 13 dated 02.05.2020 passed by Learned District & Sessions Judge, Saket Courts, New Delhi. The proceedings took place by way of Video Conferencing through Cisco Webex. The learned ADJ / ASJ on duty passed the following order : "Present : Sh. Ambar Qamaruddin, Sh. Talesara and Sh. Syed Sarfaraz Karim, Ld. Counsels for the plaintiff.
The plaintiff undertakes to file attested affidavit, deposit court fee and affix welfare stamps after the court reopens.
At the very outset, it is submitted on behalf of the plaintiff that the defendants had restored electric supply to the leased premises of the plaintiff after institution of CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 3 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
the present suit.
Issue summons for settlement of issues and notice of application U/o 39 Rule 1 and 2 CPC to all the defendants. In the meanwhile, the defendants are restrained from disconnecting electric supply to the premises leased out to the plaintiff, till the next date of hearing.
Renotify on 11.05.2020.
Copy of this order be mailed to the defendants on the email ids furnished by the plaintiff and another copy be uploaded on the court website forthwith."
1.2. On 11.05.2020, the matter was entertained by Ms. Shelly Arora, Additional District / Sessions Judge, (SouthEast District) Saket Courts, New Delhi. The proceedings took place by way of Video Conferencing through Cisco Webex. The learned ADJ / ASJ on duty passed the following order : " Application is being taken up, in terms of office order No. 13 dated CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 4 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
02.05.2020 passed by the Ld. District & Sessiosns Judge, South East District, Saket Courts, New Delhi, by way of Video Conferencing through CISCO Webex Application.
Present : Sh. Ambar Qamaruddin, Sh. Ajay Talesara and Sh. Syed Sarfaraz Karim, Counsel for the plaintiff. Sh. Amit Sethi, Counsel for the Defendant no. 3 to 5.
Counsel for the defendant no. 3 to 5 has filed an application seeking modification of order dated 08.05.2020.
Ld. Counsel for the plaintiff
submitted that defendants, specially
defendants no. 3 to 5, be restrained from disconnecting the electricity connection o the leased premises and also from interfering in peaceful possession of the co working centre being operated from the leased premises.
Counsel for the defendant no. 3 to 5 CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 5 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
has submitted that the electricity supply was resumed even prior to filing of this petition and same shall not be disrupted in case the electricity charges and maintenance charges are regularly paid as per the invoices raised by the plaintiff from time to time.
Counsel for the plaintiff has responded that electricity and maintenance charges have already been paid till date and the plaintiff company undertakes to regularly pay the electricity and maintenance charges as per the Invoices raised by the defendants from time to time.
Ld. Counsel for the defendant no. 3 to has further contended that plaintiff is required to notify about number of people working at one time in the leased premises as per government norms to be provided to the local police. Ld. Counsel for the plaintiff undertakes that plaintiff company shall provide the updated requisite data CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 6 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
about the number of persons working in the premises at one time or say other information to the police authorities as per the requisite norms with a copy to the defendant for their information and record.
Counsel for the defendant no. 3 to 5 seeks two weeks time to file WS to the suit as well as reply to application under Order 39 Rule 1 and 2 CPC.
Counsel for the plaintiff, on the other hand, request two weeks time to file reply of the application seeking modification of order dated 08.05.2020. Renotify the matter on 27.05.2020 as per request and convenience of both the counsels. Plaintiff as well as all the defendant shall be bound by the respective undertaking as recorded in the preceding paragraphs.
Copy of this order be uploaded on the website of Court forthwith."
CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 7 of 56(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
1.3. In the meantime on 13.05.2020, another urgent application was filed by the plaintiff u/s 151 CPC seeking modification of order dated 11.05.2020. The said application was also entertained by Ms. Shelly Arora, Additional District / Sessions Judge, (SouthEast District) Saket Courts, New Delhi. The proceedings took place by way of Video Conferencing through Cisco Webex. The learned ADJ / ASJ on duty passed the following order : " Application is being taken up, in terms of office order No. 13 dated 02.05.2020 passed by the Ld. District & Sessiosns Judge, South East District, Saket Courts, New Delhi, by way of Video Conferencing through CISCO Webex Application.
Present : Sh. Ambar Qamaruddin, Counsel for the plaintiff.
Sh. Amit Sethi, Counsel for the Defendant no. 3 to 5.
This an application under section 151 CPC seeking modification of order CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 8 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
dated 11.05.2020.
It is mentioned in the application that the aspect of not disrupting the peaceful usage of leased premises by the plaintiff has not been mentioned in the order dated 11.05.2020 and therefore, the same may be modified to the extent that plaintiff shall enjoy peaceful usage of leased premises.
Counsel for the defendants no. 3 to 5 has also pointed out that there is typographical error in order dated 11.05.2020 where the invoices have been mentioned to be supposedly raised by plaintiff whereas the correct position is that the invoices are to be raised by the defendants. He has also pointed that plaintiff is under an obligation to keep paying the rent of the leased property as per the lease agreement regularly. He has further submitted that the peaceful usage of the leased premises by the plaintiff shall CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 9 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
not be disrupted, if plaintiff continues to regularly make payment of rent (other than disputed period), electricity and maintenance charges. He has fairly conceded that the rent for the disrupted period may be deliberated upon later.
Counsel for the plaintiff has responded that the rent for the leased premises (other than disputed period), maintenance and electricity charges shall be regularly paid by the plaintiff. Also, other conditions as laid down in the leased agreement shall be complied with. Accordingly, plaintiff subject to the fulfillment of conditions as mentioned above and also the respective undertakings as noted in the order dated 11.05.2020, shall be entitled to peaceful usage of leased premises. It is also clarified that the invoices towards the maintenance charges, as rightly pointed out by counsel for the defendants no. 3 to 5, are to be raised by CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 10 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
the defendants from time to time. Thus, para no. 3 of the order dated 11.05.2020 is also accordingly modified to this effect.
This order shall be read as part and parcel of order dated 11.05.2020. The application seeking modification of the order dated 11.05.2020 is accordingly disposed off.
Copy of the order be uploaded on the website of Court forthwith. "
1.4. On 27.05.2020, the matter was entertained by Sh. Sudhanshu Kaushik, Additional Sessions Judge, (SouthEast District) Saket Courts, New Delhi. The proceedings took place by way of Video Conferencing through Cisco Webex. The learned ADJ / ASJ on duty passed the following order : "Present : Sh. Ambar Qamaruddin, Counsel for the plaintiff.
None for defendant no. 1 & 2.
Sh. Amit Sethi is present on behalf of defendant nos. 3 to 5.CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 11 of 56
(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
Ms. Pinki Tanwar, JA, Filing Section, Saket Courts is present.
Counsel for the plaintiff has submitted that he has received the copy of written statement filed on behalf of defendant nos. 3 to 5 (in PFD form). He has mentioned that he needs time to go through the written statement and file replication. Time sought is granted.
On the other hand, counsel for defendant nos. 3 to 5 has pointed that an application filed under Section 151 CPC is also pending adjudication.
Put up for reply/arguments on the application under Order 39 Rule 1 & 2 CPC, filing of replication as well as arguments on the application under Section 151 CPC on 15.06.2020 at 12:00 p.m. Copy of the order be uploaded on the website of the Court."CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 12 of 56
(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
1.5. On 15.06.2020, the matter was entertained by Sh. Amitabh Rawat, Additional Sessions Judge, (SouthEast District) Saket Courts, New Delhi. The proceedings took place by way of Video Conferencing through Cisco Webex. The learned ADJ / ASJ on duty passed the following order : "The proceedings are being conducted in terms of office order No. 18 dated 14.06.2020 passed by the Ld. District & Sessions Judge, South East District, Saket Courts, New Delhi, through CISCO Webex Video Conferencing and in which the Reader of the Court, Shri Narender Patwal is coordinating and in is present alongwith Sh. Vinay Prasad Barthwal, PA and Sh. Anand, Ahlmad.
An application u/o 6 Rule 17 CPC alongwith amended plaint has been received through email as per official protocol.
CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 13 of 56(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
Present : Sh. Ambar Qamaruddin, Counsel for the plaintiff.
Ms. Riddhi, Ld. Proxy Counsel for defendant no. 3 to 5.
Ld. Proxy counsel for defendant no. 3 to 5 submits that main counsel is unwell and she seeks two weeks time to file reply to the present application.
Ld. Counsel for plaintiff has no objection to the same.
Heard. Allowed.
Let reply be filed before next date of hearing with advance copy to the opposite party.
Put up for arguments on the application under order 6 Rule 17 CPC on 06.07.2020."
1.6. On 06.07.2020, the present matter was placed before this Court having been assigned by Learned District & Sessions Judge, SouthEast, Saket Courts, New Delhi. Since, no one appeared on the said date before this Court, the following order CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 14 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
was passed : "At 2 p.m. Fresh case received by assignment by Learned District & Sessions Judge, SE. It be checked and registered.
At 02:00 p.m.
Present : None.
Put up for 07.07.2020
through Video Conferencing.
Ahlmad to make necessary
arrangement."
1.7 The physical file of the case after
downloading from net was allocated to this court, but the previous orders passed in this case were not brought to the notice of this Court as the same was not part of the said physical file allocated to this Court. On the NDOH i.e. on 07.07.2020, learned counsel for parties informed during the Video Conferencing proceedings about this case having been filed on 06.05.2020 accordingly the following order was passed : CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 15 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
"Fresh case put up before this Court after having been assigned by Learned District and Sessions Judge, SouthEast, Saket Courts, New Delhi. It be checked and registered.
Present : Sh. Sarfaraz Qamaruddin, learned counsel for the plaintiff. Sh. Gaurav Dua, learned counsel for defendant no. 1 and 2.
Sh. Amit Sethi, learned counsel for defendant no. 3 to 5.
The learned counsel for the parties informed that this matter was listed on 06.05.2020 before the Court of Sh. Sandeep Garg, Ld. ASJ, Judge on duty during lockdown.
It is informed that matter was lastly heard by Sh. Amitabh Rawat, Learned ADJ on 15.06.2020, where it was adjourned for 06.07.2020.
On 06.07.2020, this matter was sent CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 16 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
from the filing section to this Court without informing about the institution of the suit earlier and without proceeding having taken place in different Courts.
Ahlmad is directed to check it with the filing section and with the Ahlmad of the Court concerned where matter was original instituted and was heard.
The entire file containing the entire ordersheets are directed to be put up on the NDOH.
The counsel for defendant no. 3 to 5 Sh. Amit Sethi pointed out that the suit is not valued properly for the purpose of Court fees and jurisdiction and necessary court fees has not been paid.
The counsel for plaintiff submitted that he has already moved an amendment application for correct valuation of the suit as Commercial Suit as per Section 12 of Commercial Courts Act and once the amendment application is considered and CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 17 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
allowed, he will make the payment of the requisite Court fees immediately.
Put up for reply and arguments on the said amendment application.
Learned counsel for defendant no. 1 and 2 informed the Court that he has not been served with the copy of the plaint and documents. Learned counsel for plaintiff undertakes to supply the same on the e mail of the learned counsel today itself.
Put up for consideration of
amendment application and further
proceedings on 15.07.2020 at 11:30 a.m. through Video Conferencing."
1.8 On 15.07.2020, part arguments on the application under Order 6 Rule 17 CPC of the plaintiff was heard. Matter was adjourned for 22.07.2020.
1.9 On 22.07.2020, during arguments on amendment application the learned counsel for plaintiff sought adjournment to move fresh amendment application incorporating the CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 18 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
valuation of the suit at annual rental value. Matter was adjourned for 28.07.2020 for filing fresh amendment application and arguments.
1.10 On 28.07.2020, the said fresh amendment application was not moved and plaintiff was given 3 days time for that purpose and matter was adjourned for 05.08.2020.
1.11 On 05.08.2020, online amendment application was filed and matter was adjourned for reply and arguments on the said application for 13.08.2020.
1.12 On 13.08.2020, the arguments were heard and matter was adjourned for filing of written brief submissions on or before 17.08.2020 and matter was adjourned for 20.08.2020.
1.13 On 20.08.2020, written arguments have been filed by the parties online and some judgment has already been cited and filed online and matter was accordingly adjourned for consideration of those written arguments and judgment and clarifications, if any and order on the amendment application on 22.08.2020.
CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 19 of 56(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
2. I have heard the learned counsels for the parties at length.
3. Arguments of Defendants 3.1 Sh. Amit Sethi, learned counsel for defendant no. 3 to 5 at the very outset submitted that the amendment application under consideration cannot be considered by this Court because as per the original plaint, the plaintiff has valued the present Commercial Suit as per para 39 for the purpose of Court fees and jurisdiction for relief of permanent and mandatory injunction at Rs. 130/ each. It is further argued that as per Section 2 (1) (i) of Commercial Courts Act, 2015, the Commercial Court cannot entertain the dispute having specified value less than Rs. 3 Lakhs. It was further argued that the matter needs to be sent to the Court of Senior Civil Judge who has the pecuniary jurisdiction at the time of filing of the suit because the matter was entertained in special circumstances by Learned Duty ADJ's as no Civil Judge / Senior Civil Judge were on duty and all the urgent civil matters were being entertained by the Learned Additional District Judges / Additional Session Judges which were filed online in urgent category. Therefore, the present matter is necessarily to be dealt with for all purposes by the CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 20 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
Court of competent pecuniary jurisdiction i.e. the Court of Civil Judge / Senior Civil Judge.
4. In written arguments it has been argued that : 4.1 Firstly, since the minimum pecuniary value of the suit was being below Rs. 3 Lakhs, therefore, the same was not competent to be entertained by Commercial Court / District Judge Commercial Court, South East. 4.2 Secondly, as per Section 15 of the CPC, every suit has to be filed in the Court of having the lowest grade and the valuation so done by the plaintiff being in consonance with Section 15 of CPC was to be entertained by the Court of Senior Civil Judge only.
4.3 Thirdly, this Court having pecuniary jurisdiction from Rs. 3 Lakhs to Rs. 2 Crores has on no point of time, the pecuniary jurisdiction to try this case and this Court cannot assume its jurisdiction to entertain the application under Order 6 Rule 17 CPC, specially when the result of allowing of such application will not bestow jurisdiction on this Hon'ble Court as the pecuniary value exceeds Rs. 2 Crores. 4.4 The learned counsel for defendant has referred to the case of Division Bench of Madaras High Court in "Ramanna CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 21 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
vs. Ami Reddy AIR 1931 MAD 67 (DB)" and of the Calcutta High Court in "Mst. Zohra Khatoon vs. Janab Mohd. Jane Alam & Ors." AIR 1978 CAL 133 (DB) where it was categorically held that a Court which inherently lacks jurisdiction to decide a suit cannot decide on an application for amendment, as doing so would tantamount to the Court not having jurisdiction assuming jurisdiction to do something which is prima facie duty and function of the proper Court. 4.5 The learned counsel has further referred and relied in the written arguments on the case of Madhya Pradesh High Court in "Laljji Ranchhoddas vs. Narottam Ranchhoddas" AIR 1953 Nag 273, wherein it was held that : "where plaint was originally within the jurisdiction of the court, but falls outside if because of the amendment, court can allow amendment and later return the plaint. But where court has no jurisdiction, the court has no right to direct or allow the amendment of the plaint. The proper procedure in such a scenario is to return the unamended CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 22 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
plain together with the application for amendment for presentation before the proper court which has jurisdiction to consider the original claim and the claim sought to be incorporated in the plaint by the proposed amendment."
4.6 Fourthly, the reliance by the plaintiff on the judgment of Full bench of Delhi High Court titled as "Subhashini Malik vs. S.K. Gandhi & Ors, (2016) 233 DLT 83"
and especially para 159 was misplaced because in the matter before the High Court, the Court which entertained the amendment application was originally having the jurisdiction to entertain the matter pending before it. 4.7 It was further argued that the reliance of the plaintiff on Lakha Ram Sharma vs. Balar Marketing (P) Ltd. (2008) 17 SCC 671 was also misplaced because in that case the facts were distinguishable and the Court entertaining amendment application originally had jurisdiction to hear the suit. 4.8 It is further argued that even the arguments of the plaintiff to the effect that superior Court is always having jurisdiction to entertain the suit which as per pecuniary CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 23 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
jurisdiction is to be tried by the Court of lower jurisdiction is not applicable in the present case because as per Commercial Court Act Sub Section 2 (1) (i), this Court being designated as Commercial Court cannot entertain the matter originally instituted as it has been valued for pecuniary jurisdiction for less than Rs. 3 Lakhs.
4.9 It is further argued that in case the present amendment application is entertained by this Court, the right and contention of the plaintiff will be prejudiced because in case the present amendment application is heard by the Court of Senior Civil Judge, the defendant shall have the right of appeal to District Judge Court which shall be forfeited or will not be available in case the amendment application is decided by this Court.
4.10 Lastly, it is argued that the present amendment application should not be entertained by this Court as the same can be entertained by the Court having pecuniary jurisdiction in the matter at the time of the filing of the present suit.
5. Arguments of plaintiff
5.1 Learned counsel for plaintiff in his written submissions has opposed the arguments of the defence counsel CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 24 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
stating that the opposition to the amendment application by defendant no. 3 to 5 would only delay the trial. 5.2 Secondly, the defendant want to get rid of submissions recorded on 11.05.2020 and 13.05.2020 wherein defendant has undertaken not to disrupt the essential services like electricity or enjoyment of the possession by the plaintiff / lessee. The defendant want to withdraw those voluntary statement by citing mere technicalities. 5.3 Thirdly, it is argued that the Court which is seized with the matter is competent to decide the amendment application notwithstanding the fact that after amendment it ceases to have pecuniary jurisdiction to try the suit. Reliance has been placed on the case of Subhashini Malik vs. S.K. Gandhi & Ors. (supra).
5.4 Fourthly, it is already explained by the plaintiff that inadvertently due to error the correct valuation was not done at the time of filing of the suit and for that purpose the amendment is necessary as the valuation is to be done with regard to permanent and mandatory injunction as claimed in respect of the immovable property subject matter of lease deed used for Commercial and trade purposes as per Section 7 (iv) of the Court Fees Act i.e. that the suit has to be valued for the purpose CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 25 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
of Court fees at the annual rental value of the property. It is, therefore, argued that this Court is competent to decide the amendment application and the amendment application need to be allowed as the said amendment is just as necessary for disposal of the controversy in the suit and also to made the correct valuation of the plaint for the purpose of Court fees and jurisdiction.
6. I have considered the rival submissions made at bar, carefully examined the record as well as case law relied by the parties.
7. The counsel for defendant has no dispute with the law laid down by the Hon'ble High Court of Delhi in Subhashini Malik vs. S.K. Gandhi & Ors. (supra) wherein the case of Hon'ble Apex Court in Lakha Ram Sharma vs. Balar Marketing (P) Ltd. was relied by the Hon'ble High Court of Delhi. The only objection of the learned counsel for defendant is that the ratio of the said case is distinguishable on account of different facts and circumstances of the present case. The learned counsel has stressed the said aspect on the ground that the Court in Subhashini Malik vs. S.K. Gandhi & Ors. (supra) has the CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 26 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
jurisdiction at the time of institution of suit whereas in the case in hand this Court did not have the pecuniary jurisdiction to entertain the present suit when the same was filed because the same was valued for the Court fees and jurisdiction at Rs. 130/ each, and the pecuniary jurisdiction for the said valuation lies with the Court of Senior Civil Judge and not with the Court of District Judge (Commercial Court) because this Commercial Court is competent to try suit only for valuation of above Rs. 3 Lakhs to Rs. 2 Crores.
8. As is evident from the proceedings of this case, this case was filed as an urgent matter during the lockdown period and at that time the Court of Senior Civil Judge was not working and for the purpose of entertaining the urgent civil matters, the Court of ADJ / ASJ / on duty roster were assigned to hear all civil matters irrespective of the fact that the said matter was for the pecuniary jurisdiction of a Civil Judge or a ADJ or District Judge (Commercial Court). The Court of Senior Civil Judge started functioning with effect from 16.06.2020 in view of the Order No. 19 dated 15.06.2020 of Learned District & Sessions Judge, SouthEast, Saket Courts.
CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 27 of 56(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
"
OFFICE OF THE DISTRICT & SESSIONS JUDGE, SOUTHEAST DISTRICT SAKET COURTS COMPLEX, NEW DELHI ORDER NO. 19 Dated 15.06.2020 In compliance with the office Order No. 16/DHC/2020 dated 13.06.2020 from Hon'ble Delhi High Court, functioning of Courts subordinate to Delhi High Court shall continue to remain suspended till 30.06.2020 on account of Covid 19 lockdown. Further, as directed by the Hon'ble High Court of Delhi, all the subordinate courts shall take up urgent cases (except where evidence is to be recorded) as per the following guidelines :
i. All courts subordinate to the High Court, shall take up urgent cases (except where evidence is to be recorded) of their respective courts through Video Conferencing mode only.
ii. The Judicial Officers presiding over such courts shall hear matters through Video Conferencing from their respective residences w.e.f. 16.6.2020. The Judicial Officers may be permitted to come to court for holding Video Conferencing hearings from their respective chambers only when they do not have requisite technical infrastructure at their residences.
iii. One staff of their respective court shall remain present turn by turn on every working day till 30.06.2029 to facilitate the Judicial Officer to conduct the Video Conferencing and for transmission of requisite documents / records to the Judicial Officers.CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 28 of 56
(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
iv. Considering the present pandemic situation, the facility of E filing and hearings through Video Conferencing are extended to Civil Courts and in that regard, it is directed that :
(a) The facility of Efiling of cases under CIS 2.0, as already made available for the Family Courts and Commercial Courts, is extended to the other Civil Courts in order to enable Lawyers to file fresh matters, which shall be heard by the concerned Courts through Video Conferencing;
(b) The said facilities can also be used for moving any urgent application in a pending matter where Video Conferencing hearing is required.
(c) In case a counsel/litigant does not wish to avail the facility of efiling and Video Conferencing hearing, then the period of limitation for actions (if applicable) shall be governed by decision of the Hon'ble Supreme Court in SuoMotu Writ Petition (Civil( No. 3/2020 titled In re: Cognizance For Extension of Limitation dated 23.3.2020, wherein the period of limitation has been extended till further orders.
Moreover, if any Ld. Counsels/Parties seeks their matter to be taken up urgently may move an application for urgent hearing or file written submission through email to the respective Court on their EMail Id which is annexed herewith as AnnexureA. CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 29 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
The Judicial Officers are requested to instruct the officials of their Courts to upload the cause list with next date of hearing on website for information in addition to CIS.
Further, in continuation to this Officer Order No. 18 dated 14.06.2020, I hereby authorize the following Judicial Officers of SouthEast District, Saket Courts Complex, New Delhi to hear and dispose of fresh bail/urgent Criminal Applications in the cases where charge sheet has not been filed w.e.f. 16.06.2020 to 30.06.2020:
Sl. Name of the Judicial Officers dealing with fresh urgent bail matters Period of No pertaining to Duty .
Shaheen Bagh, Amar Colony, C.R. Jaitpur, Kalindi Kunj, Okhla Park, Hazrat Nizamuddin, Jamia Industrial Area, Lajpat Nagar, Nagar, Lodhi Colony, New Friends Kalkaji, Pul Prahlad Pur, Colony, EOW Cell, Nehru Place Sunlight Colony Metro, Okhla Vihar Metro, Crime and Branch SED, Badarpur, Defence Applications for interim bail, Colony, Greater kailash, Sarita preferred by the panel lawyers Vihar, CAW Cell, Kotla of DSLSA.
Mubarakpur, Govindpuri,
1. Sh. Gaurav Rao, Sh. Sudhanshu Kaushik, 16.06.2020 ASJ01 (POCSO) ASJ07 (POCSO)
2. Sh. Sandeep Garg, Sh. Rajesh Kumar Singh, 17.06.2020 ASJ (Spl. JudgeFTC) ASJ06 & 18.06.2020
3. Sh. Suresh Kumar Gupta, Sh. Sandeep Yadav, 19.06.2020 ASJ04/Special Judge (NDPS) ASJ02 & 20.06.2020
4. Sh. Gulshan Kumar, Sh. Sanjay SharmaII, 22.06.2020 ASJ03 ADJ05 & 23.06.2020
5. Ms. Shelly Arora, Ms. Neelam Singh, 24.06.2020 ADJ01 ADJ02 & 25.06.2020 CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 30 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
6. Sh. Naresh Kumar Laka, Sh. Vipin Kumar Rai, 26.06.2020 ADJ03 ADJ06 & 27.06.2020
7. Sh. Sameer Bajpai, Ms. Vandan Jain, 29.06.2020 ASJ05 ADJ07 & 30.06.2020 Rest of the conditions mentioned in the previous Circular bearing Endst.
No. Judl./Circular/F.43/SouthEast/Saket/2020/57575796 dated 30.05.2020 shall remain be same.
(NEENA BANSAL KRISHNA) District & Sessions Judge (SE) Saket Courts Complex, New Delhi No. Judl./Circular/F.43/SouthEast/Saket/2020/64546459 New Delhi, Dated :
15.06.2020 Copy forwarded for information and necessary action to :
1. The Registrar General, Hon'ble High Court of Delhi, New Delhi
2. The Ld. District & Sessions Judge (HQ), THC, Delhi,
3. The Secretary, Bar Association, Saket Courts, New Delhi,
4. The PRO, SouthEast District, Saket Courts Complex, New Delhi,
5. The R&I Branch, South East District, Saket Courts, New Delhi, for uploading in LAYERS,
6. Guard File.
District & Sessions Judge (SE) Saket Courts Complex, New Delhi"
9. In view of these special circumstances, the Court of District Judge (Commercial Court) or the Court of Learned ADJ was authorized in view of the directions of the Hon'ble High Court of Delhi through various orders relating to the suspension CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 31 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
of the functioning of the Court to entertain the civil matters of urgent nature. Admittedly, the defendants have joined the proceedings and has also made some undertakings on the basis of which consent order has been passed by various Courts as find produced in the beginning of this order. It does not appeal to the conscience of the Court that if this Court has jurisdiction to entertain the present matter in special circumstances irrespective of the fact that it may not have the pecuniary jurisdiction to entertain the matter in question, the resumed functioning of the Court of Senior Civil Judge would take away the jurisdiction of this Court to entertain the amendment application.
10. Moreover, the present case is a case of incorrect valuation of the suit for the purpose of Court fees and jurisdiction in violation of the law applicable to the said valuation. So, the contention of the learned counsel for defendant that the case of Subhashini Malik vs. S.K. Gandhi & Ors. (supra) is distinguishable is not tenable because in the present case this Court is faced with the question of determination of correct valuation of the suit for the purpose of Court fees and jurisdiction. The learned counsel for defendant CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 32 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
themselves have taken objection to the valuation so done by the plaintiff and there is no dispute between the counsel for plaintiff and defendant that the correct valuation of the present suit is to be done as per Section 7 (iv) of The Court Fees Act, 1870.
11. The full bench of Hon'ble High Court of Delhi in the matter of Subhashini Malik vs. S.K. Gandhi & Ors. (supra) decided a reference made by Learned Single Judge who in his respectful opinion said that "a larger bench may also decide the issue as to whether the Court which does not have pecuniary jurisdiction to entertain the suit, such Court can amend an application to amend the plaint to bring the suit claim within the pecuniary jurisdiction of the Court."
12. The Hon'ble High Court of Delhi with the majority decision in this case was pleased to hold in para 17 sub para J as under : "(J) Notice may next be taken of the difference between minimum pecuniary jurisdiction of a Court and maximum pecuniary jurisdiction of the Court. While a Court is said to be not having CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 33 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
jurisdiction to try a suit above its maximum pecuniary jurisdiction, the converse is not true. A court cannot be said to be not having jurisdiction over suits below its minimum pecuniary jurisdiction. Reference in this regard can be made to V. Ramamirtham vs. Rama Film Services AIR 1951 Madras 93 (FB) where it was held in the lead judgment that while Section 156 of the CPC enjoins the institution of a suit in the Court of the lowest grade competent to try it, it does not oust the jurisdiction of the Court of a higher grade; even if the Court of a higher grade tries and disposes of a suit which could have been instituted in a Court of a lower grade, the decision rendered is not without jurisdiction and is not a nullity. Viswanatha Sastri, J. in his concurring opinion observed that the object of Section 15 CPC is only to prevent superior Courts being flooded or overcrowded with suits triable by Courts of CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 34 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
inferior grade and it merely regulates procedure and not jurisdiction. It was further held that a Court of superior grade does not act without jurisdiction in trying a suit which under Section 15 might and ought, by reason of its valuation, to have been tried by an inferior Court. A Full Bench of the High Court of Andhra Pradesh also in Kesavarapu Venkateswarlu vs. Sardharala Satyanarayana AIR 1957 Andhra Pradesh 49 held that Section 15 CPC lays down a rule of procedure and not of jurisdiction of the Superior Court. This Court also in Taran Jeet Kaur vs. G.S. Bhatia 2009 (108) DRJ 89 has taken the same view."
12.1 In para N of para 17 it was further held that : "We have already noted herein above the difference between the maximum pecuniary jurisdiction and the minimum CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 35 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
pecuniary jurisdiction and that the minimum pecuniary jurisdiction does not mean that the Court has no jurisdiction over suits, valuation whereof for the purposes of jurisdiction is below its minimum pecuniary jurisdiction. The rule of institution of suit in Courts of minimum pecuniary jurisdiction under Section 15 of the CPC, as aforesaid has to be read along with Section 21 of the CPC."
12.2 Further the finding of the Hon'ble High Court in the decision from para 159 to 162 are relevant and are reproduced hereunder: "159. I would, at this stage, like to refer to a decision of Division Bench of this Court in Mahesh Gupta vs. Ranjit Singh & Others, AIR 2010 Delhi 4, and make specific reference to paragraph 7 thereof, which reads :
7. The issue therefore is, can this application for amendment be CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 36 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
allowed. It is trite that the Court which does not have jurisdiction to try the matter would have no jurisdiction to pass any orders which affect the rights of the parties. The orders which are passed by a Court which has no jurisdiction to determine the matter, are without jurisdiction, and, therefore, of no effect and purport. The Court therefore which does not have pecuniary jurisdiction cannot pass any orders allowing an application seeking amendment of a plaint to bring the suit plaint within the pecuniary jurisdiction of a Court.
I have reservation on the broad
proposition as expounded in
paragraph.
7. Taken to its logical end, it would mean that even the subordinate court would not have jurisdiction to decide an application for amendment for enhancing CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 37 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
the pecuniary value, for if the application for amendment is accepted, the subordinate court would not have pecuniary jurisdiction to pass any order. This would result in a situation of circulus inextricabilis. We should avoid Renvoi. The terms has been defined in Black's Law Dictionary, Eight Edition (Pg. 1324) as the doctrine under which a Court in resorting to foreign law adopts as well as foreign law's conflictoflaws principle which may in turn refer the Court back to the law of the forum. Logically, therefore, we should not follow an approach which leads to infinite regress as this would lead to absurdity. Pertinently, the Division Bench in Mukesh Gupta (supra) had exercised the power under Section 24 of the Code and had retained the suit. It was also observed that the ratio of the decision would not be applicable where the contention of the plaintiffapplicant was CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 38 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
that there was a typographical or a clerical error while typing the valuation paragraphs in the plaint.
160. Almost identical question had arisen before the Supreme Court in Lakha Ram Sharma versus Balar Marketing Private Limited, (2008) 17 SCC 671 and it was held that it is settled law that merely because an amendment may take the suit out of jurisdiction of the court is no ground for refusing the amendment. In fact, a reading of the ratio would show that even the converse was upheld. In the said case, the High Court had rejected the amendment on the ground that the valuation of the suit was sought to be increased from Rs.1 lac to Rs.10 lacs so as to only take the suit out from the jurisdiction of that court. It was observed:
4. It is settled law that while considering whether the amendment is to be granted or not, the Court does CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 39 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
not go into the merits of the matter and decide whether or not the claim made therein is bonafide or not. That is a question which can only be decided at the trial of the Suit. It is also settled law that merely because an amendment may take the suit out of the jurisdiction of that Court is no ground for refusing that amendment. We, therefore, do not find any justifiable reason on which the High Court has refused this amendment. Accordingly, the impugned order is set aside and that of the trial court is restored. We, however, clarify that as the appellant has now raised the claim from Rs. 1 Lakh to Rs. 10 Lakh, the trial court will determine, whether or not Court Fees are correctly paid.
5. The appeal stands disposed of accordingly. No order as to costs
161. It can be urged that for every power CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 40 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
there should be prior or a higher law as a formalist may hold. But insistence of such a requirement may not be entirely desirable and necessary for it may lead to infinite regress and mandates validation for every action. To avoid this, the law acknowledges that power and authority could be bestowed expropio vigore, from its own strength. Such nonstatutory power could be traced to custom, consent or contract or evolution of natural law as understood and developed by human reasoning. The principle that a court has jurisdiction to determine the scope of its own jurisdiction has gained recognition by the process of evolution. In this manner, the general theory of jurisdiction equates the power to determine with the existence of jurisdiction, to resolve the paradox and dilemma referred to above. If we do not accept and apply this principle, and hold that the principle of legal selfreference is CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 41 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
not inherent, and the question or challenge to jurisdiction can only be answered by another court, it would enable a determined party to push back and delay the litigation.
162. The view we have taken would not only cut short delays, but is a pragmatic view. It enables the Court where the suit is pending to determine and decide the application for amendment relating to pecuniary jurisdiction for if the amendment is allowed or dismissed, the suit will be retained or transferred and parties are not relegated to another court where the application for amendment would then be considered and depending upon the decision, the suit could be re transferred or returned to be presented in the earlier court. If we follow the second procedure, it would cause delay and make the procedure more cumbersome and difficult. This would not be in the interest CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 42 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
of the litigant wanting an expedited and quick disposal. The decision in Lakha Ram's case (Supra) adopts a pragmatic view to hold that he court is in seisin of the matter can decide the application for amendment even when an amendment, if allowed, would take the suit/proceedings beyond the pecuniary jurisdiction of that Court. As sequitor the High Court being in seisin of the suit, it would not be barred or prohibited from deciding the application for amendment, which if allowed, would have the effect of the suit being tried and decided in the High Court."
13. The present suit for permanent and mandatory injunction was filed with the following prayer : "a) pass a decree of mandatory injunction in favour of the plaintiff and against the defendants thereby directing the defendants specially defendant no. 3, 4 CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 43 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
and 5 to restore the electricity supply to the coworking centre being operated by the plaintiff from the lease premises under lease deeds dated 28.12.2017, 28.12.2017 and 05.1.2018;
b) pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants specially the defendants from interfering and creating disturbance and are preventing the plaintiff and its community members from enjoying the peaceful and vacant possession of the co working center operating from the leased premises and / or disrupting the electricity supply and / or other utility services being provided to the plaintiff in the lease premises after its restoration subject to the terms and conditions of the lease deeds, without due process of law;
c) Award costs of the litigation in favour of the plaintiff and against the CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 44 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
defendants;
d) Any other or further relief(s) / order(s) which the Hon'ble Court may deem fit and proper in the facts and circumstances of the case, may also be passed in favour of the plaintiff and against the defendants."
14. The specified value for the purpose of Court fees and jurisdiction of the suit is required to be determined as per Section 12 sub section 1 (c) of the Commercial Courts Act, 2015 which is reproduced as under : "(C) Where the relief sought in a suit, appeal or application relates to immovable property or to a right therein, the market valued of the immovable property, as on the date of filing of the suit, appeal or application, as the case may be, shall be taken into account for determining Specified Value."
CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 45 of 56(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
15. The Section 12 of the Commercial Courts Act has been interpreted by the Hon'ble High Court of Delhi in the case of Soni Dave vs. M/s Trans Asian Industries Expositions Pvt. Ltd. CS (OS) No. 2330/2008 2016 SCC Online Del 4282 AIR 2016 Del 186 of which para 27 and 28 are relevant and are reproduced as under : "27. In my view Section 12 of the Commercial Courts Act providing for determination of specified valued as defined in Section 2(i) thereof is not intended to provide for a new mode of determining the valuation of the suit for the purpose of jurisdiction and Court fees. It would be incongruous to hold that while for the purpose of payment of court fees the deemed fiction provided in the Court Fees Act for determining the value of the property is to apply but not for determining the specified valued under the Commercial Courts Act.
28. In my opinion Section 12 of the CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 46 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
Commercial Courts Act has to be read harmoniously with the Court Fees Act and the Suits Valuation Act and reading so, the specified value of a suit where the relief sought relates to immovable property or to a right thereunder has to be according to the market value of the immovable property only in such suits where the suit as per the Court Fees Act and / or the Suits Valuation Act has to be valued on the market value of the property and not where as per the Court Fees Act and the Suits Valuation Act the valuation of a suit even if for the relief of recovery of immovable property or a right therein is required to be anything other than market value as is the case by a landlord for recovery of possession of immovable property from a tenant."
16. Thus, in view of the ratio of Soni Dave vs. M/s Trans Asian Industries Expositions Pvt. Ltd. (supra) the CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 47 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
valuation of the present suit is to be done as per Section 7 of the Court Fees Act and not as per Section 12 (1) (c) of Commercial Courts Act.
17. It is for this purpose the present amendment application has been filed by the plaintiff seeking permission of the Court to value the suit for the purpose of Court fees and jurisdiction as per Section 7 of the Court Fees Act at the annual rental value of the suit property which is Rs. 2,62,27,441/. The amendment sought is covered under Section 7 (xi) (f) of The Court Fees Act because in para no. 23 to 24 of the plaint, the plaintiff has sought abatement of rent due to Force Majeure Clause during the lockdown period. The Section 7 (xi) (f) of The Court Fee Act is reproduced here below : "(f) for abatement of rent according to the amount of the rent of the (immovable property) to which the suit refers, payable for the year next before the date of presenting the plaint."
CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 48 of 56(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
18. Admittedly, both the parties have agreed that correct valuation of the present plaint was not done for the purpose of Court fees and jurisdiction and there is almost agreement between both the parties i.e. the plaintiff and the defendant that the suit has to be valued for the purpose of Court fees and jurisdiction as per Section 7 of The Court Fee Act.
19. Now, this Court has to decide whether the said mistake in the valuation can be rectified or corrected by this Court or this Court has no jurisdiction to entertain the amendment application for making the correct valuation of the plaint for the purpose of Court fees and jurisdiction? The Commercial Court Act has been enacted by the parliament for expeditious disposal of the commercial dispute. One of the major object of enactment of the Commercial Court Act was to improve the ranking of our country in the ease of doing business which is being monitored by World Bank. If a commercial suit is allowed to be shuttled from one Court to another for the purpose of doing ritualistic formality of correcting the valuation which has been incorrectly done, the very purpose of enactment of the Commercial Courts Act shall stand defeated. I find force in the arguments of learned counsel for plaintiff that the opposition of CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 49 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
defendant to entertain the present application by this Court, would delay the proceedings and disposal of the present suit and no purpose would be served by sending the present file to the Court of Learned Senior Civil Judge for the purpose of correcting the valuation by way of amendment application. The practical and pragmatic view in the given facts and circumstances of the case would be to allow the mistake of the plaintiff in valuation of the plaint to be corrected by this Court who is seized with the matter notwithstanding whether it would be having pecuniary jurisdiction to entertain the same or not, if the amendment is allowed. Admittedly, the Court of Senior Civil Judge will also not have the jurisdiction to entertain the present suit, in case the amendment is allowed because after the amendment the pecuniary jurisdiction to entertain the present suit would lie with the Hon'ble High Court of Delhi only. Thus, from the very inception of the suit if the correct valuation had been done by the plaintiff, the present plaint was required to be presented in the Hon'ble High Court of Delhi and not in the Court of District Judge (Commercial Courts) or with the Senior Civil Judge.
20. For the above discussion and because of the ratio of "Subhashini Malik vs. S.K. Gandhi & Ors, (supra)", I am of the CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 50 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
considered opinion that this Court is competent to decide the amendment application. In the given facts and circumstances of the case, it is apt and apposite for this Court to entertain and decide the question of correct valuation of the suit for the purpose of Court fees and jurisdiction.
21. Now, I proceed to decide the amendment application.
22. In this amendment application dated 31.07.2020, the plaintiff want to substitute para 39 of the plaint which is as under : "39. That the value of the suit for the purpose of jurisdiction and court fees is being valued at Rs. 2,62,27,441/ (annual rent payable as per Section 7 of the Court Fees Act, 1870) and for relief of permanent and mandatory injunction is valued at Rs. 130/ each. The requisite court fees on the jurisdiction and claim have been affixed on the plaint."
CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 51 of 56(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
It is stated that the present amendment is necessary and proper for the adjudication of the present suit; the present amendment suit is only based on inadvertent error; that the amendment will not in any manner modify, change the nature of the suit, the cause of action and the relief claimed in the suit. It is therefore stated that the amendment application be allowed in the above circumstances.
23. The defendant no. 3 to 5 has filed reply to the said application. The preliminary objection taken is that this Court has no jurisdiction to try and entertain the present suit and subsequently the application seeking amendment. It is further stated that the defendant from the very beginning has taken objection to the jurisdiction of this Court to entertain the present suit because in view of the valuation of the plaint for the purpose of Court fees and jurisdiction the suit was triable by the Court of Senior Civil Judge or Civil Judge and not by the Court of District Judge (Commercial Courts).
24. On merit, it is stated that it is wrong and denied that valuation of the suit for the purpose of jurisdiction i.e. annual rental as per Section 7 of the Commercial Court Act CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 52 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
totaling to Rs. 2,62,27,441/ was inadvertently not mentioned while seeking relief in suit for permanent mandatory injunction. It is further stated that the suit filed by the plaintiff is liable to be returned under Order 7 Rule 10 CPC at the very thrushhold and the amendment application is an attempt to circumventing the same. It is prayed that the plaint be returned under Order 7 Rule 10 CPC to a Court of competent jurisdiction alongwith second amendment application. The defendant no. 1 and 2 has not filed any reply to this amendment application. Thus, from the contents of the reply it is evident that the defendants are simply opposing the entertaining of amendment application by this Court and are not opposing the amendment to plaint for correcting the valuation of the suit for the purpose of Court fees and jurisdiction.
25. The competency of this Court to entertain the present application has already been decided in the previous paragraphs. Since there is almost no opposition to the amendment sought to correct the valuation of the present suit for the purpose of Court fees and jurisdiction, the arguments made on behalf of defendant that their right to appeal will be forfeited does not hold water. The defendant has not suggested CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 53 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
any other correct valuation of the plaint for the purpose of Court fees and jurisdiction. Practically there is no opposition to the amendment sought in the amendment application under consideration. For the above reasons, I am of the considered opinion that in case the amendment is allowed the defendant will not be prejudiced in any manner because of the said amendment which is just and necessary for the proper adjudication of the present dispute. In case, the amendment sought is allowed there shall be no change in the cause of action or in the relief claimed in the present suit. The para 39 of the original plaint regarding the valuation is as under : "39. That the value of the suit for the purpose of court fees and jurisdiction for relief of permanent injunction and mandatory injunction is valued at Rs. 130/ each. The requisite court fees on the relief claimed have been affixed on the plaint."
The amended para no. 39 is reproduced herebelow : "39. That the value of the suit for the purpose of jurisdiction and court fees is CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 54 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
being valued at Rs. 2,62,27,441/ (annual rent payable as per Section 7 of the Court Fees Act, 1870) and for relief of permanent and mandatory injunction is valued at Rs. 130/ each. The requisite court fees on the jurisdiction and claim have been affixed on the plaint."
26. Thus, the amendment as sought above is just and necessary for proper and lawful adjudication of the controversy in dispute. For these reasons, I am of the considered opinion that the amendment is necessary and lawful and the amendment application is therefore allowed in above terms. The amended plaint alongwith requisite Court fees is already placed on record by the plaintiff.
27. As is evident from the amended plaint in para 39, the pecuniary jurisdiction to entertain the present plaint lies with the Hon'ble High Court of Delhi because the pecuniary jurisdiction of this Court as per Section 3 of the Commercial Court Act is to entertain a commercial suit of value not below Rs. 3 Lakhs and not exceeding Rs. 2 Crores which is a pecuniary CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 55 of 56 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
jurisdiction of a District Court in Delhi. Since the present suit is valued for the purpose of Court fees and jurisdiction at Rs. 2,62,27,441/, therefore, the plaint is liable to be returned under Order 7 Rule 10 CPC subject to the provision of Rule 10A.
28. For the above reasons, the plaint is ordered to be returned to the plaintiff for presenting the same before the Court of competent jurisdiction. Plaintiff may take steps as required under Order 7 Rule 10A of the CPC.
File be consigned to Record Room after due compliance.
Announced through Video Conferencing on 14.09.2020.
(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.
The judgment contains 56 pages all checked and signed by me.
CS (Comm) No. 179/20 AWFIS Space Solutions Pvt. Ltd. vs. M/s P. Seven General Finance Pvt. Ltd. Page 56 of 56(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts New Delhi.