Divij Mercantiles Private Imited vs Ashoka Hawai And Shoes Pvt Ltd

ANIRUDDHA ROY, J :

This is an application filed by the defendant praying for rejection of plaint on two fold grounds:

It is noted that beyond 120 days of service of writ of summons, the defendant has filed the written statement on the basis of concession given by the plaintiff. However, subsequently the plaintiff has filed an application being IA NO.GA-COM/7/2024 praying that the written statement filed by the defendant be taken off the file. Such application is pending.

The defendant has applied for rejection of plaint.

Mr. V.V.V. Sastry, learned advocate appearing for the defendant has referred to the plaint and submits that the basis and foundation of the plaint is that the plaintiff allegedly has advanced a sum of Rs. 65,000,00/- to the defendant. The defendant has failed and neglected to return the money. Plaintiff has served legal notice. Then the plaintiff has filed the instant suit claiming principal along with interest.

Mr. Sastry has drawn attention of this Court to the statements of the plaintiff at page 27 of the application with regard to the documents relied upon by the plaintiff and the copies of the document annexed to the plaint and submits that the plaintiff has not whispered of any mercantile document or any written agreement in support of the transaction. Nowhere in the plaint any averment has been made to bring the plaint within the four corner of the definition of commercial disputes within the meaning of the said CC Act. Hence, the instant suit is not a commercial suit and the plaint filed should be rejected. In support, Mr. Sastry has referred to the following judgments:

On the second issue raised by Mr. Sastry, the plea taken under BML Act, he submits that in absence of any declaration being made in the plaint by way of averments or by disclosing document that the plaintiff carries on business as a money lender having a valid certificate under BML Act, the cause of action pleaded in the plaint is also barred by law under the provision of BML Act and the plaint should be rejected. In support, Mr. Sastry submits that the Hon’ble Supreme Court had considered the issue under BML Act and passed orders dated July 23, 2024 at page 4 to the supplementary affidavit, February 16, 2026 and at page 11 to the supplementary affidavit and April 6, 2026 at page 13 to the supplementary affidavit In the matter of: Raj Kumar Santoshi versus Prashant Malik, rendered in SLP (Crl.) No. 5485 of 2024. He submits irrespective of the matter where the issue has been raised that the lenders do not have requisite certificate under the BML Act, the Court should ensure that the proceedings instituted by such money lender are nipped in the bud.

Mr. Shantanu Mishra, learned advocate led by Mr. Jishnu Chowdhury, learned senior advocate appearing for the plaintiff submits that the definition under Sub-section (c ) to Section 2 of CC Act is exhaustive in its nature and not restricted to any written contract only. The provision is illustrative and not a narrow one. There is no specified category of document mentioned under the Act which can only be defined as mercantile document. Sub-section (f) to Section 2 of CC Act is also exhaustive and illustrative. The documents referred to in the plaint and the transaction based thereupon, as pleaded in the instant plaint, are required to be ascertained first whether those documents are in the nature of mercantile document or not. Once the requirements of such ascertainment comes, it becomes a triable issue calling upon a detail fact finding enquiry and in such situation, plaint cannot be rejected summarily. In support, he has relied upon the following decisions:-

Referring to Section 13 of BML Act, Mr. Mishra, learned advocate appearing for the plaintiff submits that there is no absolute bar, at the threshold, to maintain the present plaint on the basis of the averments made therein. Sub-section (3) to Section 13 of BML Act provides, if the money lender fails to pay penalty within the time fixed under Sub-section (2) or within such further time as the Court may allow, the Court may dismiss the suit. This specifically shows that the Court has the authority to allow the money lender to cure the defect, if any, by exercising its discretion before rejecting the plaint and if the money lender cures the defect by paying the penalty, as provided under the statute, the Court is not empowered to dismiss the suit on the ground of absence of requisite licence under BML ACT. In support, he has relied upon a decision In the matter of: Dutta Vinimay Private Limited versus Dinesh Singh, reported at 2026 SCC OnLine Cal 4625.

In the light of the above submissions, the plaintiff submits that this is not a fit case, where the plaint should be rejected.

After hearing the rival contentions of the parties and upon perusal of the materials on record, it appears to this Court from a meaningful reading of the plaint that the plaintiff has instituted the suit with the case that the plaintiff has lent and advanced money to the defendant and the defendant has failed and neglected to return it. The relevant averments from the plaint are quoted below:

On reading of the definition of commercial dispute as defined under Sub-section (c) to Section 2 of CC Act, it appears to this Court that there is no mention of any written contract. However, the expression is there mercantile documents with regard to the transaction specified thereunder. The definition of document as defined under Sub-section (f) to Section 2 of CC Act speaks of documents of several kinds.

On a conjoint and harmonious reading of these two provisions of CC Act in the light of the averments made in the plaint, this Court finds that the financial transaction between the parties, as pleaded in the plaint on the basis of the available documents disclosed and mentioned in the plaint, the nature of transaction between the parties is required to be ascertained first. From the case made out in the plaint, it cannot be summarily said that the transaction between the parties, ex facie, is not a commercial transaction or that the dispute stated in the plaint, ex facie, is not a commercial dispute within the meaning of CC Act, unless a proper trial takes place on the issue.

The provisions laid down under Rule 11 to Order VII of CPC is not a mandate on the Court. The provision only mandates on a meaningful reading of the plaint, if the plaint, ex facie, is found to be, inter alia, barred by any law, the plaint shall be rejected, at the threshold. However, if on a meaningful reading of the plaint, the Court finds an arguable case is there to ascertain the nature and character of the plaint case by holding a fact finding enquiry, then such a plaint cannot be rejected, at the threshold in a summary manner and the plaint must stand for trial. Plaintiff cannot be non-suited, at the threshold, in a summary manner so loosely and hastily if an arguable and a triable case is pleaded in the plaint.

Insofar as, the issue raised under the BML Act, as narrated above, after reading the provisions laid down under Section 13 of BML Act, this Court has already rendered its view In the matter of: Dutta Vinimay Private Limited (Supra) that since a curing provision is there under the statute, the money-lender/plaintiff should be granted an opportunity before rejecting the plaint.

The order of the Hon’ble Supreme Court referred on behalf of the defendant In the matter of: Raj Kumar Santoshi (Supra) was not under a situation where the maintainability of a civil suit was under challenge and a plaint was demanded for rejection. The order was passed in connection with a criminal proceeding.

In the matter of: Prime Hitech Textiles LLP (supra), a co-ordinate Bench has returned the plaint since it had found an unimpeachable case for rejection of plaint that the transaction stated in the plaint was not of commercial in nature. In the instant case, from reading of the statements made in the plaint, this Court finds to determine the issues raised by the defendant, the same requires a properly constituted trial of the suit and hence the instant plaint cannot be rejected at the threshold. Thus, the ratio in the said judgment would not apply in the facts of the instant case.

In the matter of: Meena Vohra (supra), a co-ordinate Bench of Delhi High Court found an unimpeachable case that the disputes in the subject suit therein did not qualify as a commercial dispute. In the instant case, from reading of the statements made in the plaint, this Court finds to determine the issues raised by the defendant, the same requires a properly constituted trial of the suit and hence the instant plaint cannot be rejected at the threshold. Thus, the ratio in the said judgment would not apply in the facts of the instant case.

In view of the foregoing reasons and discussions, this Court is of the considered and firm view that the instant plaint shall stand for trial where the defendant shall be at liberty to take all points of maintainability of the suit along with other issues and the issue regarding maintainability, if raised, shall also be tried during the trial of the suit along with other issues.

It is made clear that, this Court has not gone into the merits of the issues raised by the defendant and the defendant shall be at liberty to raise the issues as the point of maintainability during the trial.

It is noted that, the defendant shall also be entitled to raise its issue with regard to the provisions under BML Act at the time of trial and this Court has not expressed any opinion on the same, at this stage.

It is also made clear that, this Court has not expressed any opinion on filing of the written statement by the defendant and the application pending in connection therewith filed by the plaintiff. The application shall be decided in accordance with law.

Resultantly, the instant application IA No.GA-COM/11/2025 stands dismissed, without any order as to costs.

The other two applications shall appear under the appropriate heading in due course.