Roy Poruthookkaran & Anr. vs Elizabath @ Thanka & Ors.

S.Manu, J.

Defendants 1 and 2 in O.S.No.209/2023, pending before the first Additional Sub Court, Thrissur, have preferred this appeal challenging the order passed by the learned Sub Judge in I.A.No.5/2024. Plaintiff, the 1^st respondent herein, filed the I.A. under Order VII Rule 10A, averring that the suit was for dissolution of a partnership and it was required to be taken into file as a commercial suit. It was prayed that the plaint be returned or may be taken on file as a commercial suit. Appellants opposed the prayer. They contended that the dispute involved in the suit would fall within the definition of a commercial dispute under Section 2(1)(c)(xv) of the Commercial Courts Act, 2015. However, according to them, the court had no power to renumber the suit as a commercial suit or to return the plaint. They asserted that a plaint can be returned only when the court is lacking territorial or pecuniary jurisdiction and if there is lack of subject matter jurisdiction, proper course is to reject the plaint.

Learned Sub Judge, by the impugned order, held that the case at hand is one in which another court is having jurisdiction over the matter. Learned Judge also held that as per Order VII Rule 10 CPC, a plaint can be returned at any stage of the suit to facilitate its institution in the proper court. Suit filed by the 1^st respondent is not barred by any provision of law and therefore the plaint need not be rejected. Only issue is that the plaintiff did not choose the correct forum. Holding so, learned Sub Judge directed to return the plaint to enable the 1^st respondent herein to file it before the proper court.

Appellants assail the order passed by the learned Sub Judge contending that a plaint can be returned under Order VII Rule 10 CPC only for lack of pecuniary or territorial jurisdiction. Relying on a judgment of a Division Bench of this Court in Rimi Albi v. Kerala State Co operative Bank [2013 (3) KLT 769] learned counsel for the appellant submitted that the dispute is of commercial nature and a commercial suit can be filed only in a Commercial Court. He submitted that Commercial Courts Act, 2015 is a special legislation creating a special category of suits and hence no civil courts other than Commercial Courts can entertain commercial suits. He accordingly contended that the plaint was liable to be rejected under Order VII Rule 11(d). Learned counsel relied on a judgment of a Division Bench of Chattisgarh High Court in Radha Singh v. Madhusudan Tulsyan and Others [2019 SCC OnLine Chh 143] and another judgment of a Division Bench of Telangana High Court in Bhojraj Srinivas v. Bhojraj Divya [2023 KHC 4496] also in support of his submissions.

Learned counsel for the 1^st respondent submitted per contra that a commercial suit is also a civil suit and therefore there is no bar as contemplated under Order VII Rule 11(d) of CPC. He argued that none of the situations mentioned under Rule 11 are involved in the case at hand and hence the learned Sub Judge is impeccably correct in rejecting the contentions of the appellants and opting to return the plaint under Order VII Rule 10. Learned counsel contended that the issue is no longer res integra and cited the decision of this Court in C.K.Surendran v. Kunhimoosa [2021 SCC OnLine Ker 9808]. He submitted that a learned Single Judge of this Court held in the decision cited that, having accepted the plaint and numbered the suit, which actually was a commercial suit, the learned Munsiff could have only returned the plaint under Order VII Rule 10 of the CPC. He therefore argued that there is no substance in the contentions of the appellants.

It is beyond any row that the dispute involved in the suit is a commercial dispute. Neither the appellants nor the 1^st respondent contends that the suit is maintainable before the Sub Court. Variance solely concerns about the proper course to be followed, once it is found that right remedy was to lodge it as a commercial suit before the Commercial Court.

Learned counsel for the appellant, as already mentioned, asserted that the suit was liable to be rejected under Order VII Rule 11(d). The relevant provision reads as under:-

Learned counsel for the appellant argued that return of a plaint under Order VII Rule 10 can be resorted to only on the grounds of pecuniary and territorial jurisdiction. He would contend that the situation in the instant case is not of lack of pecuniary or territorial jurisdiction. But it is a case of lack of subject matter jurisdiction. Learned counsel referred to the following paragraph of the judgment of a Division Bench of this Court in Rimi Albi (Supra):-

Though the factual matrix of the case considered by the Division Bench is not plainly discernible from a reading of the judgment, it appears that the plaint was returned for presentation before appropriate forum after holding that the suit is barred by a provision of law. The Division Bench noted that return of plaint under Rule 10 can be only for presenting it to the court in which the suit should have been instituted. In other words, if a suit is barred, plaint cannot be returned for presentation to a forum other than a court under Order VII Rule 10. Nevertheless, pertinent point to be deliberated in the instant case is as to whether there is any bar pertaining to commercial suits as mentioned under Order VII Rule 11(d). In the case at hand, even according to the learned counsel for the appellants, no clause under Order VII other than Rule 11(d) can have any application.

Learned counsel for the 1^st respondent placed substantial reliance on the decision in C.K.Surendran (Supra). It is true that this Court observed in the said order that having accepted the plaint and numbered the suit, the learned Munsiff could have returned the plaint under Order VII Rule 10 of the CPC. However, the issue that arose for consideration in the said case was regarding correctness of the order passed by the learned Munsiff, transferring the suit to the Commercial Court under Section 15(2) of the Act. The revision petitioner/plaintiff contended that the dispute raised in the suit was not a commercial dispute. This Court found that the dispute involved was a commercial dispute. It was also found that learned Munsiff could not have transferred the suit invoking Section 15(5) of the Commercial Courts Act. Whether rejection of the plaint or its return is the proper course when a suit pertaining to a commercial dispute is filed before an ordinary civil court was not a matter that arose for consideration in the CRP decided by this Court. No arguments were addressed on the said issue. It is to be kept in mind that a decision is an authority only for the issue that was heard and decided in the case. Nevertheless, I agree with the observation in the judgment, relied on by the learned counsel for the respondent, for the reasons given hereafter.

Commercial Courts Act of 2015 introduced a new classification within civil litigation. The Act puts in place a more robust adjudicatory regime aiming at the swift resolution of commercial disputes. The Act provides designated forums for adjudication of causes related to commercial disputes as outlined in Section 2(1)(c). However, the Act does not impose any prohibition regarding initiation of any categories of suits. Under the terms of the Act, commercial litigation shall be dealt with in accordance with the provisions of the Code of Civil Procedure, as modified in the manner outlined in the schedule to the Act. Nevertheless, the divergences from the standard procedure set forth in the Code of Civil Procedure aim to facilitate the expedited resolution of commercial disputes. A commercial suit is therefore not envisioned as a lawsuit shorn of all attributes of a civil suit. Hence when a suit involving a commercial dispute is filed in a civil court, the situation is not comparable to institution of a suit in a court that inherently lacks jurisdiction or lodging of a suit that is barred under any laws. As Commercial Courts Act, 2015 does not impose any bar in the matter of filing of suits, I hold that the argument advanced by the learned counsel for the appellant that the suit should have been rejected according to Order VII Rule 11(d) is untenable. The aforementioned provision would apply only if there exists an embargo under any legislation.

It is interesting to note that the same contention was considered by a learned Single Judge of the High Court of Bombay in J P Realities Pvt. Ltd. v. Mahesh and others [2024 SCC OnLine Bom 883]. The learned Judge held as under:-

[Emphasis added]

In Virender Kumar v. Rekha Bhayana [(2022) SCC OnLine Del 2678] a learned Single Judge of the Delhi High Court also considered an analogous matter. It was held by the learned Judge as follows:-

[Emphasis added]

Another learned Single Judge of Delhi High Court in Mrs Kanti Singh & Ors. v. Lords Mark Industries Pvt. Ltd & Anr [CM(M) 1455/2023, CM APPL. 46265/2023] relied on the judgment in Virender Kumar (Supra) and held further as under:-

Judgment of a Division Bench of Chattisgarh High Court in Radha Singh (supra) and the judgment of a Division Bench of Telangana High Court in Bhojraj Srinivas (supra) relied on by the learned counsel for the appellants do not deal with the issue arising for consideration in this appeal.

I conclude that Order VII Rule 11(d) is inapplicable to this case, as there exists no statutory prohibition under the Commercial Courts Act. I concur with the views of the High Courts of Bombay and Delhi as articulated in their aforementioned rulings. Consequently, I perceive no illegality or error in the learned Sub Judge's decision to return the plaint under Order VII Rule 10 of the CPC, having found that the suit constitutes a commercial dispute as defined under the Commercial Courts Act. The learned Judge has taken the appropriate action; the plaint has to be returned for presentation to the proper court. The order under challenge is hence upheld.

The appeal is rejected; however, without costs.