Case Note & Summary
The respondent (original plaintiff) filed a Commercial Summary Suit under Order 37 Rule 2 of the Code of Civil Procedure, 1908 (CPC) against the petitioners (original defendants) for recovery of Rs.35,00,000/- with interest at 18% p.a., claiming the amount was advanced as a friendly loan. The defendants filed a Notice of Motion No.877 of 2021 under Order 7 Rule 10(1) CPC seeking return of the plaint on the ground that the suit was not a commercial dispute as defined under Section 2(c) of the Commercial Courts Act, 2015, and thus the court lacked jurisdiction. The plaintiff in her affidavit admitted that the word 'commercial' before 'summary suit' was a mistake and that the suit was under CPC, not under the Commercial Courts Act. The trial court rejected the notice of motion. The defendants filed the present writ petition challenging that order. The High Court examined the definition of 'commercial dispute' under Section 2(c) of the Commercial Courts Act, 2015, and noted that a friendly loan does not fall within any of the categories enumerated therein. The court held that the suit was correctly filed as a summary suit under Order 37 Rule 2 CPC and not as a commercial suit. The trial court's order rejecting the notice of motion was upheld, and the writ petition was dismissed.
Headnote
A) Civil Procedure - Summary Suit - Order 37 Rule 2 CPC - Commercial Suit - The plaintiff filed a summary suit for recovery of a friendly loan of Rs.35 lakhs. The defendant sought return of plaint under Order 7 Rule 10 CPC arguing it was not a commercial dispute. The plaintiff admitted the suit was not commercial. The trial court rejected the defendant's notice of motion. The High Court held that a friendly loan is not a commercial transaction under Section 2(c) of the Commercial Courts Act, 2015, and the suit was correctly filed as a summary suit under CPC. The petition was dismissed. (Paras 1-12)
Issue of Consideration
Whether a suit for recovery of a friendly loan, filed as a summary suit under Order 37 Rule 2 CPC, can be treated as a commercial suit under the Commercial Courts Act, 2015, and whether the plaint should be returned for lack of commercial jurisdiction.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order rejecting the notice of motion. The court held that the suit was correctly filed as a summary suit under Order 37 Rule 2 CPC and not as a commercial suit under the Commercial Courts Act, 2015.
Law Points
- Commercial Courts Act
- 2015
- Section 2(c) definition of commercial dispute
- Order 7 Rule 10 CPC
- Order 37 Rule 2 CPC
- friendly loan not a commercial transaction
Case Details
2021 LawText (BOM) (12) 21
WRIT PETITION NO. 8393 OF 2021
Mr. Ganesh Murthy i/b K.V. Aiyar & Associates for the petitioners, Mr. Rizwan Ahmed i/b Amar Legal for respondent
M/s. Glasswood Realty Pvt. Ltd. and ors
Mrs. Chandravilas Kailashkumar Kothari
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Nature of Litigation
Writ petition challenging the rejection of a notice of motion seeking return of plaint in a summary suit for recovery of a friendly loan.
Remedy Sought
The petitioners (original defendants) sought return of the plaint under Order 7 Rule 10 CPC on the ground that the suit was not a commercial dispute under the Commercial Courts Act, 2015.
Filing Reason
The respondent (original plaintiff) filed a Commercial Summary Suit under Order 37 Rule 2 CPC for recovery of Rs.35,00,000/- as a friendly loan. The defendants contended that the suit was not a commercial dispute and thus the court lacked jurisdiction.
Previous Decisions
The trial court rejected the defendants' Notice of Motion No.877 of 2021 seeking return of plaint.
Issues
Whether a suit for recovery of a friendly loan can be considered a commercial dispute under Section 2(c) of the Commercial Courts Act, 2015.
Whether the plaint should be returned under Order 7 Rule 10 CPC for lack of commercial jurisdiction.
Submissions/Arguments
Petitioners argued that the suit was filed as a 'Commercial Summary Suit' but the transaction was a friendly loan, not a commercial transaction, and therefore the plaint should be returned.
Respondent admitted that the word 'commercial' was a mistake and the suit was under CPC, not under the Commercial Courts Act, and thus the notice of motion was rightly rejected.
Ratio Decidendi
A friendly loan does not fall within the definition of 'commercial dispute' under Section 2(c) of the Commercial Courts Act, 2015. A suit for recovery of such a loan filed under Order 37 Rule 2 CPC is not a commercial suit, and the plaint cannot be returned under Order 7 Rule 10 CPC on that ground.
Judgment Excerpts
A Commercial Summary Suit under Order 37 Rule 2 of the Code of Civil Procedure was filed by Mrs. Chandravilas Kailashkumar Kothari (respondent herein) seeking the following relief:-
The plaintiff staked the claim on the basis that the amount is due and payable to her, from the defendant as the amount of Rs.35 lakhs was advanced as a friendly loan and on default in its repayment, it was sought back with interest.
The Notice of Motion was based on a pleading that the Suit of the plaintiff do not fall within the purview of ‘commercial transaction’ contemplated under Section 2(c) of the Commercial Courts Act, 2015 and hence the Suit is liable to be returned.
I say that further in Paragraph No. 23 of the said Written Statement filed by the Defendants again it has been clearly admitted that the Plaintiff has filed the suit as Summary suit under the provision of Order XXXVII Rule 2 of CPC and therefore the Defendants are very well aware that the suit filed by the Plaintiff is under the provisions of CPC and not under the provisions of Section 20 of the Commercial Courts Act, 2015
Procedural History
The respondent filed a Commercial Summary Suit under Order 37 Rule 2 CPC for recovery of Rs.35,00,000/-. The petitioners filed Notice of Motion No.877 of 2021 under Order 7 Rule 10 CPC seeking return of plaint. The trial court rejected the notice of motion. The petitioners filed the present writ petition challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 37 Rule 2, Order 7 Rule 10
- Commercial Courts Act, 2015: Section 2(c), Section 20
