The Legislature, in the Commercial Courts Act has not defined commercial disputes as disputes arising out of all commercial transactions. Instead, the Legislature has opted to specify the 22 transactions listed in clauses (i) to (xxii) of Section 2(1)(c) of the Commercial Courts Act, as the transactions, disputes arising wherefrom will constitute a commercial dispute. That being the position, every dispute arising from a commercial transaction, without the same falling in any of the clauses, cannot constitute a commercial dispute within the meaning of Commercial Courts Act. {Para 15}
In the High Court of Delhi at New Delhi
(Before Rajiv Sahai Endlaw, J.)
Qatar Airways Q.C.S.C. Vs Airports Authority of India & anr.
C.S. (C.O.M.M.) No. 52/2017
Decided on April 26, 2017
Rajiv Sahai Endlaw, J.
IA No. 5101/2017 (of both the defendants under Section 151 CPC).
2. The defendants, by this application state that the plaintiff has wrongly labelled the suit as a commercial suit.
3. The counsel for the plaintiff appears on advance notice and considering the nature of the application need for reply is not felt.
4. The suit is for recovery of US$ 636, 655.66 as damages for loss suffered by the plaintiff on account of damage to the aircraft of the plaintiff at Calicut International Airport and which loss according to the plaintiff is attributable to the defendants.
5. The counsel for the plaintiff on enquiry states that the claim of the plaintiff in Indian rupees, as of today, would translate to about Rs. 4.5 crores.
6. It is the contention of the counsel for the defendants that the plaintiff has titled the suit as a commercial suit invoking Section 2(1)(c)(iv) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Commercial Courts Act) when the same is not applicable.
7. Section 2(1)(c)(iv) of the Commercial Courts Act constitutes disputes “arising out of transactions relating to aircraft, aircraft engines, aircraft equipments and helicopters, including sales, leasing and financing of the same” as commercial disputes.
8. The counsel for the defendants is correct in his contention that a claim for damage caused to the aircraft would not fall within clause (iv) of Section 2(1)(c) supra.
9. The counsel for the plaintiff has stated that the plaintiff, in the replication to the written statement, has pleaded that though the suit as originally filed was by the airline but since the airline has recovered insurance, the insurer is now pursing the suit. He thus states that the suit would also fall in clause (xx) of Section 2(1)(c) constituting disputes arising out of insurance and re-insurance as commercial disputes.
10. However there is no amendment of the plaint till date and this Court, to determine the nature of the suit, is to only see the averments in the plaint and not the replication to which the defendants have not had any opportunity to respond.
11. The counsel for the plaintiff has then relied upon the judgment of the Division Bench of the Gujarat High Court in Ujwala Raje Gaekwar v. Hemaben Achyut Shah generally opining on the objects and purpose of establishment of commercial courts.
12. I have however in Sanjeev Kumar Arora v. Satish Mohan Agarwal held that all suits that in common parlance may be stated to be of commercial nature cannot be brought within the ambit of Commercial Courts Act and that if the same is done and the doors of the commercial courts and the commercial division of the High Court are opened too wide, the purpose of enactment of the Commercial Courts Act, as the specialised courts would be defeated with such courts being inundated, making expeditious disposal impossible.
13. Attention of the counsel for the plaintiff has been drawn to the judgment of the Division Bench of this Court in Hindpal Singh Jabbal v. Jasbir Singh 2016 SCC OnLine Del 4901 where it has been held that the suit for cancellation of a Power of Attorney, even if with respect to an immoveable property used exclusively in trade or commerce and as part of a transaction of sale of such property, would not constitute a commercial dispute within the meaning of Section 2(1)(c)(vii) of the Commercial Courts Act.
14. The counsel for the plaintiff has then drawn attention to the judgment of a Single Judge of the Madhya Pradesh High Court in Baldeo Kumar Agrawal v. Managing Director, M.P. Rajya Laghu Van Upaj Sahakari Sangh Maryadit 1997 (2) M.P. LJ 255, in para 14 whereof the words ‘business transactions’ have been interpreted.
15. The Legislature, in the Commercial Courts Act has not defined commercial disputes as disputes arising out of all commercial transactions. Instead, the Legislature has opted to specify the 22 transactions listed in clauses (i) to (xxii) of Section 2(1)(c) of the Commercial Courts Act, as the transactions, disputes arising wherefrom will constitute a commercial dispute. That being the position, every dispute arising from a commercial transaction, without the same falling in any of the clauses, cannot constitute a commercial dispute within the meaning of Commercial Courts Act.
16. The application is thus allowed and disposed of.
C.S. (COMM) No. 52/2017.
17. The suit be re-numbered as C.S. (O.S.).
18. List on 23rd May, 2017 before the Joint Registrar as already scheduled.
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