TaxTMI 
TaxTMI 
2022 (11) TMI 1574
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....th the parties shall cooperate and an endeavour should be may be made by the Local Commissioner as well, to conclude the evidence expeditiously. 3. It is submitted in the application that vide Circular dated 28th April, 2016 and in catena of judgments, it has been clearly stated that suit covered under the first proviso of Section 7 of the Commercial Courts Act, 2015 should be transferred to Commercial Court Division of this Court. Since the present suit pertains to commercial transaction, the Order dated 01st August, 2022 be reviewed and the present suit be re-numbered as a Commercial Suit and be transferred to the Commercial Courts Division. 4. Submissions heard. 5. The Statement of Objections and Reasons to the Commercial Court Act, 2015 is to provide for speedy disposal of high value Commercial disputes so as to create a positive image in the minds of the investor world about the independent and responsive Indian Legal System. 6. The Commercial Courts Act, 2015 defines a commercial dispute and provides a special procedure for this class of litigation to be followed strictly to ensure expeditious disposal. The procedures are to be strictly interpreted and only such m....
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.... Rs.2 Crore. The only aspect which needs determination is whether the dispute comes within the definition of "Commercial Suit" as defined under Section 2(1)(c) of the Act. 10. In the case of Lady Moon Towers Pvt. Ltd. vs. Mahindra Investment Advisors Pvt. Ltd. MANU/WB/0547/2021 it was observed by the High Court of Calcutta that the definition contemplates a commercial dispute and not any other form of dispute where the basis of disagreement between the parties has a non-commercial cause. The gradation of disputes in Section 2(i)(c) takes into account all possible forms of Agreements from which a commercial dispute may arise; it makes it clear that the framers of the statute gave emphasis on the commercial flavour of the transaction as opposed to agreements entered into between the parties without a commercial purpose. The commercial purpose would generally mean a transaction by which a person's commercial or economic interest may be advanced and would result in an economic benefit to that person. It would not include an agreement where profit making is an incidental outcome of the transaction or may happen by accident. Home Loan for example is given by a person or entity to anot....
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....ercial dispute. The Calcutta High Court in Associated Power Co. Ltd. Vs. Ram Taran Roy AIR 1970 Cal 75 focused its gaze on a "mercantile document" within the meaning of the First Schedule of the City civil Court Act, 1953 as a document between merchants and traders where the construction, interpretation and meanings of words and clauses of the mercantile documents would assume significance. 12. It should also be pointed out that the words used in sub-clause (i) of clause(c) are "ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents.....". The placement of the underlined words between ordinary transactions of the named persons and the mercantile documents indicates that all transactions between the specified classes of persons will not result in a "commercial dispute" where the transaction does not relate to mercantile documents. Hence, only a dispute arising out of a transaction between the named classes of persons which has been formalised by way of a mercantile document will be a "commercial dispute" under Section 2(1)(c)(i) of the 2015 Act. 13. In the context of above discussion, it would be significant to consid....
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.... from the bank account of the plaintiff Company with defendant No. 30 and 31. Falsification of various details and various records of the plaintiff Company came to light. 19. The plaintiff came to know about the embezzlement of huge amounts by Manoj Kumar Swami in conspiracy with defendant No. 1 to 8 and defendant No. 30. The defendant No. 30 Bank acted in violation of the written instructions given for operation of its Bank account. The employees of the bank conspired with Manoj Kumar Swami to defraud the plaintiff Company. It is explained that the money was syphoned of either through forged cheques of various amounts which were presented from time to time or through direct transfers, and the money was transferred to the accounts of defendant No. 1 to 8 who were to be the family members of Manoj Kumar Swami. The details of various transactions have been explained in the plaint. 20. It is further explained that the ill-gotten money was invested by Manoj Kumar Swami for purchase of flats and huge investments were made in the Mutual Funds as detailed in the plaint. Various bank accounts were maintained in Axis Bank, Shakti Nagar Branch which was operated by defendant No.1 and i....
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....ourse of business and as incidental to it. Therefore, any loss on account of theft cannot be considered to be in the ordinary course of business transaction. 25. In Curtis v. Oldfield Ltd. (1925) 9 Tax Case 319, the question came whether a loss on account of embezzlement can be considered as a loss during the trade. In the said case it was explained that when a defalcation or embezzlement happens, it can be treated as a trade loss, when such diversion of moneys is done unauthorizedly by an employee and he takes it out of the ambit of the trade income. It was observed that in any business one would necessarily have to employ subordinates to carry on the business. If owing to the negligence of dishonesty of any subordinate, some of the receipts of the business do not find their way or some of the bills are not collected or some such similar acts are performed which may be an expense connected with or arising out of the trade, it would be "a trade income" in its true sense. However, where the earnings of a Company are duly credited to the accounts of the Company and thereafter the assets/ money of the Company are taken out by the Managing Director dehors the trade all together by v....