TaxTMI 
TaxTMI 
TaxTMI 
2023 (3) TMI 1606
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....% per annum on the outstanding sum of INR 5,31,13,360/ - [Indian Rupees Five Crores Thirty One Lakhs Thirteen Thousand Three Hundred and Sixty]." CASE OF THE PLAINTIFF 2. It is the case of the plaintiff that the plaintiff is engaged in the business of Real Estate Development and Construction. The plaintiff has known the defendant for several years as the defendant is also engaged in the business of Real Estate. The parties entered into a congenial formal relationship. Sometime in the month of August 2016, the defendant approached the plaintiff and requested him for financial assistance to tide over his financial distress. The defendant promised the plaintiff to return the loan within a short period of time along with interest, on the assurance that he has various prospective business opportunities maturing soon which will enable him to repay the entire loan amount with interest. Based on such assurances, the plaintiff lent a sum of Rs. 4,30,00,000/- (Rupees Four Crores Thirty Lakhs only) to the defendant in August, 2016. The defendant assured and promised the plaintiff that he would repay the said loan amount along with an interest of Rs. 20 Lakhs within a period of eight mon....
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....ngh Kohli Vs Pankaj Dayal‖ having CC. No. 7717/2017, No. 7719/2017 and No. 7720/2017, which are pending adjudication before the learned Metropolitan Magistrate, Saket District Court (South), New Delhi. The plaintiff claims that in such proceedings, the defendant has admitted his signature on the cheques as also on the Loan Agreement. 6. The plaintiff further claims that on 18.07.2017 and 25.10.2017, the defendant transferred a sum of Rs.2 Lakhs and Rs.7 Lakhs respectively through RTGS to the plaintiff. As the defendant refused to pay the balance amount, the plaintiff filed the present suit claiming recovery of Rs. 5,31,13,360/- along with pendente-lite interest and future interest. 7. The plaintiff, in the plaint, further pleads that for arranging the money to be given on loan to the defendant, the plaintiff had requested his father, Mr. Manjeet Singh Kohli, to assist him and aid him in raising a sum of Rs. 2,50,00,000/ (Rupees Two Crores Fifty Lakhs only)-. The said amount was raised by the plaintiff's father by availing a loan from his brother- Mr. Davinder Singh Kohli on providing the property bearing no. E-7, Green Park, Third Floor with terrace, New Delhi-110016 as....
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....t in the complaint cases filed under Section 138 of the NI Act, the plaintiff was being cross-examined on the source of the funds for giving the alleged loan to the defendant; at this stage, the plaintiff has fabricated the documents of Memorandum of Equitable Mortgage and the Cancellation Deed. The defendant asserts that the above is evident from the stamp of the Notary Public that are on these documents and also the fact that while the Equitable Mortgage claims to have been executed for a loan of Rs. 2,50,00,000/-, the Cancellation Deed does not mention any such consideration. SUBMISSIONS ON BEHALF OF THE LEARNED COUNSEL FOR THE PLAINTIFF 10. Based on the above pleadings, the learned counsel for the plaintiff submits that the present suit raises a "commercial dispute" within the meaning of Section 2(1)(c)(i) of the Commercial Courts Act, 2015. He submits that both, the plaintiff and the defendant, are engaged in the business of Real Estate Development and Constructions and therefore are a "Merchant". The loan transaction constitutes ordinary transactions of the merchants and, therefore, any claim thereon falls within the ambit of the term "commercial disputes". He further s....
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....ent or probable defence and, therefore, in terms of Order XIIIA of the CPC, the plaintiff is entitled to a Summary Judgment in his favour. He submits that even if this Court reaches a conclusion that the defendant has raised some defence, this would be a fit case where the defendant should be directed to disclose his assets on Oath and to provide adequate security for the satisfaction of the decree that may be passed in favour of the plaintiff. In support he places reliance on Uttam Singh Duggal & Co. Ltd. v. Union Bank of India & Ors., MANU/SC/0485/2000; Rahul S. Shah v. Jinendra Kumar Gandhi & Ors., (2021) 6 SCC 418; and IDBI Trusteeship Services Ltd. v. Hubtown Ltd.,(2017) 1 SCC 568. SUBMISSIONS ON BEHALF OF THE LEARNED COUNSEL FOR THE DEFENDANT 15. On the other hand, the learned counsel for the defendant, placing reliance on the judgment of this Court in Kailash Devi Khanna and Ors v. DD Global Capital Ltd. and Ors., 2019 SCC OnLine Del 9954; and the judgment of the High Court of Calcutta in Ladymoon Towers Private Limited v. Mahendra Investment Advisors Private Limited, MANU/WB/0547/2021; and of the High Court of Bombay in Glasswood Realty Pvt. Ltd. & Ors. V. Chandravila....
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....mmercial dispute" means a dispute arising out of- (i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;" 21. A reading of the above provision would show that a dispute relating to mercantile documents, including enforcement and interpretation of such documents, arising out of ordinary transactions of merchants, bankers, financiers and traders, shall fall within the definition of "commercial dispute". 22. In Ambalal Sarabhai Enterprises Limited v. K.S. Infraspace LLP and Another, (2020) 15 SCC 585, the Supreme Court observed that the question of whether the suit falls within the scope of a "commercial dispute", as defined under the Commercial Courts Act, cannot be dealt with in abstract. Instead, the nature of the dispute and the jurisdiction to try the same is to be reflected in the suit itself, since in a civil suit, the pleadings, namely, averments in the plaint would, at the outset, be relevant to confer jurisdiction. It was further held that the very purpose for which the Commercial Courts Act has been enacted is to expedite the adjudicato....
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.... dispute. The authorities that the parties have cited on this subject therefore need not be discussed at length. Since the Court has held that, the disputes between the parties are commercial disputes within the meaning of section 2(1)(c)(i) of the Act of 2015, the question whether, the definition of service as envisaged under the Consumer Protection Act, 1986 for the Goods and Services Tax Act as introduced by the Finance Act, 1994 need not be discussed. The authorities cited at the bar by the parties on such score also need not be discussed as being irrelevant, in the facts and circumstances of the present case. 24. In Padma Logistic & Khanij Pvt. Ltd., (supra), another learned Single Judge of the Calcutta High Court, again, in relation to a transaction of loan, has observed as under:- "12. I do not find merit in the argument of the respondent, that this is not a "commercial dispute" within the meaning of the Commercial Courts Act, 2015. On the contrary, I am of the view that this is a classic commercial dispute which falls within the ambit of Section 2(c)(i) of the Commercial Courts Act, 2015 read with Explanation (a) of Section 2(c) of the Act. The case cited by the....
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....st and, therefore, was not a "friendly loan". The present suit has, therefore, been rightly filed by the plaintiff as raising a "commercial dispute". 27. In Kailash Devi Khanna (supra), a learned Single Judge of this Court has rightly held that all suits for recovery of monies cannot fall under Section 2(1)(c)(i) of the Commercial Courts Act; where the suit is not based on any transaction relating to Mercantile Document, such suit cannot be considered as a suit raising a "commercial dispute". As noted hereinabove, such is not the case in the present suit. 28. In Ladymoon Towers Pvt. Ltd. (supra); and Glasswood Realty Pvt. & Ors. (supra), the High Court of Calcutta and the High Court of Bombay respectively were considering suits where the plaintiff had admitted to have extended a "friendly loan" to the defendant therein. Therefore, the said judgments cannot come to the aid of the defendant inasmuch as, in the present case, the alleged loan transaction is not only supported by Mercantile Documents, but as per the plaintiff, also carried interest, which would be an antithesis to a "friendly loan". 29. I, therefore, find no merit in the objection of the defendant that the pres....
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.... Court makes any of the orders as set forth in sub-rule (1) (a) to (f), the Court shall record its reasons for making such order. 7. Conditional order.-(1) Where it appears to the Court that it is possible that a claim or defence may succeed but it is improbable that it shall do so, the Court may make a conditional order as set forth in Rule 6 (1) (b). (2) Where the Court makes a conditional order, it may:- (a) make it subject to all or any of the following conditions:- (i) require a party to deposit a sum of money in the Court; (ii) require a party to take a specified step in relation to the claim or defence, as the case may be; (iii) require a party, as the case may be, to give such security or provide such surety for restitution of costs as the Court deems fit and proper; (iv) impose such other conditions, including providing security for restitution of losses that any party is likely to suffer during the pendency of the suit, as the Court may deem fit in its discretion; and (b) specify the consequences of the failure to comply with the conditional order, including passing a judgment against the party that h....
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....t shut out by unduly severe orders as to deposit or security. 17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires. 17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith. 17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court. 33. In Uttam Singh Dugal (supra), the Supreme Court held that the object of Order XII Rule 6 of the CPC is to enable a party to obtain a speedy judg....
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....8.2016 and the Deed of Cancellation dated 11.10.2017, based on the Stamp of the Notary that these documents bear and the very nature of the transaction, wherein, again the amount is supposed to have been extended in cash by the uncle of the plaintiff to the father of the plaintiff, and thereafter, the Equitable Mortgage cancelled without mentioning any return of the said loan. The documents bear the stamp of the Notary, which on one page gives the expiry date of his license as 03.06.2019, while on the other page gives date of expiry of license as 03.06.2024; f) Though, the learned counsel for the plaintiff is correct in his submission that a presumption under Section 118 read with Section 139 of the NI Act would arise of the cheques been issued for valid consideration, the same is rebuttable. In Kalamani Tex (supra), the Supreme Court held that a probable defence needs to be raised, which must meet the standard of "preponderance of probability", and not mere possibility; a bare denial of passing of consideration would not aid the defendant. The stage of substantiating the defence, however, is yet to arrive in the present case; g) What is also important is that the....