Rajinder Singh Dutt v. Suman Kochhar

Judgment

1. The court of learned Principal District Judge, Jammu has come up making a purported reference to this Court supposedly acting under section 113 read with Order XLVI (46) of the Code of Civil Procedure, 1908 for seeking an answer from this Court.

2. The reason why this Court is addressing the reference of the learned Principal District Judge, Jammu to be a purported reference supposedly made under section 113 read with Order XLVI (46) of the Code of Civil Procedure, 1908 is because the learned Principal District Judge, in his reference order dated

03.05.2023, has not mentioned as to under which provision of 2 Ref.(c) No. 1/2023 law the case has been submitted to the High Court of Jammu & Kashmir and Ladakh with question as framed.

3. Be that as it may, before this Court undertakes the examination of the purported reference, the backdrop in which the Court of learned Principal District Judge, Jammu led itself to come up sending the case upwards needs to be set out.

4. The purported reference has emanated from a civil suit filed by the plaintiff-Rajinder Singh Dutt against the sole defendant Suman Kochhar on 01.08.2022 thereby seeking a money decree for Rs. 4,75,000/- with pendente lite and future interest.

5. The civil suit, upon being originally instituted before the court of learned Principal District Judge, Jammu, came to be transferred for trial to the court of learned 1st Additional District Judge, Jammu on its file No. JKJM02001712/2022.

6. The court of learned 1st Additional District Judge, Jammu in turn, by virtue of an order dated 02.08.2022, came to return the plaint to the court of learned Principal District Judge, Jammu proceeding on a premise that in view of the Commercial Courts Act, 2015 read with Statutory Order S.O. 47 dated 04.02.2020 issued by the Government of Jammu and Kashmir designating the court of learned Additional District Judge (Bank Cases), Jammu as being the commercial court for district Jammu, the suit is required to be heard and tried 3 Ref.(c) No. 1/2023 by the constituted commercial court by force of mandate of section 15 of the Commercial Courts Act, 2015.

7. The court of learned Principal District Judge, Jammu, as being the principal civil court of original jurisdiction, by virtue of an order dated 10.08.2022 on file No. 6058/501/2022, came to order transfer of the suit file to the court of learned Additional District Judge (Bank Cases), Jammu, as being the constituted commercial court meant to undertake the trial of said suit purportedly bearing a commercial dispute. Accordingly, the file of the suit came to be transferred to the court of learned Additional District Judge (Bank Cases), Jammu as being the commercial court.

8. The court of learned Additional District Judge (Bank Cases), Jammu, as being the commercial court, at its end came up with an order dated 25.04.2023 based upon a perusal of the plaint to hold that the cause of action constituting the subject matter of the civil suit is not sourced in a commercial transaction so as to be a commercial dispute but, in fact, is a purported friendly loan transaction rendering the suit not of a commercial dispute nature and, therefore, not to be tried by it as being a commercial court. Accordingly, the suit file came to be returned to the court of learned Principal District Judge, Jammu for an appropriate order and assignment. 4 Ref.(c) No. 1/2023

9. It is in the aforesaid backdrop that the court of learned Principal District Judge, Jammu, vide its order dated

03.05.2023, came forward generating the purported reference finding itself caught between the opposing take of two courts i.e., court of learned 1st Additional District Judge, Jammu

where the suit came to be first transferred and the court of learned Additional District Judge (Bank Cases), Jammu, as being the commercial court, where the suit came to be later transferred only to be returned back.

10. The Court of learned Principal District Judge, Jammu reckoned itself, by observing so in its order dated 03.05.2023, to be having no supervisory or appellate jurisdiction/power to decide as to whether the suit falls within the ambit of the Commercial Courts Act, 2015 or otherwise and, thus, felt inclined to seek guidance/opinion of this Court by purported reference with a question generated ―As to whether the suit is covered under the Commercial Courts Act, 2015 or otherwise.‖

11. It is the aforesaid perspective in which this Court is to consider as to whether, at first instance, the purported reference was warranted or not in terms of scope of section 113 read with Order XLVI (46) of the Code of Civil Procedure, 1908 and then to examine and serve an answer to the question posed. 5 Ref.(c) No. 1/2023

12. The makeup of the Code of Civil Procedure, 1908 is that it has sections which substantive nature compartmentalized into parts.

13. Section 113 of the Code of Civil Procedure, 1908 obtains in Part-VIII of the Code of Civil Procedure, 1908.

14. There are then Orders, fifty five in numbers, all figuring in the First Schedule. Orders I to LI are purely procedural oriented in the Code of Civil Procedure, 1908 and are all figuring in the First Schedule and are subject to annulment or alteration in terms of sections 121 to 131 of Part X.

15. There are then Appendices provided at the end of the Code of Civil Procedure, 1908.

16. What is provided in the First Schedule, in fact, are the Rules arranged in the form of Orders I to LI and all correspondingly sourced to sections 1 to 158.

17. To put it in simple words, there is no Order in the First Schedule which has no corresponding feeding Section actually providing for given Order figuring in the First Schedule of the Code of Civil Procedure, 1908. Orders are, thus, amplifications of Sections in terms of adjudicatory process and scheme envisaged under and in the Code of Civil Procedure,

18. Section 113 of the Code of Civil Procedure, 1908 reads as under: 6 Ref.(c) No. 1/2023 ―Section 113 - Reference to High Court. Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit: Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore, and refer the same for the opinion of the High Court.‖

19. Very opening of section 113 of the Code of Civil Procedure, 1908 is that ―Subject to such conditions and limitations as may be prescribed, any court may state a case and refer the same for the opinion of the High Court…..‖

20. The “conditions and limitations” so referred in section 113 are the ones as prescribed in Order XLVI of the Code of Civil Procedure, 1908.

21. Order XLVI rule 1 of the Code of Civil Procedure, 1908 bears and hedges the conditions and limitations within which a reference of a case is supposed to take place from a civil court to the High Court.

22. So, with respect to „Reference‟ under the Code of Civil Procedure, 1908, this Court is driven to Order XLVI (46) to come across with the conditions and limitations under which a 7 Ref.(c) No. 1/2023 reference as envisaged under section 113 of the Code of Civil Procedure, 1908 is supposed to take place. For the facility of reference, Order XLVI (46) Rule 1 of the Code of Civil Procedure, 1908 is reproduced as under: ―Reference of question to High Court: Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court.‖

23. From a bare reading of Order XLVI (46) Rule 1 of the Code of Civil Procedure, 1908, there are three scenarios which are forthcoming in which a reference is supposed to take place. First scenario is in a pending suit, second scenario is in a pending appeal and third is in the course of execution of a decree. In this regard, reference is made to a full bench judgment of the High Court of Patna in the case of “Banarsi Yadav Vs. Krishna Chandra Dass‖ [1972 AIR (Pat) 49].

24. In the present case, scenario first is involved as in relation to a suit the purported reference has been generated.

25. A reading of Order XLVI (46) Rule 1 of the Code of Civil Procedure, 1908 is a sort of mental teaser in the sense that whether to read expression ―decree is not subject to appeal‖ 8 Ref.(c) No. 1/2023 by reference to civil suit as well or only to an appeal as it is difficult to comprehend as to in which civil suit a decree passed is not subject/amenable to an appeal under section 96 of the Code of Civil Procedure, 1908 other than those excepted therein.

26. Be that as it may, the interpretation of Order XLVI (46) Rule 1 of the Code of Civil Procedure, 1908 has to go in the manner of understanding that only in a civil suit in which a decree to be passed is not amenable to an appeal, then only scope for “reference” is provided for a civil court seized of such like civil suit.

27. First scenario relatable to a civil suit being the one in which a decree to be passed is not subject to any appeal as such in such like suit, scope for reference is reserved with respect to an emerging question of law or usage having the force of law arresting the civil court, in seisin of suit, with a doubt. In order to bail out the civil court out of riddle of question of law or usage so obtaining before it but not meant to be answered by it as there being no appeal provided against a decree to be passed lest a wrong answer by civil court in response to a question of law in such like suit would admit of no remedial correction, scope for reference in such like suit is envisaged.

28. In this regard, judgments in the case of Punjab State Vs. Joginder Nath (1972 HP 108), Antonio Ferreria Martina & 9 Ref.(c) No. 1/2023 anr Vs. Union Territory of Goa, Daman and Diu and ors (1971 AIR Goa, Daman and Diu 31), Behramshaw Hormanshah Bharda & ors Vs. Dastoorji Dr. Hormasdyar Kayoji Mirza and ors (1980 AIR Gujarat 74) and Jeet Mal Vs. Nand Lal [1952 AIR (Raj) 10] are worth reference ready.

29. When this Court bears in mind the legal provision as set out hereinabove and examines the purported reference made by the learned Principal District Judge, Jammu, this Court is hastened to observe and say that there was no enabling scope for the learned Principal District Judge, Jammu to come up with the purported reference at the given stage of the suit as the suit in reference upon being decreed is the one subject to a regular first appeal which incidentally is to be before this very court itself in terms of the Code of Civil Procedure, 1908 read with Civil Courts Act, Svt., 1977. Further, the learned Principal District Judge, Jammu did not record its own opinion on the question formulated which is an essential component of a reference under section 113 read with Order XLVI (46) of the Code of Civil Procedure, 1908.

30. In view of the aforesaid legal position born out of plain reading and understanding of section 113 read with Order XLVI (46) of the Code of Civil Procedure, 1908, the learned Principal District Judge, Jammu made reference is held to be not maintainable. 10 Ref.(c) No. 1/2023

31. Nevertheless, this Court would still examine the issue in exercise of its supervisory jurisdiction under article 227 of the Constitution of India and come up with the decoder to the issue posed so as to ward off repeat of any confusion at the end of the Civil Courts below.

32. This Court would be referring to the nature of the cause of action set up in the civil suit seeking a decree for recovery of Rs. 4,75,000/-. In the plaint, it is expressly pleaded that the plaintiff advanced personal loan to the defendant which upon being unreturned led the plaintiff to sue the defendant for seeking recovery of the principal loan amount along with interest thereupon.

33. Section 9 of the Code of Civil Procedure, 1908 is a source section, as being generative provision, which simply means that every suit of a civil nature is welcome to be triable by a civil court unless its cognizance is expressly or impliedly barred.

34. Unlike the Code of Criminal Procedure, 1973 (now Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023) which not only provided and prescribed procedure for trial of criminal cases but also for the constitution of the criminal courts, the Code of Civil Procedure, 1908, while providing the procedure for adjudication to be operative in the civil courts, in itself does not provide for the constitution of civil courts which aspect is 11 Ref.(c) No. 1/2023 taken care of by the Jammu and Kashmir Civil Courts Act, Svt., 1977 (1920 AD) which continues to be in force in the UT of Jammu & Kashmir and UT of Ladkah under the Jammu and Kashmir Re-organization Act, 2019. It is under the Jammu and Kashmir Civil Courts Act, Svt., 1977 that the creation of the civil courts is drawn from.

35. Under the Jammu and Kashmir Civil Courts Act, Svt., 1977, the High Court is reserved with general superintendence and control over all civil courts, besides being the highest civil court of appeal or revision.

36. Thus, by the force of Jammu and Kashmir Civil Courts Act, Svt., 1977 (1920 AD) and the Code of Civil Procedure, 1908, the status of the High Court of Jammu & Kashmir and Ladakh is being that of highest civil court on appellate, revisional and reference side jurisdiction.

37. It is under the Jammu and Kashmir Civil Courts Act, Svt. 1977 (1920 A.D) that the constitution of Civil Courts and its hierarchy is provided.

38. Section 13 of the Jammu and Kashmir Civil Courts Act, Svt. 1977 (1920 A.D) provides for classes of courts and reads as under:- ―13. Classes of Courts Besides the High Court, the Court of Small causes established under the Small Cause Court Act, and the Courts established under any other enactment for the 12 Ref.(c) No. 1/2023 time being in force, there shall be the following classes of Civil Courts namely:-

1. The Court of the District Judge, also called the District Court;

2. The Court of the Additional Judge; 3. The Court of the subordinate Judge; and 4. The Court of the Munsiff.‖

39. Section 19 of the Jammu and Kashmir Civil Courts Act, Svt. 1977 (1920 A.D) constitutes the District Court to be Principal Civil Court of original jurisdiction in a given district and in terms of Section 20 is vested with jurisdiction in original civil suits without limit as regards the value.

40. Section 21 of the Jammu and Kashmir Civil Courts Act, Svt. 1977 (1920 A.D) provides for pecuniary limits of jurisdiction of courts of Subordinate Judges and Munsiffs and is reproduced as under:-

21. Pecuniary limits of jurisdiction of Subordinate Judges and Munsiffs. (1)The jurisdiction to be exercised in original civil suits as regards the value by any person appointed to be a Subordinate Judge, or Munsiff, shall, be determined, by the High Court either by including him in a class or grade, or otherwise as it thinks fit. (2)The jurisdiction in the case of a Subordinate Judge may be without limit, but in the case of a Munsiff shall not extend value of which exceeds [fifteen thousand rupees]: Provided that the High Court [may] direct by notification in the Government Gazette with respect to any Munsiff named therein that his jurisdiction shall extend to suits 13 Ref.(c) No. 1/2023 of such value not exceeding [Twenty-five thousand rupees] as may be specified in the notification.

41. What is common in sections 20 and 21 of the Jammu and Kashmir Civil Courts Act, Svt. 1977 (1920 A.D), in terms of jurisdiction of the Courts of Principal District Judge as well as of Subordinate Judges and Munsiffs is the expression „value‘. Obviously, the expression ‗value‘ means and relates to ‗value of the civil suit‘.

42. Section 15 of the Code of Civil Procedure, 1908 provides that every civil suit to be instituted in the court of the lowest grade competent to try. Section 15 of the Code of Civil Procedure, 1908 bears an inherent interplay of value of the civil suit for the purpose of picking up the court of the lowest grade competent to try out of three tiers of courts provided under the Jammu and Kashmir Civil Courts Act, Svt. 1977 (1920 A.D).

43. Section 21 of the Code of Civil Procedure, 1908 provides for institution of suit which is to take place by the presentation of plaint or in such other manner as may be prescribed.

44. With respect to plaint, Order 7 of the Code of Civil Procedure, 1908 comes into play wherein Rule 1 provides particulars to be contained in plaint and in this regard Order 7 Rule 1(i) warrants a plaint to bear a statement of the value of the subject matter of the suit for purposes of jurisdiction and court fees. 14 Ref.(c) No. 1/2023

45. A civil suit, filed by reference to section 9 of the Code of Civil Procedure, 1908, perforce is to have a valuation element attending it in the context of section 15 of the Code of Civil Procedure, 1908 read with Court Fees Act, 1870 read with Suits Valuation Act, 1887 and also section 6 and Order 7 Rule 1 (i) of the Code of Civil Procedure, 1908 being involved in interplay.

46. Section 15 of the Code of Civil Procedure, 1908 reads as under: ―15. Court in which suits to be instituted:-Every suit shall be instituted in the Court of the lowest grade competent to try it.

47. Section 15 of the Code of Civil Procedure, 1908 is to be read correspondingly with section 6 of the Code of Civil Procedure, 1908, which reads as under: ―6. Pecuniary jurisdiction.- Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.‖

48. Court Fees Act, 1870 is meant and relatable as to how much court fees is to be payable in terms of the valuation of a given civil suit so as to secure revenue for the benefit of the State as was held in “Rachappa Subrao Jadhav Desai Vs. Shidappa Venkatrao Jadhav Desai‖ (1918 PC 188). 15 Ref.(c) No. 1/2023

49. Section 6 of the Court Fees Act, 1870 provides as under: ―6. Fees on documents filed etc., in Mufassal Courts or in Public Offices. (1) Except in the Courts hereinbefore mentioned, no document of any kinds specified as chargeable in the First or Second Schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document.‖

50. Plaint is one of such documents, which is specified in Schedule (I) and (II) of the Court Fees Act, 1870, which is meant to bear court fees as prescribed in Schedule (I) or in Schedule (II).

51. Without payment of the requisite court fees, a civil suit, even if instituted and entertained by a given civil court, is meant to be rejected in terms of Order VII Rule 11 of the Code of Civil Procedure, 1908 unless and until the unpaid or deficit court fees, otherwise payable, is made good by a litigant in the role of a plaintiff/appellant qua a given suit/appeal.

52. Suits Valuation Act, 1887, on the other hand, determines as to which tier of civil court out of three tiers i.e., Munsiff, Sub Judge and District Court is competent to entertain an instituted suit, bearing requisite court fees valuation, in terms 16 Ref.(c) No. 1/2023 of sections 20 and 21 of the Jammu and Kashmir Civil Courts Act, Svt., 1977.

53. In terms of sections 3, 4 and 8 of the Suits Valuation Act, 1887 determination of jurisdictional value with respect to the subject matter of the civil suit is provided bearing a co-relation with the Court Fees Act, 1870.

54. Sections 20 and 21 of the Jammu and Kashmir Civil Courts Act, Svt., 1977 are reproduced herein under: ―20. Original jurisdiction of District Judge in suits.–– Except as otherwise provided by any enactment for the time being in force, the Court of the District Judge shall have jurisdiction in original civil suits without limit as regards the value.

21. Pecuniary limits of jurisdiction of Subordinate Judges and Munsiffs. –– (1) The jurisdiction to be exercised in original civil suits as regards the value by any person appointed to be a Subordinate Judge, or Munsiff, shall, be determined, by the High Court either by including him in a class or grade, or otherwise as it thinks fit. (2) The jurisdiction in the case of a Subordinate Judge may be without limit, but in the case of a Munsiff shall not extend to suits the value of which exceeds [fifteen] thousand rupees : Provided that [ * * * ] the High Court [may] direct by notification in the Government Gazette with respect to any Munsiff named therein that his jurisdiction shall extend to suits of such value not exceeding [Twenty five thousand rupees] as may be specified in the notification. 17 Ref.(c) No. 1/2023

55. In view of the networking of the aforesaid legal provisions drawn from the Civil Courts Act, Svt. 1977, Civil Procedure Code, 1908, Court Fees Act, 1870 and the Suits Valuation Act, 1887, every civil suit is supposed to bear a pecuniary valuation for purposes of court fees and the suit valuation.

56. In the present case, the suit being for recovery of amount of Rs. 4,75,000/- was meant to be bearing payment of ad valorem court fees in terms of the Court Fees Act, 1870.

57. Now, under the Suits Valuation Act, 1887, the valuation of a suit for the purpose of identification of jurisdiction of the particular tier of the civil court i.e., Munsiff, Sub Judge or District Court for institution of civil suit is attended to and accordingly particular tier of civil court, co-relating with jurisdictional value of the civil suit, is to be opted for the institution of the suit.

58. Section 8 of the Suits Valuation Act, 1887 provides that where in the suits, other than those referred to in the Court Fees Act, 1870 in terms of its section 7, paragraphs v, vi and ix and paragraph x, clause (d), the court fee is payable ad valorem under the Court Fees Act, 1870, then the valuation as determinable for the computation of court fees and for purposes of jurisdiction of civil court shall be the same so that pecuniary value remains constant for court fees purposes under the Court Fees Act, 1870 so as to tag with it the 18 Ref.(c) No. 1/2023 jurisdictional value of the civil court under the Suits Valuation Act, 1887.

59. Section 8 of the Suits Valuation Act, 1887 is reproduced herein for facility of reference: ―8. Court fee value and jurisdictional value to be the same in certain suits-Wherein suits other than those referred to in the Court-fees Act, 1870, Section 7, paragraphs v, vi and ix, clause (d), court fees are payable ad valorem under the Court fees Act, 1870, the value as determinable for the computation of court fees and value for purposes of jurisdiction shall be the same.‖

60. Accordingly, in the present case, the suit valuation under Court Fees Act, 1870 being under section 7(i), whereupon ad valorem court is payable for money claim of Rs. 4,75,000/-, as such the valuation of the suit under the Suits Valuation Act, 1887 in terms of Section 8 is also meant to be same and that is how the suit filed by the plaintiff was not within the pecuniary limits of the first two tiers of the civil courts i.e., Munsiff and Sub Judge, as such the suit came to be filed, in terms of section 20 of the Civil Courts Act, Svt. 1977, before the court of learned Principal District Judge, Jammu coinciding with its pecuniary jurisdiction.

61. In terms of Section 29 of the Jammu and Kashmir Civil Courts Act, Svt., 1977, the Court of learned Principal District Judge, Jammu transferred the civil suit in reference filed by the 19 Ref.(c) No. 1/2023 plaintiff to the co-ordinate court of learned 1st Additional District Judge, Jammu for the purpose of adjudication of the suit.

62. The court of learned 1st Additional District Judge, Jammu, while drawing up order dated 02.08.2022, acted in motion by making a generalized and cursory reference and reading of the Commercial Courts Act, 2015 and rushed to view that the suit being a suit for recovery of Rs. 4,75,000/- and there being a commercial courts constituted by the Government of Jammu and Kashmir vide notification S.O 47 dated 4th of February, 2020 having pecuniary jurisdiction to entertain suit for more than rupees three lacs valuation, as such, the suit is to be triable by the constituted commercial court.

63. In a sense, the court of learned 1st Additional District Judge, Jammu went by the pecuniary value reference of the civil suit and fell in confusion on account of specified value of the suit of the plaintiff being Rs. 4,75,000/-.

64. Commercial Courts Act, 2015 has the Statement of Objects and Reasons in the operating background of which the Union Parliament conceived of enacting the Commercial Courts Act, 2015 which being bearing in perspective a clear cut understanding of commercial disputes involving complex facts and questions of law needing an independent mechanism for early resolution under the Indian Legal System to create a 20 Ref.(c) No. 1/2023 positive image to the Investors‟ World about the independent and responsive Indian Legal System.

65. The word „Suit‟ is a genus whereas its kinds are species as some of get identified in various articles obtaining in the Schedule to the Limitation Act, 1963.

66. As observed already, section 9 of the Code of Civil Procedure, 1908 caters to suits of civil nature of all descriptions, be it known kind or first of its kind, for adjudication purposes unless and until the adjudication of a given nature of a civil suit by the civil court gets barred expressly or impliedly by a separately enacted law so as to take away the adjudication of such like civil suit away from the domain of civil courts operating under the umbrella of the Civil Procedure Code,

1908..

67. Commercial Courts Act, 2015 is one of such exclusionary laws which has reckoned species of civil suits to be of nature of commercial disputes as identified in section 2(1)(c) which is reproduced hereunder: ―Commercial dispute means a dispute arising out of- (i) (ii) (iii) (iv) (v) (vi) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents; export or import of merchandise or services; issues relating to admiralty and maritime law; transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same; carriage of goods; construction and infrastructure contracts, including tenders; 21 Ref.(c) No. 1/2023 (vii) agreements relating to immovable property used exclusively in trade or commerce; distribution and licensing agreements; (viii) franchising agreements; (ix) (x) management and consultancy agreements; (xi) (xii) (xiii) subscription and investment agreements pertaining to the services industry including outsourcing services and financial services; joint venture agreements; shareholders agreements; (xiv) mercantile agency and mercantile usage; (xv) partnership agreements; (xvi) technology development agreements; (xvii) intellectual property registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits; relating rights (xviii) agreements for sale of goods or provision of services; (xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum; insurance and re-insurance; (xx) (xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as may be notified by the Central Government. Explanation.––A commercial dispute shall not cease to be a commercial dispute merely because— (a) it also involves action for recovery of immovable property or for realisation of monies out of immovable property given as security or involves any other relief pertaining to immovable property; (b) one of the contracting parties is the State or any of its agencies or instrumentalities, or a private body carrying out public functions;

68. Clause (xxii) is the residuary clause whereby it is reserved to the Central Government to notify other suits otherwise not mentioned in section 2(1) (c) from clauses (i) to (xxi) bouquet qualifying to be suits of commercial dispute.

69. All the suits relatable to the enlisted disputes in absence of the Commercial Courts Act, 2015 would have been fully cognizable by the civil courts under section 9 of the Code of Civil Procedure, 1908 22 Ref.(c) No. 1/2023

70. In none of the express clauses reckoning from (i) to (xxi), the suit, in the present case, filed by the plaintiff relates to and as such there was no occasion at first instance available with the Court of learned 1st Additional District Judge, Jammu to hold that the suit is a commercial dispute warranting to be pushed towards the commercial court‟s docket.

71. Commercial Courts Act, 2015, no doubt, identifies the commercial disputes forming subject matter of a civil suit in terms of section 2(1)(c) from clauses (i) to (xxi) but to be exclusively cognizable by a commercial court under section 6 of the Commercial Courts Act, 2015, a commercial dispute, forming subject matter of a given civil suit, is also to be of a specified value meaning thereby if it is not falling within the scope of specified value then the civil suit even of a commercial dispute nature as identified under section 2(1)(c) Commercial Courts Act, 2015 is to be triable under section 9 of the Code of Civil Procedure, 1908. This is as simple as it reads and means.

72. Once the plaintiff‟s suit in the present case itself is not a suit of commercial dispute nature, there was no occasion for the court of learned 1st Additional District Judge, Jammu to go just by the specified value reference of the civil suit to be of Rs. 4,75,000/- and transmit the case back to the court of learned Principal District Judge, Jammu for purpose of being assigned 23 Ref.(c) No. 1/2023 to the court of learned Additional District Judge (Bank Cases) Jammu as being the commercial court.

73. This is where an error crept in only to be corrected by none else than by the court of learned Additional District Judge (Bank Cases), Jammu, as being the commercial court, to observe expressly that the subject matter of the civil suit is not of the nature of commercial dispute and is, therefore, not to be assigned to it or to get before it for adjudication and, therefore, warranted its return back to the court of learned Principal District Judge, Jammu which ought to have assigned the suit back to the civil court of learned 1st Additional District Judge, Jammu to go ahead with the adjudication of the civil suit as being an ordinary suit rather than generating a purported reference which otherwise was not there to be so referred within the scope of section 113 of the Code of Civil Procedure,

74. Nature of the subject matter of the civil suit is to be of a commercial dispute as enlisted and identified, whereas the specified value of a civil suit not having the subject matter of commercial dispute is of no significance for a suit to be reckoned as a civil suit with respect to dispute of commercial nature.

75. Hence, the purported reference by the court of learned Principal District Judge, Jammu is held to be misconceived. 24 Ref.(c) No. 1/2023 The order dated 25.04.2023 passed by the court of learned Additional District Judge (Bank Cases), Jammu as being commercial court is held to be correct order in the eyes of law and the suit in reference is to bear its adjudication before the civil court of 1st Additional District Judge, Jammu as was originally assigned to it.

76. Record of the file of civil suit be sent back to the court of learned Principal District Judge, Jammu. JAMMU 08.05.2024 Naresh/Secy. (RAHUL BHARTI) JUDGE Whether order is reportable: Yes/No Whether order is speaking: Yes/No ….