Aase Ram v. Amit Kumar), by which the application
Case Details
Neutral Citation No. - 2024:AHC:159275 Reserved Court No. - 35
Legal Reasoning
Case :- FIRST APPEAL No. - 278 of 2024 Appellant :- Aase Ram Respondent :- Amit Kumar Counsel for Appellant :- Amitabh Agarwal Connected with Case :- FIRST APPEAL FROM ORDER No. - 364 of 2024 Appellant :- Aase Ram Respondent :- Amit Kumar Counsel for Appellant :- Amitabh Agarwal Counsel for Respondent :- Nipun Singh Hon'ble Vipin Chandra Dixit,J. 1) First Appeal No. 278 of 2024 has been filed on behalf of plaintiff-appellant under Section 96 of C.P.C. against the order dated 28.9.2023 passed by Civil Judge(S.D.), Gautam Buddh Nagar in Original Suit No. 449 of 2023( Aase Ram vs. Amit Kumar), by which the application(15-Ga) filed by the defendant under order 7 Rule 11 (d) C.P.C. was allowed and the plaint of plaintiff-appellant was rejected. 2) First Appeal From Order No. 364 of 2024 has been filed by plaintiff-appellant under Order 43 Rule 1(a) C.P.C. against the order dated 28.9.2023 passed by Civil Judge(S.D.), Gautam Buddh Nagar in Original Suit No. 449 of 2023( Aase Ram vs. Amit Kumar), by which the original suit was returned to the plaintiff-appellant under Order 7 Rule 10 of C.P.C. for presentation before the competent Court. 3) Both the aforesaid appeals are arising out of same order dated 28.9.2023 passed in Original Suit No. 449 of 2023, as such are being decided by common order. 4) Heard Sri Amitabh Agarwal, learned counsel for the plaintiff-appellant and Sri Nipun Singh, learned counsel appearing for defendant-respondent and perused the record. 5) Brief facts of the case are that plaintiff had filed suit for permanent injunction restraining the defendant from interfering in running the business of brick Kiln in pursuance of partnership deed dated 25.8.2017. It is further prayed in the suit that defendant may be directed to clear the outstanding dues. The suit was registered as Original Suit No. 449 of 2023. It was pleaded by the plaintiff-appellant that a partnership deed was executed in presence of witnesses in between plaintiff and defendant on 25.8.2017 and it was agreed between the parties that both the plaintiff and defendant shall invest fund in the business and would divide the share in the profit as per their investments. In pursuance of partnership deed, they have started business of brick kiln in the name and style of Amit Brick Kiln situated at village Anandpur, Pargana & Tehsil Dadri, Thana Jarcha, District Gautam Buddh Nagar. It was also pleaded by the plaintiff that defendant had not provided any statement of profit of the business since 2021, despite repeated requests made by the plaintiff. The defendant is creating hindrance in the business and is trying to grab brick kiln. The plaintiff had also moved an application under Order 39 Rule 1 C.P.C. which is paper No. 6Ga2. The trial court after considering the case of plaintiff has allowed the application (Paper 6Ga2) ex-parte vide order dated 24.4.2023 directing the parties to maintain status quo in respect of statement of profit of brick kiln as per terms and conditions of partnership deed dated 25.8.2017. 6) The defendant-respondent after notice, has put in appearance and filed his written statement denying the plaint allegations. It was pleaded that the defendant is exclusive owner of Amit Brick Kiln and is being operated by him. The partnership deed dated 25.8.2017 is a forged document and it was never signed by the defendant. It is further pleaded that the alleged partnership dated 25.8.2017 is unregistered document having no legal value. 7) During the pendency of trial, the defendant-respondent moved an application under Order 7 Rule 10 CPC read with Order 7 Rule 11 CPC on the ground that the suit was filed by the plaintiff for permanent injunction on the basis of partnership agreement dated 25.8.2017. The nature of suit is commercial and only Commercial Court has got jurisdiction to decide the suit and civil Court has no jurisdiction. 8) Learned trial court, after considering the fact that the basis of suit is partnership agreement dated 25.8.2017 and the dispute between the parties is purely of commercial nature, has recorded the finding that the dispute between the parties is of commercial nature which arises on the basis of partnership agreement and as per provision of Section 6 of the Commercial Courts Act, the Commercial Court has got jurisdiction to decide the case. The trial court has further recorded the finding that the suit filed by plaintiff-appellant is barred by Commercial Courts Act, 2015. The trial court has rejected the plaint under Order 7 Rule 11(d) CPC and returned the plaint to the plaintiff for presentation before the competent court. 9) It is submitted by learned counsel for the appellant that the suit filed by plaintiff-appellant for permanent injunction is duly cognizable by civil court and the learned Court below after considering the averments of suit as well as urgency has granted ex-parte interim order in favour of plaintiff-appellant vide order dated 24.4.2023. It is further submitted that once the suit was entertained by the learned trial court, there was no occasion for the learned trial court to return the plaint after lapse of considerable time. Lastly, it is submitted that from bare perusal of plaint, it is evident that learned civil court has got jurisdiction and is competent to decide the suit. 10) On the other hand, learned counsel appearing on behalf of defendant- respondent submits that from bare reading of prayer clause of plaint, it is apparent that there is commercial dispute between the parties and the suit itself was filed on the basis of partnership deed dated 25.8.2017, which proves that the dispute between the parties is commercial in nature and the learned trial court has rightly passed the order impugned rejecting the plaint under Order 7 Rule 11(d) CPC. The trial court has rightly permitted the plaintiff to present the suit before the competent court. The order passed by learned trial court is in accordance with law and there is no illegality in any manner. 11) Considered the submissions of learned counsel for the parties and perused the record. 12) The suit for permanent injunction was filed by plaintiff/appellant restraining the defendant/respondent for operating the brick kiln against the terms and conditions of partnership agreement dated 25.8.2027. The sole basis of suit was partnership agreement dated 25.3.2017. The dispute between the parties was purely commercial dispute and in view of Section 6 of Commercial Courts Act, 1915, only Commercial Court has got jurisdiction to decide the dispute. Section 6 of Commercial Courts Act is reproduced herein below:- "6. Jurisdiction of Commercial Courts. – The Commercial Court shall have jurisdiction to try all suits and applications relating to a commercial dispute of a Specified Value arising out of the entire territory of the State over which it has been vested territorial jurisdiction." 13) The 'commercial dispute' is defined in para 2(1)(c) which is quoted below:- " 2. Definitions-(1) In this Act unless the context otherwise requires.- (a).... (aa)... (b)... (c)"Commercial dispute" means a dispute arising out of- (i) to (xiv)... (xv) "partnership agreements." 14) From bare perusal of definition clause, it is apparent that any dispute on the basis of partnership agreement, is a commercial dispute and in view of Section 6 of Commercial Courts Act, 2015, the Commercial Court has got jurisdiction to try all suits and applications relating to a commercial dispute. 15) Learned trial court after considering the entire materials which are available on record has recorded categorical finding of fact that the basis of suit filed by plaintiff-appellant is a partnership agreement dated 25.8.2017 and the dispute between the parties are purely of commercial nature and only Commercial Court has got jurisdiction to decide the dispute between the parties. The trial court has rightly allowed the application filed by defendant-respondent under Order 7 Rule 11(d) and returned the plaint under Order 7 Rule 10 C.P.C. The order dated 28.9.2023 passed by the trial court is based on materials which are available on record and there is no illegality in any manner. 16) No ground for interference is made out. Both the appeals filed by plaintiff- appellant are devoid of merits and are liable to be dismissed. 17) In view of above, First Appeal No.278 of 2024 and First Appeal From Order No. 364 of 2024 are dismissed accordingly. 18) No order as to cost. Order Date :- 30.9.2024 P.P.