What is a Commercial Suit?
A suit for the redressal of the commercial dispute of specified value/high value is a commercial suit.
What is a commercial dispute?
Commercial dispute is defined in Section 2 (1)(c) of the commercial courts act, 2015.
A dispute relating to immovable property per se may not be a commercial dispute. But it becomes a commercial dispute, if it falls under Sub-clause (vii) of Section 2(1)(c) of the Act viz. "the agreements relating to immovable property used exclusively in trade or commerce". The words "used exclusively in trade or commerce" are to be interpreted purposefully. The word "used" denotes "actually used" and it cannot be either "ready for use" or "likely to be used" or "to be used". It should be "actually used".
Ambalal Sarabhai Enterprises Limited—vs—KS Infraspace LLP and Another, [2020 15 scc 585]
Where is it filed?
It is filed in the Commercial Court.
For a suit to fall under the jurisdiction of the Commercial Court, the following two conditions are to be satisfied;
(i) it shall be a commercial dispute within the meaning of Section 2(1)(c) of the Act; and
(ii) such commercial disputes are of a specified value under the law.
How is it Transferred?
Chapter V, Section 15 of the Commercial Courts Act, 2015 deals with the Transfer of the Pending cases
15. Transfer of pending cases.—
(1) All suits and applications, including applications under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of a Specified Value pending in a High Court where a Commercial Division has been constituted, shall be transferred to the Commercial Division.
(2) All suits and applications, including applications under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of a Specified Value pending in any civil court in any district or area in respect of which a Commercial Court has been constituted, shall be transferred to such Commercial Court:
Provided that no suit or application where the final judgment has been reserved by the Court prior to the constitution of the Commercial Division or the Commercial Court shall be transferred either under sub-section (1) or sub-section (2).
(3) Where any suit or application, including an application under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of Specified Value shall stand transferred to the Commercial Division or Commercial Court under sub-section (1) or sub-section (2), the provisions of this Act shall apply to those procedures that were not complete at the time of transfer.
(4) The Commercial Division or Commercial Court, as the case may be, may hold case management hearings in respect of such transferred suit or application in order to prescribe new timelines or issue such further directions as may be necessary for a speedy and efficacious disposal of such suit or application in accordance [with Order XV-A] of the Code of Civil Procedure, 1908 (5 of 1908):
Provided that the proviso to sub-rule (1) of Rule 1 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to such transferred suit or application and the court may, in its discretion, prescribe a new time period within which the written statement shall be filed.
(5) In the event that such suit or application is not transferred in the manner specified in sub-section (1), sub-section (2) or sub-section (3), the Commercial Appellate Division of the High Court may, on the application of any of the parties to the suit, withdraw such suit or application from the court before which it is pending and transfer the same for trial or disposal to the Commercial Division or Commercial Court, as the case may be, having territorial jurisdiction over such suit, and such order of transfer shall be final and binding.
Sub-section 1, 2 and 3 states that the any suit commercial in nature shall be transferred but how it should be transferred is not provided. Again in subsection 5 of the section 15 it is clearly enumerated that if it is not transferred on an application being made by either of the parties.
Further there very few are judgements on this point, however the below noted two judgements have important points to note:
1. 2022 SCC OnLine Cal 273
Delivered by the DIVISION BENCH comprising of T.S. Sivagnanam and Hiranmay Bhattacharyya, JJ.on February 15, 2022
This Court, however, does not find any substance in the submission of the learned advocate for the respondent that a suit may be transferred to the Commercial Division only upon an application to such effect being filed. Section 15(1) of the 2015 Act casts an obligation upon the High Court to transfer all pending suits and applications relating to a commercial dispute of a specified value to a Commercial Division. Filing of an application is not a precondition for such transfer. It would suffice only if the attention of the Court, before whom a suit is pending, is drawn to the fact that the dispute involved therein is a commercial dispute and the Court upon being satisfied as to the existence of such dispute of a specified value has no other option but to transfer the same to the Commercial Court. Sub-section (5) of Section 15 only comes into play in the event such suit or application is not transferred to the Commercial Division. Thus, the appellants could not be faulted for not filing any application for transfer.
2. 2019 SCC On Line Cal 2346 by Moushumi Bhattacharya, J on September 17, 2019
Section 15(5) provides a window to the suits which have not been transferred under (1), (2) and (3) by putting the onus on any of the parties to make an application as prescribed.
This court is not persuaded to hold that the provisions of section 15(1) and 15(2) (without the proviso) would automatically kick in without the plaintiff taking the required under section 15(5) of The Commercial Courts Act. If the plaintiff did not take the steps for applying before the Commercial Appellate Division of this court, it must be assumed that the suit remained at the stage of pre-transfer at the time when the applications were decided in favour of the defendants.
There are other judgments too on the point and those have to be considered before coming to any conclusion.
Md Danish Taslim, Advocate, High Court at Calcutta.
Arbitration Agreement pursuant to Amicable Family Settlement. Family settlement, Mitakshara School of Hindu Law.
ARBITRATION AGREEMENT Arbitration Agreement pursuant to amicable family settlement. Family settlement, Mitakshara School of Hindu Law. Arbitration Agreements are agreements or clause in a broader contract in which the parties agrees to settle the disputes, if arises, out of court, through arbitration, any dispute as defined that arises with your counterpart. Arbitration agreements are common in commercial contracts, consumer contracts and employment contracts, however, they can be proposed additions to any contract negotiation in which one, both or all parties agrees to settle it out of court. The awards and/or orders passed are binding in law and can be strictly enforced. Arbitration Agreement is rarely found for family settlements. But there are some wise men, who in order to save duties and taxes or otherwise, choose to settle the assets of the family, orally among themselves, and later on after acting upon such amicable settlement among themselves they decide to reduce such ...
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