M.R.SHAH, J. - (1.) Feeling aggrieved and dissatisfied with the impugned order passed by the learned Judge, Commercial Court, Vadodara below Exh. 17 in Commercial Civil Suit No. 294/2016 by which in exercise of power under Order 7, Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") the learned Judge, Commercial Court has returned the plaint to the original plaintiff to present it before appropriate Court having jurisdiction, the original plaintiff has preferred the present Appeal From Order.
(2.) The facts leading to the present Appeal From Order in nut-shell are as under: 2.1 That the appellant herein - original plaintiff (hereinafter referred to as "original plaintiff") instituted a Commercial Civil Suit No.294/2016 in the Court of learned Judge, Commercial Court, Vadodara (hereinafter referred to as "learned Commercial Court") for specific performance of the contract and in the alternative for recovery of damages and for refund of part payment, declaration and permanent injunction. 2.2 It was the case on behalf of the original plaintiff that the State Government allotted the land in question and entered into an agreement with the respondent No.1 herein-original defendant No.1 (hereinafter referred to as "original defendant No.1") to develop Akruti Gujarat Biotech, Phase-II, at Savli, GIDC Estate, Vadodara. A contract was entered into between the State Government and original defendant No.1. It was the case on behalf of the original plaintiff that the original defendant No.1 thereafter was requried to develop the land for Biotech Park. That the original plaintiff invested huge sum and entered into the contract with the original defendant No.1. It was the case on behalf of the original plaintiff that for number of years nothing was done and the plots which were allotted to the original defendant No.1 were not developed and therefore, the original plaintiff instituted the aforesaid suit before the learned Commercial Court for the following reliefs. "(a) The decree for specific performance/enforcement of the subject contract i.e. SC may kindly be pleased in favour of the plaintiffs as against the defendants and consequentially the defendants may kindly be ordered and directed/mandated to execute the transfer deed/deed of conveyance through execution of lease deed/assignment deed of lease in favour of the plaintiff in respect of the subject property in furtherance of the subject contract i.e. SC and consequentially the subject contract i.e. SC may kindly be ordered to be specifically performed/enforced in favor of the plaintiff and thereby the entire process/formality to effecuate the transfer of the absolute leasehold rights in respect of the subject property may kindly be ordered and directed to be caused by through defendants in favour of the plaintiff and/or alternatively and independently the amount of Rs. 10,75,12,196 as specified and detailed by the plaintiff in the plaint may kindly be awarded as compensation in addition to and/or independent to the relief of specific performance of the subject contract; (b) it may kindly be declared that the defendants have committed breach and/or default in completing the performance and fulfillment of their contractual obligations as per SC in respect of the subject property; (c) the defendants, their agents, employees, representatives, assignees, transferres and every person claiming for and on behalf of them may kindly be permanently restrained from causing any act, things or deed either threatening and/or invading or in any capable to cause destruction, obstacle, obstruction to and against the plaintiffs' proprietary and legal rights in the subject property in any manner whatsoever; (d) the defendants, their agents, employees, representatives, assignees, transferres and every person claiming for and on behalf of them may kindly be permanently restrained from causing, executing, creating any document, transaction, paper in respect of the subject property in favor of any person and amounting to alienation of rights or possession of the subject property in nay manner whatsoever and they be further restrained from doing any acts, deeds or things adverse and/or contrary to the proprietary rights of the plaintiff in the subject property by virtue of SC; (e) the defendants, their agents, employees, representatives, assignees, transferres and every person claiming for and on behalf of them may kindly be permanently restrained from alienating, transferring or creating any right, interest or claim in favor of any person by virtue of any transaction of any nature whatsoever and in any manner whatsoever and accordingly they be restrained from doing anything in respect of the subject property capable to change or cause any adverse effect on the status, condition, situation and/or potency to achieve completed and specific performance of the SC as executed in respect of the subject property in any manner whatsoever; (f) That alternatively/simultaneously in coextension to the relief for specific performance of SC as prayed for vide prayer clause No.24(a) the decree for the recovery of Rs. 10,75,12,196/- (Rupees Ten Crores Seventy fix Lacs Twelve Thousand One Hundred Ninety Six Only) may kindly be passed against the defendants and in favor of the plaintiff and consequentially the defendants may kindly be ordered and directed to pay and remit the amount of Rs. 10,75,12,196/- (Rupees Ten Crores Seventy fix Lacs Twelve Thousand One Hundred Ninety Six Only) in favour of the plaintiff; (g) the defendant may kindly be ordered and/or directed to pay the amount of interest @ 24% per annum on the total amount of compensation as claimed vide prayer clause No.24-(f) from the date of filing of present suit till the realization of the total amount as claimed by plaintiff in the present suit;" 2.3 That it was the case on behalf of the original plaintiff that as the dispute between the parties is a "commercial dispute" as per Section 2(c) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as "Commercial Courts Act") and the amount involved is above Rs.1 Crore, invoking jurisdiction of the learned Commercial Court, Vadodara, the original pleaded in para 22 of the plaint as under: "22. The present suit is filed for the purposes of humbly seeking specific performance of the subject contract and thereby to get the SC fully fulfilled and to ensure the consequential transfer of SP in specific performance of SC as sought for to be fully, performed in favour of the plaintiff and to comply with the obligations of express provisions of Specific Relief Act, the plaintiff has humbly sought the recovery of the amount of the compensation in respect of the loss caused to the plaintiff and the damage as suffered by plaintiff at Vadodara and the written contract i.e. SC is executed between the parties hereto in respect of SP which is situated/located at and within the District of Vadodara and thereby the cause and contractual privity based upon which the present suit for specific performance and coextensive compensation is sought for by the plaintiff based upon the SC which is formulated in respect of SP which is existing within the territorial jurisdiction of this Honourable Court and because the breach/refusal of the SC is communicated to the plaintiff at Vadodara and thereby the cause to seek specific performance emerging from out of refusal communicated by defendant for the first ever time vide their letter dated 13.05.2016 has thereby arisen within the territorial jurisdiction of this Honourable Court and therefore the cause of action has arisen within the jurisdiction of this Honoourable Court and this Hon'ble Court is comprehensively having wholesome statutory, pecuniary and territorial jurisdiction to entertain and try the present suit." 2.4 Having been served with the notice of the summons of the suit, the original defendant No.1 appeared before the learned Commercial Court and thereafter filed the application Exh.17 for returning the plaint to the original plaintiff in exercise of powers under Order 7, Rule 10 of the CPC and to return the plaint to the original plaintiff to present it before the appropriate Court having jurisdiction. It was the case on behalf of the original defendant No.1 that the dispute between the parties cannot be said to be commercial dispute within the definition of section 2(c) of the Commercial Courts Act and therefore, the suit before the learned Commercial Court is not maintainable and/or the learned Commercial Court would not have any jurisdiction to entertain the suit for the reliefs prayed in the suit. 2.5 The application Exh.17 was vehemently opposed by the original plaintiff. Relying upon clause 2(c)(i), 2(c)(ii) and 2(c)(xx) of the Commercial Courts Act, it was submitted that for the reliefs claimed in the suit, the dispute can be said to be commercial dispute within the definition of section 2(c) of the Commercial Courts Act and therefore, the suit before the learned Commercial Court would be maintainable. 2.6 That by impugned order the learned Commercial Court has allowed the application Exh.17 and has returned the plaint to the original plaintiff to present it before appropriate Court having jurisdiction by observing and holding that for the reliefs sought in the plaint/suit, the Commercial Court would not have any jurisdiction and/or suit before the Commercial Court would not be maintainable. 2.7 Feeling aggrieved and dissatisfied with the impugned order passed by the learned Commercial Court below Exh.17 in Commercial Civil Suit No.294/2016, the original plaintiff has preferred the present Appeal From Order.
(3.) Shri Shalin Mehta, learned Senior Advocate has appeared with Shri S.P. Majmudar, learned Advocate appearing on behalf of the appellant herein - original plaintiff and Shri Salil Thakore, learned Advocate has appeared on behalf of respondent No.1 herein - original defendant No.1, who is on caveat.;