1. IA No. 5243/2016 (for exemption) in CS(OS) No. 2330/2008 & IA No. 5238/2016 (for exemption) in CS(OS) No. 2331/2008.

Allowed, subject to just exceptions.

2. The applications stand disposed of.

CS(OS) No. 2330/2008, IA No. 19934/2015 (of the plaintiff for direction) & CCP (O) No. 30/2016).

CS(OS) No. 2331/2008, IA No. 19927/2015 (of the plaintiff for direction) & CCP (O) No. 29/2016).

3. Both the suits are for ejectment of the defendant from different parts of the property no.M-1, Hauz Khas, New Delhi.

4. A decree, on admissions, of ejectment has already been passed and in appeals preferred there against, time up to 31st July, 2016 has been given to the defendant to vacate the property. The issue of mesne profits remains for adjudication.

5. Both suits, as per the plaint therein, for the purposes of Court Fees and jurisdiction have a value of less than the enhanced minimum pecuniary jurisdiction of this Court. The suits, in accordance with the Office Order dated 24th November, 2015 of Honble the Chief Justice, issued in exercise of powers under Section 4 of the Delhi High Court (Amendment) Act, 2015, are liable to be transferred to the concerned District Judge.

6. The counsel for the plaintiff however argues that as far as CS(OS) No. 2331/2008 is concerned, though the valuation thereof as per the plaint is less than the enhanced minimum pecuniary jurisdiction of this Court, is a commercial suit within the meaning of The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Commercial Courts Act) and since the specified value, i.e. the market value of the property qua which the relief of ejectment was claimed therein was/is in excess of Rs. 1 crore, the same has to remain in this Court and is not liable to be transferred. Attention in this regard is invited to Section 12 (c) of the Commercial Courts Act prescribing the mode of determination of Specified Value and to Section 21 thereof giving the provisions of the said Act an overriding effect.

7. The contention of the counsel for the plaintiff, though an innovative one, does not find favour with me for the reasons following.

8. Per Section 7 of the Commercial Courts Act, all suits and applications relating to "commercial disputes" of a "specified value" filed in a High Court having ordinary original civil jurisdiction are to be heard and disposed of by the Commercial Division of that High Court.

9. A "commercial dispute" is defined in Section 2(1)(c) of the Act as a dispute arising out of transactions/relationships as described in Clauses (i) to (xxii) thereunder. The only clause on which the plaintiff can perhaps rely and to which the counsel for the plaintiff draws attention is Clause (vii) which is as under:

"(vii) agreements relating to immovable property used exclusively in trade or commerce;"

The explanation to Section 2(1)(c) is as under:

"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;"

10. The term "specified value" is defined in Section 2(1)(i) of the Act as under:

"(i) "specified value", in relation to a commercial dispute, shall mean the value of the subject matter in respect of a suit as determined in accordance with Section 12 which shall not be less than one crore rupees or such higher value, as may be notified by the Central Government."

11. Section 12 of the Commercial Courts Act, as contended by the counsel for the plaintiff, provides for determination of specified value. The same is as under:

"12. Determination of Specified Value. (1) The Specified Value of the subject-matter of the commercial dispute in a suit, appeal or application shall be determined in the following manner:-

(a) where the relief sought in a suit or application is for recovery of money, the money sought to be recovered in the suit or application inclusive of interest, if any, computed up to the date of filing of the suit or application, as the case may be, shall be taken into account for determining such Specified Value;

(b) where the relief sought in a suit, appeal or application relates to movable property or to a right therein, the market value of the movable property as on the date of filing of the suit, appeal or application, as the case may be, shall be taken into account for determining such Specified Value;

(c) where the relief sought in a suit, appeal or application relates to immovable property or to a right therein, the market value of the immovable property, as on the date of filing of the suit, appeal or application, as the case may be, shall be taken into account for determining Specified Value;

(d) where the relief sought in a suit, appeal or application relates to any other intangible right, the market value of the said rights as estimated by the plaintiff shall be taken into account for determining Specified Value; and (e) where the counterclaim is raised in any suit, appeal or application, the value of the subject-matter of the commercial dispute in such counterclaim as on the date of the counterclaim shall be taken into account.

(2) The aggregate value of the claim and counterclaim, if any as set out in the statement of claim and the counterclaim, if any, in an arbitration of a commercial dispute shall be the basis for determining whether such arbitration is subject to the jurisdiction of a Commercial Division, Commercial Appellate Division or Commercial Court, as the case may be.

(3) No appeal or civil revision application under section 115 of the Code of Civil Procedure, 1908, as the case may be, shall lie from an order of a Commercial Division or Commercial Court finding that it has jurisdiction to hear a commercial dispute under this Act."

12. According to the counsel for the plaintiff, since the suit relates to immovable property or to a right therein, the specified value thereof as per Section 12(1)(c) is the market value of the property as on the date of filing of the suit and the market value of the immovable property for recovery of possession of which CS(OS) No. 2331/2008 was filed, as per the circle rates prescribed by the Government of NCT of Delhi (GNCTD), on the date of institution of the suit also was in excess of Rs. 1 crore.

13. As per Section 2(1)(c)(vii) supra, only a dispute arising out of agreements relating to immovable property used exclusively in trade or commerce qualifies as commercial dispute. It is nowhere the plea in the plaint that the property with respect to which the suit is filed is used exclusively in trade or commerce. The plea of the plaintiff in this regard is that "the property user was as per law" and that "in the event that the defendant were to put the suit property to any use that was not normally permitted under law but could be permitted upon payment of applicable charges, the defendant was liable to tender such charges as applicable in respect thereof including any penalties, interest etc. thereon. Since the defendant has been using the suit property as the show room, the applicable charges were to be additionally borne by it". Therefrom it appears that the property No. M-1 is situated in the residential colony of Hauz Khas and not in the Hauz Khas market. I may notice that it is the plea of the defendant in its written statement that the letting out of the property as per the lease deed between the parties was "for storage, exhibition of handicraft items and residence".

14. The plaintiff, without pleading that the transaction from which the dispute subject matter of suit arises, relates to immovable property used exclusively in trade or commerce, cannot seek for the suit to remain in this Court by labelling it as a commercial dispute.

15. I may in this regard also observe that a property, prescribed user whereof as per the law i.e. the Master Plan and the municipal laws is residential, even if let out for use exclusively in trade or commerce or when, without being so let out, is used exclusively in trade or commerce, the same would still not qualify as an immovable property used exclusively in trade or commerce within the meaning of Section 2(1)(c)(vii) of the Commercial Courts Act. The Commercial Courts Act has brought only disputes arising out of transactions relating to immovable property used exclusively in trade or commerce within the ambit of a "commercial dispute". The legislature could not have intended to bring disputes arising out of transactions relating to immovable property illegally used exclusively in trade or commerce within the ambit of commercial disputes. The principle, as enunciated in the context of the provisions in the municipal laws, of determination of rateable value/annual value (for payment of property tax/house tax on the basis of) the rent at which the property can reasonably be expected to let, will be applicable. It has been held that where, under the law i.e. the Rent Acts, the landlord is prohibited from charging from the tenant anything more than the "standard rent" the municipal authority cannot, determine the rateable value/annual value at a rent more than the standard rent, even if the owner/landlord is actually receiving rent more than standard rent. Reference in this regard can be made to Dr. Balbir Singh v. M.C.D. (1985) 1 SCC 167 [LQ/SC/1984/334] . It was held that the owner/landlord could not reasonably expect to get more than the maximum rent permitted in law.

16. Justice G.P. Singh in his "Principles of Statutory Interpretation", 13th Edition in Chapter 5 titled "Subsidiary Rules" and under the head "Construction of General Words" has referred to "Principle of Legality", as the general words of a statute are not to be construed as to alter the previous policy of the law, unless no sense or meaning can be applied to those words consistently with the intention of preserving the previous policy untouched. It is further authored that there are many presumptions which an interpreter is entitled to raise which are not readily displaced merely by use of general words, unless there is the clearest provision to the contrary. The Principle of Legality has also been described as an aspect of the rule of law known both to Parliament and the Courts, upon which statutory language will be interpreted. Similarly, in Chapter 2 titled "Guiding Rules" and under the head "The Rule of Literal Construction" Lord Macnaghten has been quoted as opining that "in construing acts of Parliament", it is a general rule that "words must be taken in their legal sense unless the contrary intention appears."

17. Following the said principles, Section 2(1)(c)(vii) has to be read and interpreted as "immovable property which is in accordance with law, used exclusively in trade or commerce" and not as "immovable property which, in contravention of law, is used exclusively in trade or commerce".

18. Even otherwise, the claim of the plaintiff in the suit, for recovery of possession of immovable property, already stands decreed and the suit as of today or on the date of coming into force of the Commercial Courts Act could not have been said to be for recovery of immovable property. Thus the market value of the property is today not relevant. The suit today survives only for the relief of recovery of arrears of rent and future mesne profits relating to immovable property.

19. Also, though the counsel for the plaintiff has argued that the specified value of the property is more than Rs. 1 crore but has not paid the court fees thereon and court fees has been paid in terms of Section 7(iv) of the Court Fees Act, 1870 as on a suit between the landlord and tenant, for recovery of immovable property from a tenant including a tenant holding over after the determination of tenancy, according to the amount of the rent of the immovable property payable for the year next before the date of presenting the plaint.

20. As per Section 4 of the Suits Valuation Act, 1887, the valuation of a suit for the purpose of jurisdiction is not to exceed the value of the land or interest in land as determined by Section 7(iv) of the Court Fees Act and as per which as aforesaid, the value is according to the amount of the rent payable for the year next before the date of presenting the plaint.

21. It would thus be seen that by a statutory fiction created by Section 7(iv) of the Court Fees Act, the value of the immovable property for the purposes of recovery of possession thereof from a tenant is not its market value but its rental value for the year next before the date of presenting the plaint. The reason therefor is not difficult to understand. The owner/landlord of a immovable property, for the relief of eviction of a tenant paying or who had agreed to pay, not the market value of the property, but rent of the property which may be a miniscule part of the market value of the property, cannot be made to pay ad valorem court fees on the basis of market value of the property.

22. I am unable to agree with the contention of the counsel for the plaintiff that owing to Section 21 of the Commercial Courts Act as under:

"21. Act to have overriding effect. Save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Act." the Court Fees Act and the Suits Valuation Act stand overridden or superceded.

23. The Commercial Courts Act has not been enacted to interfere with the Courts Fees Act or the Suits Valuation Act. It is a settled principle of law that the provisions such as Section 21 supra have to be read and interpreted by finding out the extent to which the legislature intended to give it a overriding effect and the context in which such a provision is made and on a consideration of purpose and policy underlying the enactment. It is also relevant to consider whether the conflicting enactment can be described as a special one and in which case the special one may prevail over the more general one, notwithstanding that the general one is later in time.

24. Supreme Court, in A.G. Varadarajulu v. State of T.N. (1998) 4 SCC 231 , [LQ/SC/1998/359] while dealing with a non-obstante clause under which the legislature wants to give overriding effect to a section held that the Court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. It was reiterated that the non-obstante clause, no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but when the section containing the said clause does not refer to any particular provision which it intends to override but refers to the provisions of statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. Similarly, in Central Bank of India v. State of Kerala (2009) 4 SCC 94 , [LQ/SC/2009/460] in the context of non-obstante clauses in Section 34(1) of the Recovery of Debts Due To Banks and Financial Institutions Act, 1993 (DRT Act) and Section 35 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI ACT), giving overriding effect to the provisions of those statutes, it was held that they had overriding effect only if there was anything inconsistent in any other law or instrument having effect by virtue of any other law and if there was no provision in the other enactment which was inconsistent with the DRT Act or SARFAESI Act, the said provisions could not override other legislations.

25. In my view Section 12 of the Commercial Courts Act providing for determination of specified value as defined in Section 2(i) thereof is not intended to provide for a new mode of determining the valuation of the suit for the purpose of jurisdiction and court fees. It would be incongruous to hold that while for the purpose of payment of court fees the deemed fiction provided in the Court Fees Act for determining the value of the property is to apply but not for determining the specified value under the Commercial Courts Act.

26. In my opinion Section 12 of the Commercial Courts Act has to be read harmoniously with the Court Fees Act and the Suits Valuation Act and reading so, the specified value of a suit where the relief sought relates to immovable property or to a right thereunder has to be according to the market value of the immovable property only in such suits where the suit as per the Court Fees Act and/or the Suits Valuation Act has to be valued on the market value of the property and not where as per the Court Fees Act and the Suits Valuation Act the valuation of a suit even if for the relief of recovery of immovable property or a right therein is required to be anything other than market value as is the case in a suit by a landlord for recovery of possession of immovable property from a tenant.

27. I have already in judgment dated 5th May, 2016 in RFA No. 76/2016 titled Mukesh Kumar Gupta v. Rajneesh Gupta while setting aside the judgment and decree of dismissal at the threshold of two separate suits for specific performance of two separate agreements for sale of immovable property inter alia on the ground that two separate suits had been filed to create pecuniary jurisdiction of the Additional District Judge which otherwise has no jurisdiction as per the value of the property in accordance with the circle rates and Section 12 of the Commercial Courts Act held (a) that since as per the Court Fees Act and Suits Valuation Act the valuation for the purpose of court fees and jurisdiction of a suit for specific performance of an agreement of sale of immovable property has to be as per the consideration agreed in the contract, the specified value of such a suit necessarily has to be in accordance with the consideration agreed in the contract for sale and not the market value of the property; (b) Circle rates notified by the GNCTD for the purpose of guidance of Sub-Registrars to whom the documents/instruments of transfer of property are presented for registration, to ensure that stamp duty in accordance with law is paid thereon have in Manu Narang v. The Lieutenant Governor, Government of National Capital Territory of Delhi and in Amit Gupta v. Government of NCT of Delhi been held to be only presumptive, open to rebuttal.

28. If it were to be held that all suits arising out of agreements relating to immovable property used exclusively in trade or commerce and/or for recovery of possession thereof and/or for realisation of monies with respect thereto, where the market value of the property is in excess of Rs. 1 crore are commercial dispute triable by the Commercial Division of the High Court, it would bring to the Commercial Division of this Court all the disputes as between landlord and tenant of such property and for specific performance of agreements of sale of such property, even if the annual rent thereof or the sale purchase consideration thereof is of less than Rs. 1 crore, inundating the commercial divisions of the High Court and not allowing commercial disputes for expeditious disposal whereof the Commercial Courts Act was enacted to be decided expeditiously and defeating the very purpose of enactment of the Commercial Courts Act. It is a settled principle of interpretation of statutes that the provisions of a statute have to be interpreted in a reasonable way, to serve the purpose for which the statute has been enacted and not to defeat the said purpose. Supreme Court in Union of India v. Ranbaxy Laboratories Ltd. AIR 2008 SC 2286 [LQ/SC/2008/1190] held that the Court has not only to take a pragmatic view while interpreting a statutory provision, but must also consider the practical aspect of it.

29. The claim of the plaintiff in the suit which survives as aforesaid, for realisation of monies, even if held to be monies pertaining to immovable property within the meaning of explanation to Section 2(1)(c) of the Commercial Courts Act was for less than the specified value of Rs. 1 crore. Even if the claim now of the plaintiff for realisation of such monies, taking into account, the rent/mesne profits accruing in the last nearly eight years since the institution of the suit were to be more than Rs. 1 crore, the same also according to me would not make the specified value of the suit to be more than Rs. 1 crore. The determination of specified value as per Section 12(1)(a) of the Commercial Courts Act, where the relief is for recovery of money, is the amount due up to the date of filing of the suit and not the amount due which may be falling due thereafter.

30. I have, speaking for the Division Bench of this Court in Santosh Arora v. M.L. Arora observed that i) law permits a claim for future mesne profits i.e. for a relief, the cause of action where for has not accrued to the plaintiff on the date of the institution of the suit to be made; ii) Order 20, Rule 12 of the CPC requires the Court, in a suit for recovery of possession of immovable property and for rent or mesne profits, to, besides passing decree for possession, also pass a decree for mesne profits or direct an enquiry as to such mesne profits, for the period prior to the institution of the suit if claimed and if within limitation on the date of institution of the suit, and for the period, from the date of institution of the suit until delivery of possession; iii) with regard to future mesne profits, the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit; iv) the limits of the pecuniary jurisdiction of the Court of first instance does not impede and is not a bar to award damages beyond its pecuniary jurisdiction. Reliance was placed on Mahadeo Savlaram Shelke v. Puna Municipal Corporation (1995) 3 SCC 33 [LQ/SC/1995/145] .

31. Thus, for this reason also the suit will not qualify as a commercial dispute to be tried by this Court.

32. The next contention of the counsel for the plaintiff is that the suits cannot be transferred owing to the plaintiff having filed petitions averring the contempt of court by the defendant for non-compliance with the direction for payment of monthly amounts.

33. Order XV-A as added to the CPC applicable in Delhi provides a remedy therefor of striking off of the defence. Even if the contention of the counsel for the plaintiff that Order XV-A having been introduced after the institution of the suit would not apply were to be accepted, the law as developed under Order 39, Rule 10 prior to addition of Order XV-A also was that if the defendant failed to comply with the order of deposit/payment of rent during the pendency of the suit, the remedy therefor was of striking off of the defence. Reference to be made to Raghubir Rao v. Prem Lata 211 (2014) DLT 516 [LQ/DelHC/2014/1710] and Shakuntala Devi v. Seven Star Electricals Pvt. Ltd.

34. Rather, I have enquired from the counsel for the plaintiff whether not the grant of time to the defendant to vacate the property was subject to such payment and if it was so, why the plaintiff, upon non-payment by the defendant, not apply to the Court for the order of ejectment to be executed forthwith.

35. The counsel for the plaintiff states that though the order of grant of time was subject to the payment which the defendant was directed to make but since the time is coming to an end on 31st July, 2016, the plaintiff has not applied therefor.

36. In my view the pendency of application/s averring contempt of court by the defendant also does not come in the way of the suits to be transferred to the subordinate court for the reason i) the said applications are in the nature of Order 39, Rule 2A and which the subordinate courts are competent to deal with; and, ii) even if a case for contempt were to be made out it is always open to the plaintiff to independently approach this Court under its contempt jurisdiction or the subordinate courts are empowered to make a contempt reference to this Court.

37. Accordingly, the suits with pending applications are transferred to the District Judge (South-East), Saket Courts within whose jurisdiction the property at Hauz Khas, New Delhi is situated. The parties to appear before the District Judge/Additional District Judge (South-East), Saket Courts, New Delhi on 29th August, 2016.