S. No.118 Suppl.4 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) No.213/2025 Mohammad Amin Kuchay …..Petitioner(s) Through: Mr.Mian Tufail, Advocate and Mr.Babar Bilal Malik, Advocate V/s Mukhtar Ahmad Thokar and Ors … ..Respondent(s) Through : none CORAM: HON‟BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 30.05.2025 1. The petitioner through the medium of present petition has challenged order dated 15.05.2025, whereby plaint filed by him has been returned to him for its presentation before the Commercial Court. 2. It appears that the petitioner/plaintiff has filed a civil suit under Order 37 Rule 1 of CPC seeking recovery of amount of Rs.64.00 lacs alongwith interest etc. from the respondents/defendants. In the said suit, it has been pleaded by the plaintiff that in the year 2021, he had approached the defendants for purchase of land measuring 100 kanals, situated at Gund Ali Nayak, Tehsil Khansahib, District CM(M) No.213/2025 2 | P a g e Budgam with a view to make investment of his money as the petitioner/plaintiff is a businessman. Accordingly, an agreement to sell dated 21.08.2021, was executed between the petitioner/plaintiff and the respondents/defendants, whereby the respondents/defendants agreed to sell the suit land for an amount of Rs.2.21crores. It has been pleaded by the petitioner that the respondents/defendants have already received Rs.60 lacs as earnest money and the balance sale amount was agreed to be paid to the respondents in installments from September, 2021 to January, 2022. It has been further submitted that the respondents/defendants agreed to deliver possession of the suit land in the month of September, 2021 and that the respondents received two more installments of Rs.30 lacs in the month of September/October, 2021.According to the petitioner/plaintiff he made a further payment of Rs.67 lacs to the respondents up to 25.11.2021. Thus, according to the petitioner/plaintiff Rs.1.27crore has been paid by him to the respondents/defendants from 06.08.2021 to 25.11.2021, but delivery of possession of the land in question was not made in his favour in terms of the covenants of agreement to sell. CM(M) No.213/2025 3 | P a g e 3. The petitioner/plaintiff is stated to have entered into deliberations and discussions with the respondents/defendants and it was agreed that instead of refunding double the amount received by the defendants, only an amount of Rs.1.74 crore shall be refunded by the defendants to the plaintiff. It has been pleaded that the defendants returned only 1.10 crore to the plaintiff but have refused to pay remaining amount of Rs.64 lacs. Ultimately defendant No.1 is stated to have issued two cheques dated 19.09.2022 and 22.09.2022 in favour of the plaintiff amounting to Rs.5.00 lacs each. However, the said cheques were dishonoured and proceedings under section 138 of Negotiable Instruments Act were initiated against the drawer of the cheques. It has been contended by the plaintiff that the defendants are liable to pay an amount of Rs.64 lacs to him and now they have categorically refused to liquidate the said amount. 4. On the basis of aforesaid submissions, the plaintiff sought recovery of Rs.64 lacs alongwith interest etc. from the defendants. Learned trial Court has, vide impugned order dated 15.05.2025 returned the plaint on the ground that subject matter of dispute in the suit falls within the definition of “commercial dispute” as contained in Commercial Courts CM(M) No.213/2025 4 | P a g e Act, 2015, as such, the trial court lacks jurisdiction to entertain and try the suit. 5. I have heard learned counsel for the petitioner and perused record of the case. 6. Before determining the issue as to whether the subject matter of the suit filed by the petitioner against the respondents falls within the definition of “commercial dispute”, as contained in Section 2 (1) (c) of Commercial Courts Act, 2015, it would be appropriate to notice the provisions contained in sub clause (vii) of clause (c) of sub section (1) of section 2 of Commercial Courts Act, which is relevant to the context. The same reads as under:- 2. Definitions-(1) In this Act, unless the context otherwise requires,- (a) xxxxxx [(aa)] xxxxxx (b) xxxxxx (c) “commercial dispute” means a dispute arising out of- (i) xxxxxx (ii) xxxxxx (iii) xxxxxx (iv) xxxxxx (v) xxxxxx (vi) xxxxxx (vii) agreements relating to immovable property used exclusively in trade or commerce; (viii) xxxxxx (ix) xxxxxx (x) xxxxxx (xi) xxxxxx (xii) xxxxxx (xiii) xxxxxx (xiv) xxxxxx (xv) xxxxxx (xvi) xxxxxx (xvii) xxxxxx (xviii) xxxxxx CM(M) No.213/2025 5 | P a g e (xix) xxxxxx (xx) xxxxxx (xxi) xxxxxx (xxii) xxxxxx 7. From a perusal of the aforesaid provision, it is clear that a dispute arising out of agreements relating to immovable property used exclusively in trade or commerce qualifies to be a “commercial dispute”. Thus, if a dispute is relating to an agreement in respect of immovable property that is used exclusively in trade or commerce, it would fall within the definition of “commercial dispute”. The expression “used exclusively” is significant to note. It is only those disputes that arise out of agreements relating to such immovable property as is used exclusively in trade or commerce that would fall within the definition of “commercial dispute”. 8. In order to ascertain as to whether or not a dispute arising out of an agreement is a “commercial dispute”, the averments made in the plaint have to be analysed. If it is discernible from the averments made in the plaint that immovable property relating to which the agreement has been executed is being used exclusively in trade or commerce, then the suit involves adjudication of a commercial dispute. It is necessary that at the time of filing of the suit, such property must have been in use exclusively for trade or commerce. The future use CM(M) No.213/2025 6 | P a g e of such immovable property in trade or commerce would not be a determining factor, while considering whether or not a dispute qualifies to be “commercial dispute”. 9. In my aforesaid view, I am supported by judgment of the Supreme Court in the case of Ambalal Sarabhai Enterprises Ltd. vs. K.S.Infraspace LLP & Another (2020) 15 SCC 585. The Supreme Court in the said case, while taking note of the object of the Commercial Courts Act, has made the following observations:- “13…….Having taken note of the submission we feel that the very purpose for which the CC Act of 2015 has been enacted would be defeated if every other suit merely because it is filed before the Commercial Court is entertained. This is for the reason that the suits which are not actually relating to commercial dispute but being filed merely because of the high value and with the intention of seeking early disposal would only clog the system and block the way for the genuine commercial disputes which may have to be entertained by the Commercial Courts as intended by the law makers. In commercial disputes as defined a special procedure is provided for a class of litigation and a strict procedure will have to be followed to entertain only that class of litigation in that jurisdiction. If the same is strictly interpreted it is not as if those excluded will be non-suited without any remedy. The excluded class of litigation will in any event be entertained in the ordinary Civil Courts wherein the remedy has always existed. 14. In that view it is also necessary to carefully examine and entertain only disputes which actually answers the definition “commercial disputes” as provided under the Act. In the instant case, as already taken note neither the agreement between CM(M) No.213/2025 7 | P a g e the parties refers to the nature of the immovable property being exclusively used for trade or commerce as on the date of the agreement nor is there any pleading to that effect in the plaint. Further the very relief sought in the suit is for execution of the Mortgage Deed which is in the nature of specific performance of the terms of Memorandum of Understanding without reference to nature of the use of the immovable property in trade or commerce as on the date of the suit. Therefore, if all these aspects are kept in view, we are of the opinion that in the present facts the High Court was justified in its conclusion arrived through the order dated 01.03.2019 impugned herein. The Commercial Court shall therefore return the plaint indicating a date for its presentation before the Court having jurisdiction.” 10. In the same case, in the concurring judgment delivered by Hon‟ble Mrs. Justice R.Banumathi, as Her Lordship then was, has, after taking note of various provisions of Commercial Courts Act, 2015 and its statement of objects and reasons, observed as under:- “21. A perusal of the Statement of Objects and Reasons of the Commercial Courts Act, 2015 and the various amendments to Civil Procedure Code and insertion of new rules to the Code applicable to suits of commercial disputes show that it has been enacted for the purpose of providing an early disposal of high value commercial disputes. A purposive interpretation of the Objects and Reasons and various amendments to Civil Procedure Code leaves no room for doubt that the provisions of the Act require to be strictly construed. If the provisions are given a liberal interpretation, the object behind constitution of Commercial Division of Courts, viz. putting the matter on fast track and speedy resolution of commercial disputes, will be defeated. If we take a CM(M) No.213/2025 8 | P a g e closer look at the Statement of Objects and Reasons, words such as „early‟ and „speedy‟ have been incorporated and reiterated. The object shall be fulfilled only if the provisions of the Act are interpreted in a narrow sense and not hampered by the usual procedural delays plaguing our traditional legal system. 22. 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”. Such a wide interpretation would defeat the objects of the Act and the fast tracking procedure discussed above.” 11. From the foregoing enunciation of the law, it is evident that merely because the parties, who have entered into an agreement to sell, relating to immovable property, are businessmen by profession or that they intend to use the land, which is subject matter of agreement to sell, for commercial purpose in future, does not make a dispute arising between the parties as a “commercial dispute”. As already indicated, it is the actual user of the immovable property at the time when agreement is executed which is determinative of the question as to whether or not a dispute arising out of a disagreement, is a commercial dispute. CM(M) No.213/2025 9 | P a g e 12. As already narrated hereinbefore the agreement between plaintiff and defendants was executed with respect to sale of immovable property. It is nowhere mentioned in the plaint or in the agreement to sell dated 21.08.2021, which is subject matter of the suit, that the land in question is being used for trade or commerce. Merely because the petitioner is a businessman and he may in future use this land for the purposes of trade and commerce, would not make the dispute between the parties a “commercial dispute”. 13. The learned trial court, without appreciating the aforesaid aspect of the matter, has proceeded to return the plaint by holding that the dispute, which is subject matter of the suit, falls within the definition of “commercial dispute” and as such, it lacks jurisdiction to adjudicate upon the suit. The conclusion of the learned trial court, in this regard, is contrary to the legal position and, as such, the impugned order cannot be sustained in law. 14. For the foregoing reasons, the petition is allowed. The impugned order passed by the learned trial court is set aside. The Registry is directed to return the original plaint which has been filed as an annexure to the present petition, whereafter the petitioner may re-file the same before the learned trial CM(M) No.213/2025 10 | P a g e Court, and the said court shall proceed further in the matter from the stage that had reached at the time of passing of impugned order dated 15.05.2025. 15. A copy of this order be sent to the learned trial Court. (SANJAY DHAR) JUDGE SRINAGAR 30.05.2025 Sarveeda Nissar 1. Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No Sarveeda Nissar I attest to the accuracy and authenticity of this document every page at bottom left side 02.06.2025 14:39