AMIT JAIN Vs. MAHAVIR INTERNATIONAL PVT LTD

JUDGEMENT

(1.) By way of this appeal, brought under the provisions of Order XLIII Rule 1 read with Sec. 151 of the Civil Procedure Code (hereinafter referred to as "the Code") and Sec. 13 of the Commercial Courts Act 2015 (hereinafter referred to as "the Act"), the appellant assailed order dtd. 11/11/2022 of learned District Judge (Commercial), South, Saket, Delhi, whereby application dtd. 5/11/2022 of the appellant plaintiff under Sec. 151 of the Code was treated as application under Order XXIII Rule 1(3) of the Code and disposed of, thereby permitting the appellant to withdraw the suit with liberty to file fresh suit, but declining the request of the appellant for return of the court fees. Upon service of notice of this appeal, the respondents entered appearance through counsel, who on 5/4/2023 submitted that the respondents have no objection to this appeal concerning the relief which has been denied to the appellant by the learned trial court. On 5/4/2023 itself, learned counsel for appellant was also called upon to address on maintainability of this appeal. Accordingly, we have heard learned counsel for both sides.

(2.) Briefly stated, circumstances leading to this appeal are as follows. The appellant filed a suit for recovery of Rs.66,01,538.00 with pendentelite and future interest at the rate of 18% per annum. Although, the cause of action pleaded by the appellant was a personal loan advanced by him to the respondents, but learned counsel for appellant in his wisdom filed the suit as commercial suit. On 7/10/2022, upon filing of written statement with an application under Order VII Rule 11 of the Code, learned trial court framed two questions for clarification, one of which was as to whether the dispute between the parties could be termed as commercial dispute and accordingly the suit was posted for the said clarifications. Thereafter, the appellant filed application dtd. 5/11/2022 under Sec. 151 of the Code seeking permission to withdraw the suit with liberty to file fresh suit before appropriate court and also sought return/refund of the original court fees of Rs.67,000.00. The learned trial court treated the said application as application under Order XXIII Rule 1(3) of the Code and partly allowed the same, thereby permitting the appellant to withdraw the suit with liberty to file fresh suit before appropriate court but declining the prayer for return of court fees. Hence, the present appeal.

(3.) During arguments, learned counsel for appellant contended that the impugned order is a final order insofar as it leads to culmination of the suit and therefore, this appeal is maintainable. As regards refund of court fees, it was contended that since the suit was not adjudicated on merits, the appellant is entitled to refund of court fees, especially because there is no objection from the opposite side. In support of his arguments, learned counsel for appellant placed reliance on Order dtd. 16/4/2021 of a learned Single Judge of this court in the case titled Span Health Care Pvt. Ltd. vs Vishal Sharma, CRP 31/2021; and Judgment dtd. 21/2/2020 of Nagpur Bench of Hon 'ble Bombay High Court in the case titled Nagpur District Central Co-operative Bank Ltd vs Union of India, WP No. 4369/2009. As regards respondents, as mentioned above, they have no objection to this appeal.