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Report No. 188

4. Jurisdiction of Commercial Division in regard to original matters.

(1) Jurisdiction regarding the subject matter:-

In order to set out the subject matter jurisdiction of the Commercial Division, we adopt the definition of 'Commercial Cause' as stated in Rule 1 of Part D of Chapter III (Part V) of the Delhi High Court Rules, with slight modification as discussed below:-

The classification of "commercial cases" in the said rules lays down:

"Commercial cases" include cases arising out of the ordinary transactions of merchants, bankers and traders, such as those relating to the construction of mercantile documents, export or import of merchandize, affreightment, carriage of goods by land, insurance, banking and mercantile documents, mercantile agency, mercantile usage and infringements of trade marks and passing off actions. Suits on ordinary loans and mortgages are not "Commercial cases"."

The above definition is wide and, in fact, has to be widely construed. In the light of our discussion in Chapter IX, we recommend that 'commercial disputes' should be defined as follows:

'Commercial disputes' mean disputes arising out of transactions of trade or commerce and, in particular, disputes arising out of ordinary transactions of merchants, bankers and traders such as those relating to: enforcement and interpretation of mercantile documents, export or import of merchandise, affreightment, carriage of goods, franchising, distribution and licensing agreements, mercantile agency and mercantile usage, partnership, technology development, maintenance and consultancy agreements, software, hardware, networks, internet, website and intellectual property such as trademark, copyright, patent, design, domain names and brands, and such other commercial disputes which the High Court may notify.

Explanation I: A dispute which is commercial shall not cease to be a commercial dispute merely because it also involves action: for recovery of immovable property or for realization of monies out of immovable property given as security or for taking other action against immovable property.

Explanation II: A dispute which is not a commercial dispute shall be deemed to be a commercial dispute if the immovable property involved in the dispute is used in trade or put to commercial use.



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