The central legal point established in the judgment is the interpretation of 'commercial dispute' and 'service' under the Commercial Courts Act, 2015, and the relevance of the Bengal Money Lenders Act, 1940, in the context of money recovery suits.

JUDGMENT

Debangsu Basak, J. - In a suit for recovery of money lent and advanced, the plaintiff has applied for judgement on admission.

2. Learned senior advocate appearing for the plaintiff has submitted that, the plaintiff had lent and advanced a sum of Rs. 5 crores to the defendant. The defendant has admitted receipt of the sum of Rs. 5 crores from the plaintiff. The defendant has admitted that the agreed rate of interest payable is 15% per annum. The defendant has stated that it repaid the sum of Rs. 3 crores inclusive of interest up to the date of filing of the suit. The defendant has also stated that it repaid a sum of Rs. 30 lakhs on December 21, 2020 post filing of the suit.

3. Learned senior advocate appearing for the plaintiff has submitted that, although the defendant did not raise the issue of Bengal Money Lenders Act, 1940 in the affidavit, the plaintiff in order to avoid any controversy paid the licence fee along with penalty in terms of section 10 read with section 13 (2) of the Act of 1940 on February 18, 2020. According to him, even without payment of the license fee, the Court could have proceeded to pass a summary decree. In support of such contention, he has relied upon ( Arpit Impex Private Limited v. Arunodaya Plantations Ltd.,2002 2 CalLJ 169 ) and ( Swaika Vanaspati Products Ltd. v. Canbank Financial Services Ltd., (2000) 2 CalLJ 185 ).

4. Learned senior advocate appearing for the plaintiff has submitted that, the defendant in its affidavit did not dispute the claim in the suit to be a 'commercial dispute' as defined in Section 2 (1) (c) of the Commercial Courts Act, 2015. He has contended that, the defendant in the supplementary affidavit dated January 18, 2021 has stated that the plaintiff sought to have exhausted the remedy of pre-institution mediation under section 12A of the Act of 2015 before instituting the suit. He has submitted that, leave under Section 12A of the Act of 2015 was obtained at the time of presentation of the plaint. He has submitted that, the defendant is not disputing the fact that the loan in question is by one company to another company, both carrying on commercial activities, and is a commercial loan. The plaintiff has deposited penalty under Section 13(2) of the Act of 1940 at the behest of the defendant. According to him, the defendant thereafter cannot contend that the disputes are not commercial disputes within the meaning of the Act of 2015.

5. Learned senior advocate appearing for the plaintiff has submitted that, in any event, Section 2(1)(c)(xvii) of the Act of 2015 covers the present dispute since the money lent and advanced is a type of 'service' rendered by the plaintiff to the defendant. He has relied upon the Finance Act, 1994 particularly on Section 65(12)(a)(ix) and Section 65(105)(zm) thereof. He has submitted that, by the subsequent amendment to the Act of 1994 such type of service has been placed in the negative/non-taxable list of services under section 66B (34) read with section 66D (m).

6. Learned senior advocate appearing for the plaintiff has submitted that, Section 2(u) of the Competition Act, 2002, Section 2(1)(z) of the Trademark Act 1999 and Section 2(1)(o) of the Consumer Protection Act, 1986 has considered service of lending money even by a non-banker/financer to be a service. He has contended that, Section 2(1)(c)(vii) of the Act of 2015 also covers agreement for sale of goods without any restriction on the type of goods sold and delivered. According to him, there can be no justification for excluding some type of services from the scope of the expression 'provision of services' and yet include all types of goods sold and delivered. It would amount to digressing into legislative function if the Court defines what type of service would be covered by the expression 'provision of services' even though the statute has remained silent.

7. Learned senior advocate appearing for the defendant has contended that, no decree can be passed in the suit, as fram