IMPORTANT POINT
The court established that a dispute can be classified as a commercial dispute even if it involves allegations of fraud, and the limitation period for such cases starts upon discovery of the fraud.

JUDGMENT :

(Biswajit Basu, J.) :

1. The instant application under Article 227 of the Constitution of India is directed against the Order No. 26 dated June 11, 2024 passed by the learned Judge, Commercial Court at Alipore, District: 24 Parganas (South) in Money Suit No. 04 of 2023.

2. The defendant no. 1, the petitioner herein by an application under Order VII Rule 11 of the Code of Civil Procedure threw a challenge to the maintainability of the said suit and prayed rejection of its plaint on the grounds that the dispute sought to be raised in the suit is not a ‘commercial dispute’ within the meaning of Section 2(1)(c) of the Commercial Courts Act, 2015 (hereinafter referred to as the ‘the said Act of 2015’ in short ) and that the cause of action of the suit is barred by limitation; the learned Trial Judge by the order impugned has dismissed the said application.

3. Mr. Jishnu Saha, learned senior advocate for the petitioner submits that the cause of action to file the suit is based on the allegation that a third party, to secure loan from the bank, had practiced fraud upon the predecessor-in-interest of the plaintiffs in putting his property as a collateral security to the said loan; therefore, the period of limitation for filing the suit, in terms of Section 17 of the Limitation Act, 1963 (hereinafter referred to as ‘the said Act of 1963’) commences from the date when the plaintiff had discovered the said alleged fraud.

4. Mr. Saha, referring to paragraph 35 of the plaint, contends that the said paragraph discloses the cause of action of the suit, wherein it has been averred that such cause of action firstly arose on February 16, 2012 when the plaintiff had made payment of Rs. 1,46,00,000/-(One crore Forty Six lakhs rupees only) to the petitioner, as such, in terms of Article 56 of the said Act of 1963, the suit is required to be filed within a period of three years from the said date; instead, it has been filed almost ten years thereafter; the suit therefore, is apparently barred by limitation. To explain the scope of Section 17 of the said Act of 1963, Mr. Saha refers to the decisions of the Hon’ble Supreme Court in the case of P. RADHA BAI AND OTHERS vs. P. ASHOK KUMAR AND ANOTHER reported in (2019) 13 Supreme Court Cases 445, and in the case of SARANPAL KAUR ANAND vs. PRADUMAN SINGH CHANDHOK AND OTHERS reported in (2022) 8 Supreme Court Cases 401 and in the case of SUPER DIAMOND TOOLS AND OTHERS vs. K. MOHAN RAOreported in (2023) SCC OnLine SC 302.

5. Mr. Saha, regarding the nature of the dispute raised in the said suit, submits that the plaintiff is alleging that the signature of his father was forged to secure the said loan, therefore when there is no transaction between the plaintiff’s father and the predecessor-in-interest of the petitioner, the dispute raised in the suit cannot come within the purview of ‘commercial dispute’ as defined under the said Act of 2015, consequently the plaintiff is not entitled to maintain the said suit before a Commercial Court.

6. Mr. Sakya Sen, learned advocate for the plaintiff, the opposite party no. 1 herein submits that the predecessor-in-interest of the plaintiff had lodged a complaint with the concerned Police authority alleging fraud and forgery to secure the said loan and on the basis of the said complaint, a criminal case was initiated in which it was found that such fraud and/or forgery was committed, but due to the failure of the police authority to trace the identity of the beneficiary of the said loan amount, the said criminal case, on December 02, 2020, was dropped by a final report pursuant to which the plaintiff had acquired specific knowledge about such fraud and/or forgery; therefore, in terms of Section 17 of the said Act of 1963, the cause of action to file the suit arose from the said date and in terms of Article 56 thereof, the suit was filed within three years thereafter; in this backdrop, it is preposterous to suggest that the suit is barred by limitation.

7. Mr.