JUDGMENT :

Soumen Sen, J. 

1. This is an application filed under Section 15(5) of the Commercial Courts Act, 2015 for transfer of a suit being Title Suit No. 953 of 2018 presently pending before the 6th Bench, City Civil Court, Kolkata.

2. The appellant filed an application under Section 15 of the Commercial Courts Act, 2015 before the learned Single Judge on 12th October, 2023 after there has been substantial progress in the trial. The basis of the application is that the dispute relates to an immovable property which was exclusively used for trade or commerce and in view of Section 2(1)(c)(vii) of the Commercial Courts Act, 2015, the suit filed by the plaintiff is in relation to a commercial dispute which is to be exclusively decided by the Commercial Court. It was further submitted that the valuation was erroneous.

3. However, on both counts the learned Trial Court has rejected the said application giving rise to the present proceeding.

4. We had initial hesitation as to the maintainability of the application under Section 15(5) of the Commercial Courts Act, 2015 as we are of the view that the remedy would lie in revision since the said order is not an appealable order under Order 43 of the Code of Civil Procedure. Moreover, the order was passed by a Civil Court and a party aggrieved can only challenge the order in accordance with the governing statute applicable to such proceeding (in this case Code of Civil procedure). However, it appears that two Coordinate Benches, in FMAT 154 of 2023 with CAN 1 of 2023 (Sarit Kumar Ghosh & Anr. Vs. Biswanath Banik & Ors.) on 20th April, 2023 and FMAT 390 of 2023 with CAN 1 of 2023 (Prasad Ecostructure LLP Vs. City Devcon Pvt. Ltd. & Ors.) on 19th January, 2024 respectively, have taken a view that the Civil Court, before which the suit is pending, if it decides not to transfer the case holding that it is not commercial then the Commercial Appellate Division of the High Court can be moved with an application under Section 15(5) to adjudge whether the matter is commercial or not and take a decision. The latter decision, however, has also observed in the same breath:

“As opposed to this when the civil court under Section 15 decides that the dispute is commercial and should be transferred to the commercial court and a party is aggrieved by this decision, a similar provision is not provided in Section 15.

To my mind when an ordinary civil court exercising the powers vested in it under Section 15 of the Commercial Courts Act, 2015 adjudicates on whether the suit is to be transferred to the commercial court or not, it continues to function as an ordinary civil court and cannot be described as a commercial court under the said Act. Hence any order passed by it is not appealable under Section 13 of the said Act. If the civil court rules that the suit is to be Transferred to the commercial court the remedy under Section 15 is also not available.

In that case should an aggrieved party be confined to an application for revision under Section 115 of the Civil Procedure Code or a writ application under Section 226 or 227 of the Constitution of India?

The appealability of such an order has to be tested under Order 43 read with Section 104 of the Civil Procedure Code. Order 43(1)(a) provides that an appeal shall lie from an order under Rule 10 of Order VII of the Code returning a plaint to be presented to the proper court.

Every part of a statute has to be given a proper meaning. Order VII Rule 10 provides that when a court comes to a conclusion that it does not have jurisdiction to decide a particular suit it simply returns the plaint to the plaintiff to enable him to present it in the proper court.” (emphasis supplied)

5. The earlier decision, Sarit Kumar Ghosh & Anr. (supra) in interpretation of Section 15(5) of the said Act has made the following observation :-

“The bare reading of the afore-mentioned provision leaves no ambiguity in our mind that in the event, the suit or application pending before the Civil