Point of Law: Appeals from decrees of Commercial Court and Commercial Division. The present Regular First Appeal has not been preferred under Section 13 of the Act but under Order XLI, Rule 1 and 2 of CPC.

ORDER :

1. R.F.A. No 04 of 2018 was filed on 05.10.2018 against the judgment and decree dated 30.07.2018 (impugned judgment and decree) passed by the learned District Judge, South Sikkim, at Namchi (the learned District Judge) in Money Suit No. 3 of 2016 (Money Suit). It was dealt with by the learned Single Judge of this court from 25.10.2018 till 22.10.2021. On examination the learned Single Judge came to a prima facie view that the matter pertained to a commercial dispute and ought to be tried as per the Commercial Courts Act, 2015 (Commercial Act). In terms of Circular No. 06/HCS/Judl. dated 27.04.2021 of this court the matter was directed to be placed before the Hon’ble Chief Justice for appropriate directions. On 22.10.2021 the Hon’ble Chief Justice of this court revoked Circular No. 6/HCS/Judl. dated 27.04.2021. Pursuant thereto the matter came up for hearing before this Division Bench.

2. We have heard Mr. Anmole Prasad, learned Senior Advocate for the appellant and Mr. Jorgay Namka, learned counsel for the respondent. Both the learned counsel expressed their view that since the dispute between the parties had not been tried as a commercial dispute there has arisen a legal conundrum and the only way out is to set aside the impugned judgment and decree and transfer the Money Suit to the Commercial Court.

3. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 came into force on 23.10.2015. It was amended in the year 2018 and is now called the Commercial Courts Act, 2015 (the Act).

4. Section 2 (1) (c) defines commercial dispute. The learned counsel for the parties agrees that the dispute in the present matter is a commercial dispute. The Money Suit filed by the respondent sought a decree against the appellants for a sum of Rs. 1,29,00,728/- along with interest @ 12% per annum on and from 01.04.2014 till realization. It was the respondent’s case that the appellant no. 1 had been assigned its marketing/distribution work as its sole agent for the North Bengal region. The respondent relied upon memorandum of understanding and an agreement of agency between them as well as a promissory note executed by the appellant no. 2. Considering the nature of the dispute it is apparent that it is a commercial dispute.

5. Vide Notification No. 27/HCS/Judl. dated 20.08.2016 the Hon’ble Chief Justice in exercise of powers vested on him under Section 5(1) of the Act constituted the Commercial Appellate Division in this court to deal with appeals arising from orders/judgments/decrees passed by the Commercial Courts/Commercial Division as provided under Section 13 of the Act.

6. The Government of Sikkim vide Notification No. 58/Home/2016 dated 06.10.2016 in exercise of the powers conferred by Section 3 of the Act designated the District & Sessions Court of all the four districts as “Commercial Courts” and the Judges of the District & Sessions Courts as the Judges of the Commercial Courts for the purpose of adjudicating commercial disputes within their respective jurisdiction with immediate effect.

7. Section 6 of the Act provides for jurisdiction of the Commercial Courts. It has jurisdiction to try all suits and applications relating to a commercial dispute of a specified value arising out of the entire territory of the State over which it has been vested territorial jurisdiction. Section 2(1)(i) defines specified value. Specified value, in relation to a commercial dispute, shall mean the value of the subject-matter in respect of a suit as determined in accordance with Section 12 which shall not be less than three lakh rupees or such higher value, as may be notified by the Central Government. Section 12 provides how specified value ought to be determined in a suit, appeal or application.

8. Section 12-A of the Act mandates a pre-institution mediation and settlement. A suit which does not contemplate any urgent interim relief under the Act, shall not be instituted unless the plaintiff exhausts the remed