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CALCUTTA HIGH COURT
Krishna Rao, J.
Harshvardhan Khemka and Ors. – Petitioners
versus
Sudershan Prasad Bagaria and Anr. – Respondents
GA No.1 of 2024 with GA No.2 of 2024 in R.V.W.O. No.31 of 2024 in CS (Com) No.384 of 2024 (Old No.CS 130 of 2022)
Decided on 29.11.2024
Civil Procedure Code, 1908 – Order XLVII, Rule 1 – Commercial Courts Act, 2015 – Section 15 – Review Application – Respondents being plaintiffs have filed suit before Commercial Division – Defendants/petitioners raised objection that suit filed by plaintiffs is not covered under any of provisions of Section 2(1)(c)(i) of Commercial Court Act, 2015 – Both parties submitted that suit be transferred to Non-Commercial Division – There is no provision for transfer of suit from Commercial Division to Non-Commercial Division – Order is liable to be reviewed and accordingly, it is reviewed – Department directed to return plaint to plaintiffs with liberty to plaintiffs to take appropriate steps to file suit before appropriate Court in accordance with law. (Paras 21, 22 and 23)
Result: Review Application allowed.
JUDGMENT
Krishna Rao, J.—The petitioners/defendants have filed the present Review Application being R.V.W.O. No. 31 of 2024 praying for review of the order passed by this Court dated 10th June, 2024 in C.S. (COM) No. 384 of 2024 (Old No. CS 130 of 2022) wherein this Court as per submissions made by the Learned Counsel for the respective parties, directed the matter be listed before the regular Non-Commercial Division on 19th June, 2024 under the same heading.
2. The petitioners have also filed an application being G.A No. 1 of 2024 and G.A. No. 2 of 2024 along with RVWO No. 31 of 2024 praying for condoning the delay of 12 days in preferring review application and for stay of the order dated 10th June, 2024 till the disposal of the review application respectively. Review application along with other applications were taken together for hearing.
3. Mr. Jishnu Saha, Learned Senior Advocate representing the defendants/ petitioners submits that the suit could not have simpliciter transferred to the regular Non-Commercial Division. He submits that this Court ought to have returned the plaint to the plaintiffs to be filed before the appropriate division.
4. Mr. Saha submits that the plaintiffs/respondents have filed the suit as commercial suit and in the suit, the plaintiffs/respondents have also filed an application under Chapter XIIIA of the Original Side Rules of this Court. The respondents realized that the suit is not maintainable before the Commercial Division of this Court, on 10th June, 2024, submitted that the suit can be heard by the regular Non-Commercial Division. He submits that Learned Counsel appearing for the defendants did not object for the same, being conscious of the fact that the plaint would be returned to the plaintiffs to file afresh before the Non-Commercial Division.
5. Mr. Saha submits that after going through the order passed by this Court dated 10th June, 2024, the petitioners came to know that this Court has simply directed the matter be listed before the Non-Commercial Division on 19th June, 2024, instead of returning the plaint to the plaintiffs with the liberty to file the same before the appropriate Non-Commercial Division.
6. Mr. Saha submits that there is an error apparent on the face of record, thus the order passed by this Court on 10th June, 2024, is liable to be reviewed and to return the plaint to the plaintiffs for taking appropriate steps to file before the appropriate forum.
7. Mr. Saha in support of his submissions relied upon the following judgments:
i. Laxmi Polyfab Pvt. Ltd. Vs. Eden Realty Ventures Pvt. Ltd. & Anr. reported in 2021 SCC OnLine Cal 1457.
ii. Deepak Polymers Pvt. Ltd. Vs. Anchor Investments Pvt. Ltd. reported in 2021 SCC OnLine Cal 4323.
iii. Jaspal Singh Chandhok and Ors. Vs. Sandeep Poddar & Anr. reported in 2023 SCC OnLine Cal 361.
iv. Soumitra Sen & Ors. Vs. Indian Oil Corporation Limited reported in 2023 SCC OnLine Cal 2470.
8. Mr. Abhrajit Mitra, Learned Senior Advocate representing the plaintiffs/ respondents submits that the plaintiffs have not opposed for transfer of the suit from Commercial Division to Non-Commercial Division and accordingly, this Court has passed an order for listing the matter before the Non-Commercial Division on 19th June, 2024.
9. Mr. Mitra submits that from the YouTube recording of hearing dated 10th June, 2024, it reveals that the Learned Counsel for the defendants has categorically submitted before this Court : “Let it be transferred, it cannot be heard My Lord”. The Counsel for the plaintiffs has submitted that: “So My Lord, it be transferred to the Regular Division, Your Lordship can treat it as, it can come on another day, Your Lordship can treat it as Regular Division and can hear it”.
10. Mr. Mitra submits that the Counsel for the petitioners has not made any submission before this Court that the suit cannot be transferred to Non-Commercial Division or that the plaint is required to be returned under Order VII Rule 10 of the
There is no provision for transfer of suit from Commercial Division to Non-Commercial Division.
Suits misclassified as commercial must be treated under ordinary civil jurisdiction; designation does not create a distinct court.
The failure to lodge a writ of summons invalidated the suit, making any proceedings and transfers null and affecting the court's jurisdiction.
The court affirmed that Section 24(5) of the C.P.C. permits transferring a suit lacking jurisdiction to a Commercial Court, while addressing the provisions of the Commercial Courts Act concerning jur....
The court affirmed that Section 24(5) of the CPC allows for transferring cases from civil to commercial courts, even amidst jurisdictional uncertainties, emphasizing the importance of existing proced....
The main legal point established in the judgment is the appealability of orders under Section 13 and Section 15 of the Commercial Courts Act, 2015, and the interpretation of the relevant provisions o....
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