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OD-29

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

ORIGINAL SIDE

APDT/9/2025

With

CS/177/2022

KAMLESH AGARWAL

VS

KARTAVYA PODDAR

BEFORE:

The Hon’ble JUSTICE DEBANGSU BASAK

-AND-

The Hon’ble JUSTICE MD. SHABBAR RASHIDI

For the Appellant : Mr. Anirban Ray, Sr. Adv.

Mr. Debdutt Mukherjee, Adv.

Mr. Varun Kothari, Adv.

Mr. Nikunj Berlia, Adv.

Mrs. Urvashi Jain, Adv.

For the Respondent : Mr. Rajarshi Dutta, Adv.

Mr. A. P. Agarwalla, Adv.

Mr. Sarbajit Mukherjee, Adv.

Mr. Sarbesh Choudhury, Adv.

HEARD ON : 13.05.2026

DELIVERED ON : 13.05.2026

DEBANGSU BASAK, J.:-

1. Appeal is at the behest of a defendant in a suit and directed against

the judgment and decree dated January 15, 2025.

2. By the impugned judgment and decree, learned Single Judge,

passed a decree for a sum of Rs.10,00,000/- along with interest at the

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rate of 15% per annum from April 1, 2019 till realisation of the decretal

amount, under Chapter XIIIA of the Original Side Rules.

3. Learned Senior Advocate appearing for the appellant submits that,

the suit was for recovery of money lent and advanced. He submits that,

the respondent herein, as the plaintiff, is a money lender within the

meaning of West Bengal Money Lenders Act, 1940. The respondent does

not possess requisite licence under the Act of 1940. In such

circumstances, relying upon three decisions of the Hon’ble Supreme

Court rendered in SLP (Crl.) No. 5485/2024 dated July 23, 2024,

February 16, 2026 and April 6, 2026, he submits that, the suit in which

the impugned judgment and decree was passed, was not maintainable.

4. Learned Senior Advocate appearing for the appellant submits that,

in addition to the issue of maintainability of the suit on the ground of

the Act of 1940, there is an issue of maintainability of the suit under

the provisions of the Commercial Courts Act, 2015. He submits that,

the subject matter of the suit is a commercial dispute within the

meaning of Section 2(1)(c)(i) of the Act of 2015. He draws the attention

of the Court to the pleadings of the plaint. He submits that the

pleadings of the plaint itself establish that, the subject matter of the

suit involves commercial dispute within the meaning of the Act of 2015.

5. Learned Senior Advocate appearing for the appellant submits that,

these two issues are triable. Therefore, the learned Single Judge erred

in passing a summary decree under Chapter XIIIA of the Original Side

Rules. He points out that, the appellant filed written statement.

6. Learned advocate appearing for the respondent draws the attention

of the Court to three decisions of the Supreme Court rendered in SLP

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(Crl.) No. 5485/2024. He submits that, on a holistic reading of those

three decisions, they are to be limited to the provisions of the Punjab

Registration of Money Lenders Act, 1938. He submits that, the issue of

absence of licence under the provisions of the Act of 1938, puts an

embargo on filing of any proceedings. Such provisions are not there

under the Act of 1940. Therefore, the decisions of the Supreme Court

should not be read to mean that, the instant suit is not maintainable.

7. Referring to Section 13 of the Act of 1940, learned Advocate

appearing for the respondent submits that, at best, absence of licence,

will result in stay of the suit till such time, the licence is furnished. Suit

cannot be held to be not maintainable. An opportunity should be

afforded to the respondent as the plaintiff to produce the licence prior to

the passing of the decree.

8. Learned Advocate appearing for the respondent submits that, the

respondent never acted as a money lender. He submits that,

acquaintance between the plaintiff and the defendant developed due to

the nature of business that the defendant carried on. Due to such

acquaintance respondent granted the accommodation loan to the

appellant. The respondent never lent or advanced money to the

appellant as a money lender within the meaning of the Act of 1940. In

this regard, he refers to the definition of a money lender, loan, as also

the business of money lendin