A suit involving a commercial dispute under the Commercial Courts Act, 2015 cannot be entertained by a court exercising ordinary civil jurisdiction. Furthermore, injunctions against invoking bank guarantees are impermissible unless fraud or irretrievable injustice is established.

Sabyasachi Bhattacharyya, J.:

1. The present appeal has been preferred against an order of ad

interim injunction restraining the defendant no. 2/appellant

2

from invoking three performance bank guarantees furnished by

the plaintiff/respondent no. 1.

2. Learned counsel for the appellant contends that the suit, as

evident from the plaint, pertains to a commercial dispute and

as such, the learned trial Judge, sitting in ordinary civil

jurisdiction, could not have entertained the same, since the bar

hits at the very root of the prima facie case for injunction.

3. Secondly, it is argued that it is a settled proposition of law that

injunctions in respect of invocation of bank guarantees are not

readily granted unless a case of fraud or apprehension of

irretrievable injustice is made out in the context of the parent

agreement between the parties.

4. It is contended that the present dispute pertains to the service

to be provided by the plaintiff/respondent no. 1 in respect of

transformers / sub-stations.

5. It is argued that, while obtaining the injunction, the

plaintiff/respondent no. 1 suppressed several complaints

registered by the appellant with the plaintiff/respondent no. 1

by way of several e-mails or other communications relating to

delay in such performance as well as different deficiencies in

respect thereof.

3

6. As such, it is argued that the learned trial Judge erred in law in

granting injunction.

7. Learned counsel appearing for the plaintiff/respondent no. 1

submits that in the City Civil Court at Calcutta, both

commercial and regular civil suits are filed. As such, it cannot

be said beyond doubt that the impugned order was passed

sitting in ordinary civil jurisdiction.

8. Secondly, it is argued that in the event the three performance

bank guarantees are invoked, the plaintiff/respondent no. 1 will

suffer irreparably.

9. Even otherwise, it is submitted that, as pleaded in the plaint,

there is no dispute on the substance of the agreement of

supply of such service.

10. Thus, it is argued that the invocation of bank guarantees, if

permitted at this juncture, would not only be contrary to the

contract between the parties but also create irreparable injury

for the plaintiff/respondent no. 1.

11. Upon perusal of the plaint of the suit, from which the

present appeal arises, we find that although the suit has been

valued only at Rs.100/-, the same squarely pertains to claims

of deficiencies in the services to be rendered by the plaintiff in

4

respect of transformers, sub-stations and other machineries

supplied by the plaintiff/respondent no. 1.

12. It is quite obvious that the valuation of such

transformers/services would much exceed the specified value

as stipulated in the Commercial Courts Act, 2015.

13. In terms of Section 2(1)(c)(xviii) of the 2015 Act, disputes

arising out of agreements for sale of goods or provision of

services comes within the ambit of commercial disputes.

14. It is to be noted that the paradigm of a commercial suit is

entirely different from any other ordinary civil suit, in view of

the provisions of Section 12A of the said Act, which mandates

pre-litigation mediation, and also the summary nature of a

commercial suit as opposed to a regular civil suit.

15. It is the frame of the suit which is to be looked into in order

to ascertain whether the dispute is commercial or not. From

the plaint itself, it is clear that the suit has not been couched as

a commercial suit.

16. Thus, the learned trial Judge did not have authority, sitting

in ordinary civil jurisdiction, to entertain the suit or to pass the

ad interim injunction order.

5

17. Secondly, from the four corners of the plaint, we do not find

any specific allegation that the parent contract from which the

performance bank guarantees emanate were vitiated by fraud

or any irretrievable injustice with regard thereto.

18. Learned counsel for the plaintiff/respondent no. 1 cites a

judgment in the case of U.P. Cooperative Federation Ltd. Vs.

Singh Consultants and Engineers (P) Ltd., reported at (1988) 1

Supreme Court Cases 174, wher