Calcutta High Court
Md Sarfaraz Alam vs Md Mofazzular Rahman And Ors on 19 June, 2025
Author: Arijit Banerjee
Bench: Arijit Banerjee
OCD- 5
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
(COMMERCIAL DIVISION)
APOT/128/2025
WITH
CS-COM/158/2024
IA NO: GA-COM/1/2025
MD SARFARAZ ALAM
VS
MD MOFAZZULAR RAHMAN AND ORS
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
AND
The Hon'ble JUSTICE RAI CHATTOPADHYAY
Date : June 19, 2025.
Appearance:
Mr. Pranit Bag, Adv.
Mr. Anuj Kr. Mishra, Adv.
Mr. R. R. Modi, Adv.
Mr. Anujit Mookherjee, Adv.
Mr. Prithish Chandra, Adv.
...for the appellant.
Mr. S. N. Mookherjee, Sr. Adv.
Mr. Rudraman Bhattacharyya, Sr. Adv.
Mr. Dhruv Chadha, Adv.
Ms. Pooja Chakraborty, Adv.
Ms. A. Bhattacharyya, Adv.
Ms. Debomita Sidhu, Adv.
...for respondent no. 3.
Mr. Utpal Bose, Sr. Adv.
Mr. D. N. Sharma, Sr. Adv.
Mr. Ankan Rai, Adv.
Mr. Yash Singhi, Adv.
Mr. Ratnesh Kumar Rai, Adv.
Ms. Devanshi Deora, Adv.
Mr. Aakash Mishra, Adv.
Ms. Nabanita Manna, Adv.
...for respondent nos. 5 & 6.
Dictated by Arijit Banerjee, J.
The Court: This appeal is directed against a judgment and order dated
April 9, 2025, whereby a learned Judge of this Court dismissed the appellant’s
application being GA-COM No. 9 of 2024.
2
The parties to the suit were partners of a firm. The appellant contends
that the partnership stands dissolved pursuant to a notice of dissolution
issued by the appellant since the partnership was a partnership at will. The
respondents say that the appellant was expelled from the partnership. We are
presently not concerned with such dispute.
GA-COM No. 9 of 2024 was filed by the appellant in CS-COM No. 158 of
2024 being a suit filed by some of the respondents herein, praying for the
following reliefs:-
a) “An order be passed directing the other respondents and
the plaintiff being the partners of the firm to disburse a sum
of Rs.2,69,61,000/- in favour of the petitioner as detailed in
paragraph 20 hereinabove on account of renal transplant of
the petitioner.
b) An order be passed directing the other respondents and
the plaintiff being the partners of the firm to disburse a sum
of Rs.1,25,40,707/- on account of hospital admission cost of
air ambulance, fooding and lodging in favour of the petitioner.
c) An order be passed directing the Registrar, Original Side,
to release the sum of Rs.50 lakhs along with accrued interest
in favour of the petitioner which can be utilized towards
medical treatment of the petitioner.
d) Ad-interim orders in terms of prayers above;
e) Such further order/orders be passed as this Hon’ble Court
may deem fit and proper.”
At the ad interim stage, no order was passed by the learned Single
Judge. The appellant preferred an appeal being APOT No. 423 of 2024. A Co-
ordinate Bench by a judgment and order dated January 13, 2025, as
corrected and clarified by an order dated January 20, 2025, disposed of the
appeal. The operative portion of that order reads as follows;
“18. The basis of the application appears to be the
prescription of two eminent doctors of Singapore, opinion by
3another specialist Dr. Lalit Kr. Agarwal on 3 rd December, 2024
and the estimated cost for undergoing such treatment. Before
the Co-ordinate Bench, the respondent nos. 2 and 3 had
agreed to provide Rs.50 lakhs for the purpose of providing the
treatment and on the basis of such assurance, the said
amount was released in favour of the appellant on terms and
conditions as indicated in the order dated 21 st December,
2020.
19. It is not in dispute that the said sum of Rs.50 lakhs is
with the Registrar, Original Side and the said amount was
invested. Neither of the parties has applied before the Court
for withdrawal or utilisation of the said amount. This
application has been filed now for utilisation of the said
amount along with other reliefs. The requirement of the said
amount for a medical treatment is prima facie established in
view of several medical documents along with an estimate of
the hospital where kidney transplantation is likely to take
place.
20. Now that the said amount is lying with the learned
Registrar, Original Side and the documents disclosed prima
facie show that it involves substantial expenses to be incurred
for the purpose of transplantation and the doctors have
advised that immediate steps are required to be taken for
kidney transplantation, we are of the view that the amount
lying with the learned Registrar in terms of the order dated
21st April, 2021 passed in APO/29/2020 shall be released
forthwith along with accrued interest in favour of the present
appellant for the purpose of his medical treatment and the
said amount for the time being shall be treated as an interest
free loan till the accounts are finalised. The failure to pass
such interim relief could be fatal and irreversible.
21. It is evident from the orders and the materials on record
that the accounts have not yet been finalised.
22. The Registrar, Original Side shall file a report before the
learned Single Judge on the returnable date placing on record
the auditor’s accounts in order to enable the parties to make
appropriate submission on the said account.
23. We also direct the learned Registrar, Original Side to
circulate the said report to the advocate-on-record of the
parties in the meantime.
24. It would be open for the parties to take exception to the
said report in the pending proceeding and pray for
4appointment of an independent auditor and forensic audit if
required. However, we emphasise that the settlement of
accounts should be done at the earliest to obviate all future
complications. Any further order with regard to disbursement
of further amounts to meet expenses for the medical
treatment shall be considered by the learned Single Judge in
the pending proceeding.”
Thereafter, the appellant’s said application came up for final hearing
before the learned Single Judge after exchange of affidavits. By the judgment
and order impugned in this appeal the learned Judge disposed of the
application without granting any relief to the appellant herein. The operative
portion of the impugned order reads as follows;
“As stated above the Division Bench in the Order dated
06/09/2022 noted that without coming to a finding that the
Respondents are under an legal liability or obligation to
release funds in favour of the Petitioner for his medical
treatment, albeit by way of interest free loan to be adjusted at
the time of final settlement of accounts of the concerned
partnership firm, the Court could not have directed the
Respondents to pay any money to the Petitioner. Adjudication
is pending for deciding the rights and liabilities of the parties
and final settlement of accounts. It is yet to be decided
whether the Defendants or the Plaintiffs are liable to pay any
money to the Defendant no. 1/Petitioner. A Division Bench
previously recorded an agreement between the parties without
mandating them to pay anything to the Defendant no.
1/Petitioner. The Defendant no. 1/Petitioner has been paid a
sum of Rs.10 lakhs per month till March 2025 out of
agreement. It is submitted by Mr. Mookerjee that the amount
is lying in a frozen account. The Defendant no. 1/Petitioner is
at liberty to withdraw the money without prejudice to his
rights and claims.
As discussed above, neither is there any decided right nor
is there any declared equity in favour of the Defendant no.
1/Petitioner. The firm cannot be directed to lend any loan or
provide for any financial accommodation without having any
consent to do that. However, the parties are at liberty to
5provide financial accommodation, financial help to the
Defendant no. 1/Petitioner; they are at liberty to reimburse
the medical costs or provide for costs of treatment of the
Defendant no. 1/Petitioner if the other parties so desire. There
should not be any judicial compulsion to lend money or to
make any agreement between the Defendant no. 1/Petitioner
and the other parties or among the parties herein, inter se. At
this stage, without adjudication of rights and liabilities, this
Court is of opinion that the order prayed for should not be
passed. It is left to the volition of parties to bear medical
expenses of the Defendant no. 1/Petitioner.”
Being aggrieved, the appellant is before us by way of this appeal.
At the outset, Mr. Mookherjee and Mr. Bose, learned senior Advocates
representing the plaintiff no. 3 and the defendant nos. 2 and 3 respectively,
raised a point of maintainability of this appeal. According to them, Section 13
of the Commercial Courts Act would not permit this appeal.
Section 13 of the Commercial Courts Act reads as follows:
“13. Appeals from decrees of Commercial Courts and
Commercial Divisions.- [(1) Any person aggrieved by the
judgment or order of a Commercial Court below the level of a
District Judge may appeal to the Commercial Appellate Court
within a period of sixty days from the date of judgment or
order.
(1-A) Any person aggrieved by the judgment or order of a
Commercial Court at the level of District Judge exercising
original civil jurisdiction or, as the case may be, Commercial
Division of a High Court may appeal to the Commercial
Appellate Division of that High Court within a period of sixty
days from the date of the judgment or order:
Provided that an appeal shall lie from such orders passed by a
Commercial Division or a Commercial Court that are
specifically enumerated under Order XLIII of the Code of Civil
Procedure, 1908 (5 of 1908) as amended by this Act and
Section 37 of the Arbitration and Conciliation Act, 1996 (26 of
1996).]
6(2) Notwithstanding anything contained in any other law for
the time being in force or Letters Patent of a High Court, no
appeal shall lie from any order or decree of a Commercial
Division or Commercial Court otherwise than in accordance
with the provisions of this Act.”
Order XLIII Rule 1 of the Code of Civil Procedure enumerates the orders
from which an intra-court appeal shall lie. Rule 1 is reproduced hereunder:
1. Appeals from orders. – An appeal shall lie from the
following orders under the provisions of Section 104, namely:-
(a) an order under Rule 10 of the Order VII returning a plaint
to be presented to the proper Court [except where the
procedure specified in Rule 10-A of Order VII has been
followed];
(b) [* * *]
(c) an order under Rule 9 of Order IX rejecting an application
(in a case open to appeal) for an order to set aside the
dismissal of a suit;
(d) an order under Rule 13 of Order IX rejecting an
application (in a case open to appeal) for an order to set aside
a decree passed ex parte;
(e) [* * *]
(f) an order under Rule 21 of Order XI;
(g) [* * *]
(h) [* * *]
(i) an order under Rule 34 of Order XXI on an objection to
the draft of a document or of an endorsement;
(j) an order under Rule 72 or Rule 92 of Order XXI setting
aside or refusing to set aside a sale;
[(ja) an order rejecting an application made under sub-rule (1)
of Rule 106 or Order XXI, provided that an order on the
original application, that is to say, the application referred to
in sub-rule (1) of Rule 105 of that Order is appealable;]
(k) an order Rule 9 of Order XXII refusing to set aside the
abatement or dismissal of a suit;
(l) an order under Rule 10 of Order XXII giving or refusing to
give leave;
(m) [* * *]
7
(n) an order under Rule 2 of Order XXV rejecting an
application (in a case open to appeal) for an order to set aside
the dismissal of a suit;
[(na) an order under Rule 5 or Rule 7 of Order XXXIII rejecting
an application for permission to sue as an indigent person;]
(o) [* * *]
(p) Orders in interpleader-suit under Rule 3, Rule 4 or Rule 6
of Order XXXV;
(q) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII;
(r) an order under Rule 1, Rule 2, [Rule 2-A], Rule 4 or Rule
10 of Order XXXIX;
(s) an order under Rule 1 or Rule 4 of Order XL;
(t) an order of refusal under Rule 19 of Order XLI to readmit,
or under Rule 21 of Order XLI to rehear, an appeal;
(u) an order under Rule 23 [Rule 23-A] of Order XLI
remanding a case, where an appeal would lie from the decree
of the Appellate Court;
(v) [* * *]
(w) an order under Rule 4 of Order XLVII granting an
application for review.”
Learned senior counsel for the respondents submitted that the order
sought to be impugned does not come within the purview of Order XLIII Rule 1
of the C.P.C. Therefore, this appeal is not maintainable.
Mr. Bag, learned counsel appearing for the appellant submitted that
against the refusal of the ad interim order, when the appellant had come up
before a Co-ordinate Bench, the Bench had assumed jurisdiction, entertained
the appellant and passed an order on merits. Nobody objected to the
jurisdiction of the Co-ordinate Bench on the ground that that appeal was not
maintainable. Now the respondents cannot urge the point of maintainability.
Mr. Bag further submitted that the prayers in GA-COM No. 9 of 2024
which have been set out hereinabove could be considered to be prayers under
Order XXXIX Rule 1 of the Code of Civil Procedure. In that event, rejection of
8
such prayer would be appealable under Order XLIII Rule 1 and therefore this
appeal would be maintainable.
We are unable to agree with Mr. Bag on either of the aforesaid points. As
regards the first point, the issue as regards the maintainability of the earlier
appeal was not raised before the Co-ordinate Bench at all. The prayer in the
application before the learned Single Judge was for a direction on the
respondents to pay a certain sum of money to the appellant/petitioner. That
prayer having been refused at the ad interim stage, the appeal was preferred. In
our view, that appeal was also not maintainable but this issue was not urged
before the Co-ordinate Bench. There cannot be an estoppel against a statute.
An order refusing the appellant’s prayer in GA-COM No. 9 of 2024 does not
come within the ambit of Order XLIII Rule 1 of the Code of Civil Procedure. The
prayers in the application also cannot be considered to be prayers under Order
XXXIX Rule 1 of the Code of Civil Procedure.
In our considered view, this appeal is not maintainable. Hence we decline
to entertain this appeal only on the ground of maintainability. We have not
addressed the merits of the case at all.
Accordingly, the appeal and the connected application are dismissed.
(ARIJIT BANERJEE, J.)
(RAI CHATTOPADHYAY, J.)
KB
AR (CR)