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Calcutta High Court
Sk. Mansur Ali And Anr vs Sri Kulnath Kapoor And Ors on 26 August, 2025
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OD-41
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
Ordinary Original Civil Jurisdiction
EC/503/2023
IN
IA NO: GA/1/2024
SK. MANSUR ALI AND ANR. VERSUS SRI KULNATH KAPOOR AND ORS.
Before:
The Hon’ble Justice BISWAROOP CHOWDHURY
Date: 26th AUGUST 2025Appearance:
Mr. Shyamal Mukhopadhyay,
Adv.
Ms. Priyanka Chatterjee,
Adv.
…for the petitioners/decree-
holders
Mr. Rohit Banerjee, Adv.
Mr. Subhankar Chakrabory,
Adv.
Mr. Saptarshi Bhatacharjee,
Adv.
Ms. Sayani Gupta, Adv.
..for judgment debtor
The Court: The petitioners before this Court are the Judgment Debtors in the instantcase and have filed this application praying for the following reliefs:
a) An order be passed declaring the Judgment and Decree dated March 24,
2023 passed in C.S. No. 220 of 2019 as a nullify, inexecutable and not
binding upon the Judgment Debtors;
b) An order be passed dismissing E.C. No. 503 of 2023;
c) An order be passed staying all the proceedings and/or further proceedings
of E.C. No. 503 of 2023 until disposal of the present application.
d) Ad interim orders in terms of prayers (a) (b) and (c) above;
e) Suitable order as to costs;
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f) Such further and/or other order or orders and/or direction or directions be
passed as this Hon’ble Court may seem proper.
The facts relating to the filing of this application is that by Judgment dated 24-
03-2023, passed in C.S. 220 of 2019, by His Lordship the Hon’ble Justice Krishna
Rao, where the petitioners/Judgment debtors were defendants a money decree was
passed with the following observations and directions;
‘Upon perusal of the pleadings evidence of the plaintiff and the documents, it is
proved that the defendants have issued work order to the plaintiff for execution of the
work as mentioned in the exhibit – 7 and on completion of work, the plaintiff has
submitted final bill for an amount of Rs. 53,20,416/- but in spite of receipt of the
final bill the defendants have not paid the balance amount to the plaintiff.
In view of the above this court finds that the plaintiff has proved the case and
the plaintiff is entitled to get the decree as prayed for.
Defendants are directed to pay an amount of Rs. 53,20,416/- along with
interest at the rate of 10% per annum from the date of receipt of final bill i.e. 6th July
2017 till the realization of the decretal amount.
C.S. No. 220 of 2019 is thus disposed of. Decree be drawn accordingly.’
As the defendants/judgment debtors did not comply the decree this application
for execution is filed.
The decree is challenged by the Judgment Debtors on the following grounds.
A. The Decree was passed ex parte and in the absence of the Judgment
Debtors after the suit was listed in the peremptory undefended list for suit.
B. None of the Judgment Debtors qua the Defendants in C.S. No. 220 of 2019
were ever served with a copy of the plaint filed by the Decree Holders, qua
the plaintiffs in the said suit.
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C. None of the four General Applications being G.A. 1 of 2019, G.A. 2 of 2019,
G.A. No. 3 of 2021, and G.A. 4 of 2021 which were filed and disposed have
never been served upon the Judgment Debtors.
D. The defendants were never served with the copy of the plaint and the
documents sued on. Therefore the service of summons upon the Defendant
in C.S. No. 220 of 2019 was improper.
E. The submissions made by the plaintiffs are untrue and incorrect and the
observations recorded by the Hon’ble Trial Court are improper.
F. The Defendants did not receive the writ of summons together with copy of
the plaint which was never served upon the Defendants, consequently the
Defendants could neither had entered appearance nor had filed a Written
Statement to contest C.S. No. 220 of 2019.
G. The plaintiffs have misrepresented before the Hon’ble Trial Court by relying
on manufactured documents.
H. The legal notices could never be marked as Exhibit (Exhibit 11 and Exhibit-
12) at the time of trial of C.S. No. 220 of 2019.
I. The documents which have been marked as Exhibit-11 and Exhibit-12 are
improper and the admissibility and mode of proof of the said documents
have also been improper and incorrect.
J. The dispute complained of is clearly a commercial dispute and as alleged by
the plaintiffs arises out of construction contract which included
construction of infrastructure by the plaintiffs and also to provide allied
services.
K. The suit C.S. no. 220 of 2019 has been filed as a non-commercial suit and
in the Ordinary Original Civil Jurisdiction of this Hon’ble Court, although it
involves commercial dispute.
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L. The Hon’ble Trial Court did not have jurisdiction to pass the said decree.
Thus the decree passed is a nullity.
Pursuant to filing of the petition, Affidavits were exchanged.
Heard Learned Advocate for the Decree-holder and Learned Advocate for the
Judgment Debtor, perused the petition filed and materials on record.
Learned Advocate for the Judgment Debtor submits that the Hon’ble Trial
Court did not have jurisdiction to try the suit as the suit involves adjudication of
commercial dispute and it ought to have been tried by the Court having jurisdiction
to try commercial suits. Learned Advocate draws attention to the Order passed in the
application filed under Order IX. Rule 13 of the Code of Civil Procedure by the
Judgment Debtors in GA 5 of 2024 in CS. No. 220 of 2019, and submits that
although the application for setting aside decree filed under Order IX Rule 13 of the
Code of Civil Procedure was dismissed on the ground that it cannot be held that the
notice of the suit was not served upon the defendants, but the Learned Judge came
to a finding that the suit is commercial in nature. Learned Advocate further submits
that the Learned Judge although held that the suit filed by the plaintiffs is
commercial in nature but neither under Order IX Rule 13 nor under Section 151 of
the Code of Civil Procedure 1908, the Court can recall/review the judgment and
decree dated 24th March 2023 passed due to lack of jurisdiction as the defendants
having alternative remedy under the Code of Civil Procedure 1908. Learned Advocate
also submits that in terms of the observation made by the Learned Judge while
disposing application under Order IX Rule 13 of the Code of Civil Procedure the
Judgment Debtors/Petitioners have filed this application.
Learned Advocate for the Decree holder submits that the application filed by
the Judgment Debtors is not maintainable and the same should be dismissed and
the Execution case should be proceeded with.
Before proceeding to decide the material in issue on the grounds raised by the
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judgment debtor it would be reasonable to classify the grounds under 3 category.
Category (i) deals with the ground of non-receipt of summons, and the copy of
the plaint as mentioned in Ground A,B,C,D, and F and Ex-parte Decree being
passed.
Category(ii) deals with the merits of the matter and alleged error committed by
Learned Trial Judge as mentioned in Ground E,G,H, and I.
Category(iii) deals with the nature of dispute, jurisdiction of the Court and the
decree passed alleged to be nullify.
So far grounds coming under the Category (i) it will appear from the order
passed in application for setting aside ex-parte decree by a Learned Co-ordinate
Bench of this Court that these points were raised, considered and decided by the
Learned Bench of this Court. The observation made by the Learned Bench is stated
herein below for clarity.
’15. The defendants have taken the defence that the notices were not affixed at
the premises of the defendants but the report of the Deputy Sheriff proved that the
notices were affixed at the outer wall of the premises of the defendants and in the
notice board of this Court. On the other hand it is admitted by the defendants that
the defendants have received notice from the Registrar Original Side of this Court
and the defendants by their communication requested the Registrar to provide copy
of plaint and documents but the same were not provided to the defendants. It is not
the case of the defendants that this court has fixed the suit in the list of ‘un-
Defended Suit’ due to non-filing of written statement.’
16, Taking into consideration of the above, this Court finds that though the
writ of summons were not served upon the defendants through sheriff or through the
postal services but thereafter the notices of the suit were affixed at the outer wall of
the premises of the defendants, notice board of this Court, publication of notice in
the Bangla News Proper and English News Paper were also made and the plaintiffs
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have also received notice from the Registrar of this Court thus it cannot be said that
the notice of the suit was not served upon the defendants.’
Thus from the observation made by a Learned Co-ordinate Bench of this Court
it is clear that contention of non-receipt of summons and copy of plaint by Judgment
Debtor is already decided, hence the issue cannot be re-opened.
Now with regard to the ground mentioned in category no-(ii) it appears that the
judgment debtors has alleged about false submission by the plaintiff, and about
manufactured documents, and documents being wrongly marked as exhibits. With
regard to these grounds this Court is of the view that as application for annulment of
decree is not an appeal in disguise this Court cannot sit in appeal by going into the
merits of the Judgment and Decree passed by the Learned Trial Court.
Now the grounds coming under Category (iii) only remain for consideration.
Whether the Judgment and Decree passed by the Learned Trial Court on 24th March
2023 in C.S. No. 220 of 2019 is a nullity, is to be decided.
As the ground for assailing the decree of the Learned Trial Court as nullity is
that the suit being a commercial suit is filed in the ordinary original civil jurisdiction
of this Hon’ble Court as non-Commercial suit it is necessary to consider the relevant
provisions of the Commercial Courts Act 2015.
The Commercial Courts Act 2015 was enacted for the Constitution of
Commercial Courts, [Commercial Appellate Courts], Commercial disputes of specified
value and for matters connected therewith or incidental thereto.
Section 2(b) of the Commercial Courts Act 2015 defines Commercial Courts as
follows:
‘Commercial Court’ means the Commercial Court constituted under Sub-
Section (1) of Section 3.
Section 3. of the Commercial Courts Act 2015 provides for Institution of
Commercial Courts as follows:
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S.3. Institution of Commercial Courts:-
1) The State Government may after consultation with the concerned High
Court by notification constitute such number of Commercial Courts at District Level,
as it may deem necessary for the purpose of exercising the jurisdiction and powers
conferred on those Courts under this Act:
Provided that with respect to the High Courts having ordinary original Civil
Jurisdiction the State Government may after consultation with the concerned High
Court, by notification constitute commercial Courts at the District Judge level:
Provided further that with respect to a territory over which the High Courts
have ordinary original Civil jurisdiction, the State Government may by notification,
specify such pecuniary value which shall not be less than three lakh rupees and not
more than the pecuniary jurisdiction exercisable by the District Courts as it may
consider necessary.
(1A) Notwithstanding anything contained in this Act, the State Government
may after consultation with the concerned High Court by notification specify such
pecuniary value which shall not be less than three lakh rupees or such higher value
for whole or part of the state as it may consider necessary.
2) The State Government shall after consultation with the concerned High
Court specify by notification the local limits of the area to which the jurisdiction of a
Commercial Court shall extend and may from time to time increase, reduce or alter
such limits.
3) The [State Government may] with the concurrence of the Chief Justice of the
High Court appoint one or more persons having experience in dealing with
commercial disputes to be the Judges or Judges of a [commercial Court either at the
level of District Judge or a Court below the level of District Judge].
Section 15 (1) of the Commercial Courts Act 2015 provides that all suits and
applications including applications under the Arbitration and Conciliation Act 1996
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(26 of 1996) relating to a commercial dispute of Specified Value pending in a High
Court where a Commercial Division has been constituted shall be transferred to the
Commercial Division.
Sub-Section 2 of Section 15 provides that all suits and applications including
applications under the Arbitration and Conciliation Act 1996 (26 of 1996) relating to
a commercial dispute of Specified Value pending in any Civil Court in any district or
area in respect of which a Commercial Court has been constituted shall be
transferred to such Commercial Court:
Provided that no suit or application where the final judgment has been
reserved by the Court prior to the constitution of the Commercial Division of the
Commercial Court shall be transferred either under sub-Section (1) of Sub-Section
(2).
Upon reading of Section 3 of the Commercial Courts Act it will appear that the
power to set up Commercial Court is conferred upon the State Government after
consultation with the High Court. Thus Section 3 (1) of the Act along with the proviso
is quoted once again at the cost of repetition.
S.3. Institution of Commercial Courts:
1) The State Government may after consultation with the concerned High
Court, by notification constitute such number of Commercial Courts at District level,
as it may deem necessary for the purpose of exercising the jurisdiction and powers
conferred on those Courts under this Act:
Provided that with respect to the High Courts having ordinary original Civil
Jurisdiction the State Government may after consultation with the concerned High
Court, by notification constitute Commercial Courts at the District Judge Level:
Provided further that with respect to a territory over which the High Courts
have ordinary original civil jurisdiction, the State Government may by notification
specify such pecuniary value which shall not be less than three lakh rupees and not
9more than the pecuniary jurisdiction exercisable by the District Courts as it may
consider necessary.
The present proviso to Section 3 of the Commercial Courts Act 2015 was
introduced by amendment dated 03-05-2018.
Prior to the substitution by amendment it stood as under:
‘Provided that no Commercial Court shall be constituted for the territory over
which the High Court has original jurisdiction.’
Thus prior to 03.05.2018 Commercial Division of High Court could not be
constituted for the territory over which the High Court has ordinary original
jurisdictation.
Pursuant to amendment of proviso to section 3 and further introduction of
sub-section 1A to Section 3. Commercial Division of High Court was constituted.
As subsection 1A to Section 3 conferred power on the State Government to
consult with the concerned High Court and by notification specify such pecuniary
value which shall not be less than three lakh rupees or such higher value for whole
or part of the State as it may consider necessary State of West Bengal by publishing
notifications at different times have specified pecuniary limits of Commercial Courts
in West Bengal.
In terms of Notification dated 15th November 2018 being 25 4-JL State of West
Bengal after consultation with the High Court Calcutta fixed the pecuniary
jurisdiction in respect of the value of commercial disputes.
The notification dated 15th November 2018 provides as follows:
NOTIFICATION.
‘In exercise of the powers conferred by sub-section (1A) of Section 3 of the
Commercial Courts, Commercial Division and Commercial Appellate Division of High
Courts Act 2015 (4 of 2016) as subsequently amended (hereinafter referred to as the
said Act) the Governor after consultation with the High Court at Calcutta vide Memo
10No. 3599-RG dated the 20th August 2018, is pleased hereby to specify the pecuniary
jurisdiction in respect of the value of the commercial disputes of:-
i) The Commercial Courts at Siliguri, Asansol, Alipore and Rajarhat to be
not less than Rupees – Seventy – Five lakhs; and
ii) The Commercial Division of the High Court Calcutta to be not less than
Rupees One Crore,
For the purpose of exercising the jurisdiction and powers conferred on those
Commercial Courts and the Commercial Division under the said Act.’
Hence in terms of Notification dated 15th November 2018 issued by State of
West Bengal, High Court Calcutta was conferred power to try Commercial suits only
where the value exceeds Rupees one Crore.
The Suit filed by the plaintiffs/Decreeholders was for a decree of Rs.
53,20,416/- along with interest of Rs. 20,74,962/- which accrued till the date of
institution of the suit.
Thus in terms of Notification dated 15th November 2018 the suit filed did not
satisfy the provision regarding pecuniary limit so it could not be filed in the
Commercial Division of the High Court as a Commercial suit. So the suit was rightly
filed as a non-commercial Suit in the non-commercial Division.
Subsequently by Notification dated 20th March 2020 being No. 158 JL State of
West Bengal modified the pecuniary jurisdiction in terms of the value of the
Commercial dispute as follows:
a) In case of Commercial Courts at Siliguri Asansol. Alipore and Rajarhat of an
amount not less than rupees thirty lakhs.
b) In case of Commercial Courts within the territorial jurisdiction of the City
Court at Calcutta of an amount, 1) not less than three lakh and not more
than rupees ten lakh exclusively and ii) exceeding rupees ten lakh but not
11exceeding rupees one crore concurrently with the Commercial Division of
the High Court Calcutta;
c) In case of the Commercial Division of the High Court Calcutta of an amount
exceeding rupees ten lakh.
Now the point for consideration is whether by change of pecuniary limits the
suit was required to be transferred to the Commercial Division of this High Court.
Upon plain reading of Section 15 of the commercial Courts Act it is clear all
suits relating to a commercial dispute of a specified value pending in a High Court
where a Commercial Division has been constituted shall be transferred to the
Commercial Division.
However when this statute came into force the direction provided under
Section 15 was required to be complied as Section 2(i) defined specified value in
relation to commercial dispute is the value of the subject matter of the suit as
determined in with Section 12 [which shall not be less than three lakhs rupees] or
such higher value as may be notified by the Central Government. Thus the power to
notify specified value was conferred on the Central Government.
Thus pursuant to notifying specified value by Central Government
Commercial disputes were required to be transferred to such Commercial Court
where it has been constituted. Subsequently by amendment no. 03-05-2018 to
Section 3 an additional sub-section namely 1A was introduced which provides as
follows:
‘1A. Notwithstanding anything contained in this Act, the State Government
may after consultation with the concerned High Court by notification specify such
pecuniary value which shall not be less than three lakh rupees or such higher value
for whole or part of the State as it may consider necessary.’
Although prior to introduction of Sub-Section 1A to Section 3 of the
Commercial Courts Act suits were required to be transferred after Commercial Courts
12are constituted for adjudicating Commercial Dispute of a specified value, in
compliance to Section 15 of Commercial Courts Act 2015. As Sub-Section 1A of
Section 3 of the Commercial Courts Act 2015 empowered the State Government after
consultation with the concerned High Court to specify pecuniary value, the State
Government is empowered to alter the existing pecuniary value by maintaining the
minimum value of not less than three lakh rupees. Whether such specification of
pecuniary value by notification is prospective or retrospective will have to be
ascertained from the said notification itself. As notification under Section 3(1A) is
issued by the State Government after consultation with the High Court unless it is
specified in the notification that specified value is to take effect retrospectively it has
to be presumed that the said notification is prospective. Thus in the event the
intention of the State Government and High Court is that notification is to take effect
retrospectively the same should be reflected in notification.
Upon perusal of the notification dated 20th March 2020 issued by the State
Government nowhere it appears that the notification with regard to specified value is
retrospective. Thus there was no error on the part of the Learned Trial Court to
proceed with the suit by not transferring the same to Commercial Court.
However Hon’ble High Court at Calcutta in exercise of power under Section
18 of Commercial Courts Act 2015 framed directions namely ‘THE HIGH COURT AT
CALCUTTA COMMERCIAL COURTS PRACTICE DIRECTIONS 2021’ and clarified the
procedures to be followed by Commercial Court which includes procedure with
regard to Transfer.
Clause 4. Of the THE HIGH COURT AT CALCUTTA COMMERCIAL COURTS
PRACTICE DIRECTIONS, 2021 provides as follows:
4. Transfer of Pending Cases
1) Every suit, appeal or other proceeding pending before any Civil Court as
per the Bengal, Agra and Assam Civil Courts Act, 1887 or in the High Court
13immediately before the date of issuance of the appropriate Notification of the
pecuniary value in terms of Section 3(1A) of the Act, being a suit, appeal or other
proceeding the cause of action whereof is based and the valuation of the relief of
which is such that it would have been, if it had been filed after the commencement of
the Act, within the jurisdiction of the Commercial Division or Commercial Appellate
Division in the High Court or within the jurisdiction of the Commercial Courts or
Commercial Appellate Courts at the District Level, shall be transferred by the
Registry to the Commercial Division or the Commercial Appellate Division in the High
Court and/or by the Competent Authority at District Level to the Commercial Courts
or Commercial Appellate Courts at the District level, as the case may be.
2) The above provision for transfer shall not be applicable to suits, appeals
or other proceedings instituted before any Civil Courts as per the Bengal, Agra and
Assam Civil Courts Act, 1887 or in the High Court in its Ordinary Original Civil
Jurisdiction after the date of issuance of the appropriate Notification of the pecuniary
value in terms of Section 3(1A) of the Act.
Clause 9 of the said Directions provide as follows:
9. Suits, applications and other proceedings, improperly filed
1) The High Court or the District Court, as the case may be shall not,
subsequent to the date of issuance of the appropriate Notification of the pecuniary
value in terms of Section 3(1A) of the Act, receive, try or determine any suit involving
a commercial dispute of and above the specified value if the same is filed in its
Ordinary Original Civil Jurisdiction.
2) In the event any suit or other proceeding involving a commercial dispute
of and above the specified value is filed in its Ordinary Original Civil Jurisdiction
subsequent to the date of issuance of the appropriate Notification of the pecuniary
value in terms of Section 3(1A) of the Act, the High Court or the District Court, as the
case may be, shall on an application of either party, return the plaint or the
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application to the plaintiff on principles pari material with Order VII Rule 10 of the
Code.
3) The provisions of Chapter IIIA of the Act shall apply when the plaint,
returned as above, is filed before the Commercial Court or the Commercial Division
as the case may be.’
4) In the event of a suit or other proceeding which is barred in terms of
Clause 9(1) above, if neither party applies for the plaint or application to be returned,
the Court shall reject the plaint or application, as the case may be.
Thus the above Directions are to be followed by Commercial Courts.
The ‘Directions’ came into force on 13th October 2023. In terms of clause 4
of the said Direction suits pending in Court prior to issuance of notification of the
pecuniary value in terms of Section 3(1A) of the Commercial Courts Act 2015 shall be
transferred.
As the instant suit C.S. 220 of 2019 was disposed by Judgment and Decree
dated 24-05-2023 and ‘THE HIGH COURT AT CALCUTTA COMMERCIAL COURTS
PRACTICE DIRECTIONS 2021’ came into force on 13th October 2023, there is no
error on the part of the Trial Court to adjudicate the Suit by not transferring the
same as the said Directions was not framed when decree was passed. Thus the
Decree dated 24-03-2023 cannot be said to be a nullity.
This application of the Judgment Debtors fails and the same is dismissed.
However as the suit in which the decree passed involves Commercial
disputes and the decree was ex-parte this Court is of the view that the parties should
be granted opportunity to settle the dispute by referring the case to mediation. Thus
there will be a stay of this execution case till 28/10/2025.
The parties are referred to mediation for settlement. MS. Kalpana Bej
Learned Advocate is appointed as Mediator. Learned Mediator is requested is see that
the dispute is settled and file report on or before 28/10/2025.
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Fix 28/10/2025 for Report of the Mediator.
Let a copy of this Order be sent to the Secretary High Court Mediation
Committee.
(BISWAROOP CHOWDHURY, J.)
A.Bhar(P.A)
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