Jammu & Kashmir High Court
Bank Of India Through Its Chief Manager & … vs M/S Jhelum Infra Projects Pvt. Ltd. & Ors on 7 March, 2025
Bench: Rajnesh Oswal, Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
MA No. 30/2024
Case:- CM No. 6561/2024
CM No. 5341/2024
Bank of India through its Chief Manager & Ors.
.....Appellant(s)/Petitioner(s)
Through: Mr. R.K.Gupta, Sr. Advocate with
Mr. Jugal Kishore Gupta, Advocate
Vs.
M/s Jhelum Infra Projects Pvt. Ltd. & Ors.
..... Respondent(s)
Through: Mr. Parveen Kapahi, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
1. A pending miscellaneous appeal MA No.30/2024,
preferred in term of Order 43 Rule 1(r) of the Code of Civil
Procedure, 1908 (in short ‘CPC‘), has come to be posted
before us as being the Commercial Appellate Division,
Jammu Wing by an order dated 21.10.2024 of the learned
Registrar Judicial, Jammu.
2. Posting of the matter before us by the Registrar Judicial,
Jammu in terms of said order dated 21.10.2024 is
occasioned by an order dated 16.10.2024 of the Hon’ble
Single Bench who opined that the learned Registrar
Judicial, Jammu needs to consider if the present
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miscellaneous appeal required to be listed before the
Commercial Appellate Division or to continue to be dealt
with and heard by the Single Bench in routine exercise of
appellate jurisdiction under Order 43 Rule 1(r) CPC.
3. The present miscellaneous appeal is addressed against an
impugned order dated 23.05.2019, read with an order
dated 18.07.2024, passed by the court of learned
Additional District Judge Bank Cases, (Commercial Court),
Jammu in exercise of power under Order 39 Rule 1 & 2
CPC in a civil suit preferred by the respondents against the
appellants.
4. When this matter came to be posted for the first time
before us, Mr. Parveen Kapahi, learned counsel for the
respondents, came forward to maintain a preliminary
objection that the hearing of the miscellaneous appeal
ought to have remained before the Single Bench and that
too when it was part heard by the Single Bench. Mr.
Parveen Kapahi, learned counsel for the respondents
submits that posting of the matter before the Commercial
Appellate Division, Jammu wing is unwarranted as the
subject matter appeal does not originate from a civil suit of
a commercial dispute, and further that the impugned order
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dated 18.07.2024 passed by the learned Additional District
Judge Bank Cases (Commercial Court), Jammu is not to
be reckoned as an order of a Commercial Court under the
5. Mr. R.K.Gupta, learned senior counsel for the appellants,
on the other hand submits that the appellants are
interested in hearing of their cause in appeal, be that by
the Single Bench before whom the matter was originally
laid and argued in part or by the Commercial Appellate
Division, Jammu wing under the Commercial Courts Act,
2015, as the continuing operation of the impugned
temporary injunction order dated 18.07.2024 is working
prejudice to the right of recovery of the appellant No.1
against the respondents for a huge loan liability resting
upon the respondents as being the defaulting borrowers.
6. In order to take a call as to whether the present
miscellaneous appeal needs to be heard by us in our
jurisdiction as Commercial Appellate Division, Jammu wing
or to let the matter be heard and disposed of by the Single
Bench, we would have to examine as to whether the suit
filed by the respondents relates to commercial dispute as
envisaged under the Commercial Courts Act, 2015, which
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ought to have been originally instituted before the
Commercial Court, Jammu instead of being filed at first
instance before the court of learned 2nd Additional District
Judge, Jammu as a routine civil suit under section 9 of
CPC, wherefrom the suit came to be transferred to the
learned Additional District Judge Bank Cases (Commercial
Court), Jammu, upon a purported reference made by the
court of learned 2nd Additional District Judge, Jammu vide
its order dated 19.07.2022 to the Principal District Judge,
Jammu who in turn, vide an order dated 02.08.2022,
assigned the civil suit of the respondents to the learned
Additional District Judge, Bank Cases (Commercial Court),
Jammu.
7. Initially it is the court of learned 2nd Additional District
Judge, Jammu which, vide an order dated 23.05.2019, had
granted an ex-parte ad-interim injunctory direction in
favour of the respondents/plaintiffs by temporarily
restraining appellant No.1 from revoking the OTS and
which ex-parte ad-interim injunction came to be made
absolute by the transferee court of learned Additional
District Judge, Bank Cases (Commercial Court), Jammu in
terms of the order dated 18.07.2024 which has become
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the subject matter of challenge in the present
miscellaneous appeal maintained under Order 43 Rule 1(r)
CPC.
8. Given the fact that Mr. Parveen Kapahi, learned counsel
for the respondents/plaintiffs submits that the suit filed by
the respondents/plaintiffs is not of a commercial dispute
nature and Mr. R.K.Gupta, learned senior counsel for the
appellants, submits that the appellants are interested in
adjudication of the civil miscellaneous appeal without any
further loss of time, be it by the Single Bench, before
whom the matter was part heard, or even by the
Commercial Appellate Division, Jammu wing, we are of the
confirmed opinion that this is not a fit case wherein an
exercise can be invested from our end to examine as to
whether the civil suit of the respondents/plaintiffs is the
one which qualifies to be a civil suit of a commercial
dispute or not, and, therefore, consider it fit to refer the
matter back to the Single Bench having part heard the
matter in exercise of the appellate jurisdiction of the High
Court in terms of the order 43 Rule 1(r) CPC read with
Civil Courts Act, Svt. 1977.
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9. In fact the learned Registrar Judicial, Jammu, ought to
have actually posted the matter before the Single Bench
for judicial side reference as to whether the matter needs
to be posted before the Commercial Appellate Division or
to be continued to be heard by the Single Bench in
exercise of appellate jurisdiction under the Civil Courts Act,
Svt. 1977 read with Order 43 Rule 1(r) CPC.
10. Be that as it may. We, therefore, direct the listing of
the present miscellaneous appeal for adjudication before
the learned Single Bench, having heard the matter in part,
on 02.04.2025.
(RAHUL BHARTI) (RAJNESH OSWAL)
JUDGE JUDGE
SRINAGAR
07.03.2025
Muzammil. Q (Secy)