Calcutta High Court
Sudershan Prasad Bagaria And Anr vs Harshvardhan Khemka And Ors on 26 March, 2025
Author: Soumen Sen
Bench: Soumen Sen
OCD-2
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL APPELLATE DIVISION
ORIGINAL SIDE
APOT/63/2025
WITH
RVWO/31/2024
CS-COM/384/2024
IA NO: GA-COM/1/2025
SUDERSHAN PRASAD BAGARIA AND ANR.
VERSUS
HARSHVARDHAN KHEMKA AND ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
AND
The Hon'ble JUSTICE SMITA DAS DE
Date : 26th March, 2025.
Appearance:
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Satadeep Bhattacharya, Adv.
Ms. Yukti Agarwalla, Adv.
Mr. Indradeep Basu, Adv.
...for the appellants
Mr. Jishnu Saha, Sr. Adv.
Mr. Amit Kr. Nag, Adv.
Mr. Partha Banerjee, Adv.
Ms. Ranjabati Ray, Adv.
...for the respondents
Soumen Sen, J. (Oral):
1. The appeal is arising out of an order by which the learned Single
Judge has allowed a review application by modifying its earlier
order of transferring the suit to the Commercial Division by
substituting it with return of the plaint.
2. A fine distinction is raised by the learned counsel for the parties
with regard to two words namely “transfer” and “return” of plaint in
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the event the court deciding the suit finds that it does not have the
jurisdiction.
3. The learned Single Judge in the instant matter, instead of
transferring the suit has returned the plaint to be presented before
the appropriate court, namely from the Commercial Division to
ordinary original civil jurisdiction. Incidentally His Lordship had
the determination to hear both the suits.
4. Mr. Abhrajit Mitra, learned senior counsel appearing on behalf of
the appellant petitioner, has submitted that the learned Single
Judge has failed to take into consideration that there is a
Commercial Division of the High Court constituted under Section 4
of the Commercial Courts Act, 2015 and in the event the Hon’ble
Judge in deciding the suit ultimately finds that it is not of a
commercial nature, the suit can be transferred to the Non-
Commercial Division and the question of returning the plaint does
not arise in such case.
5. Mr. Mitra, has relied upon a Division Bench order and two Single
Bench decisions, namely, Satyavama Commotrade Private Ltd. and
others vs. Global Motocorp LLP and Another (Order dated
11.11.2019 in FMA 1522 of 2019), Ladymoon Towers Private
Limited vs. Mahendra Investment Advisors Private Limited reported
in 2021 SCC OnLine Cal 4240 and Sherawali Developers LLP vs.
Majesty Homes and Ors. (MANU/DE/3640/2024) to argue that the
proper course would be to transfer the suit from one Division to the
other Division without any requirement for returning the plaint to
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the plaintiff for presenting it to an appropriate Court. It is more so
in view of the fact that the High Court itself is exercising the
Commercial and Non-Commercial Division and it is a mere
formality.
6. Mr. Jishnu Saha, learned senior counsel appearing on behalf of the
respondent, has submitted that in view of Section 8, this
application may not be maintainable. In any event and in any view
of the matter, if the Commercial Court is of the opinion that the
nature of the dispute is non-commercial, it can only return the
plaint to the plaintiff to present it before the appropriate Court as
the Commercial Courts Act, 2015 does not confer any power of
transfer upon the said Court.
7. While hearing the matter, we have brought to the attention of the
learned counsel for the parties a Three-Judge Bench decision of the
Hon’ble Supreme Court in EXL Careers And Another vs. Frankfinn
Aviation Services Private Limited reported in (2020) 12 SCC 667.
The said decision was passed in connection with an application
under Order VII Rule 10 of the Code of Civil Procedure. The
consequences of return of plaint have been explained in the said
judgment. The said judgment was found to be relevant with regard
to the fate of any interim order that the plaintiff had been enjoying
prior to the direction for return of the plaint.
8. The Commercial Courts Act, 2015 is a complete code in itself and
has an overriding effect by virtue of Section 21 of the Act.
Provisions that are inconsistent with any other law would have no
4
effect. The Code of Civil Procedure was amended in its application
to a commercial dispute with a specified value in the manner as
specified in the schedule. The transfer of suit or application is
contemplated under Section 15 of the Commercial Courts Act,
2015.
9. The power of transfer of a suit, appeal or other proceeding is
traceable under Section 24 of the Code of Civil Procedure. The said
section confers a general power to transfer, withdraw and transfer
suits, appeals or other proceedings at any stage on the application
of the party and in this regard the power of the High Court and
District Judge are concurrent. The High Court in addition to
Section 24 CPC in exercise of power under Clause 13 of the Letters
Patent can also transfer proceeding unto itself. The cardinal
principle for exercising of power under Section 24 CPC is the
convenience or inconvenience of the parties.
10. The said power shall not be confused with the power of transfer
under Section 15 of the Commercial Courts Act which
contemplates transfer of pending proceedings of suits which
conform to the definition of “commercial disputes” under Section
2(1)(C) of the Commercial Courts Act, 2015 upon establishment of
the Commercial Courts after being duly notified under Section 3 of
the Act. The Constitution of Commercial Division of High Court is
in terms of Section 4. It reads as follows:
5
“4. Constitution of Commercial Division of High Court.–(1)
In all High Courts, having1 [ordinary original civil jurisdiction], the
Chief Justice of the High Court may, by order, constitute
Commercial Division having one or more Benches consisting of a
single Judge for the purpose of exercising the jurisdiction and
powers conferred on it under this Act.
(2) The Chief Justice of the High Court shall nominate such
Judges of the High Court who have experience in dealing with
commercial disputes to be Judges of the Commercial Division”
11. The transfer of proceedings of pending cases is provided in
Section 15. For convenience the said Section is reproduced below:
“15. Transfer of pending cases.–(1) All suits and applications,
including applications under the Arbitration and Conciliation Act,
1996 (26 of 1996), 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.
(2) All suits and applications, including applications under the
Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a
commercial dispute of a 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 or the Commercial Court shall be
transferred either under sub-section (1) or sub-section (2).
(3) Where any suit or application, including an application under
the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to
a commercial dispute of Specified Value shall stand transferred to1
Subs. by s. 8, ibid., for “ordinary civil jurisdiction” (w.e.f. 3-5-2018).
6
the Commercial Division or Commercial Court under sub-section
(1) or sub-section (2), the provisions of this Act shall apply to those
procedures that were not complete at the time of transfer.
(4) The Commercial Division or Commercial Court, as the case
may be, may hold case management hearings in respect of such
transferred suit or application in order to prescribe new timelines
or issue such further directions as may be necessary for a speedy
and efficacious disposal of such suit or application in accordance2
[with Order XV-A] of the Code of Civil Procedure, 1908 (5 of 1908):
Provided that the proviso to sub-rule (1) of Rule 1 of Order V of the
Code of Civil Procedure, 1908 (5 of 1908) shall not apply to such
transferred suit or application and the court may, in its discretion,
prescribe a new time period within which the written statement
shall be filed.
(5) In the event that such suit or application is not transferred in
the manner specified in sub-section (1), sub-section (2) or sub-
section (3), the Commercial Appellate Division of the High Court
may, on the application of any of the parties to the suit, withdraw
such suit or application from the court before which it is pending
and transfer the same for trial or disposal to the Commercial
Division or Commercial Court, as the case may be, having
territorial jurisdiction over such suit, and such order of transfer
shall be final and binding.” (emphasis supplied)
12. In this regard, reference may be made to Rule 4 and 5 of the
High Court at Calcutta Commercial Courts Practice Direction, 2021
duly notified on 13th October, 2023:
“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
immediately before the date of issuance of the appropriate
Notification of the pecuniary value in terms of section 3(1A) of the
7Act, 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
Court 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. (emphasis
supplied)
5. Transfer of Records. (1) The Registry or the Competent
Authority at District Level, as the case may be, will scrutinize the
suits, appeals and other proceedings pending in the High Court or
in the Courts subordinate to the High Court and shall identify the
suits, appeals and other proceedings which relate to commercial
disputes as defined in the Act and are of or above the specified
value as notified by the State Government in exercise of powers
conferred by sub-section (1A) of section 3 of the Act.
(2) Upon such identification of the pending suits, appeals and
other proceedings as defined in Clause 4(1) above, the Registry or
the Competent Authority at District Level shall cause the transfer
of all records of and relating to such identified suits, appeals and
other proceedings to the Commercial Division or Commercial2
Subs. For “with Order XIV-A” by Act 28 of 2018, S.14 (w.r.e.f. 3-5-2018)
8Appellate Division in the High Court or to the Commercial Courts
or Commercial Appellate Courts at the District Level, as the case
may be”. (emphasis supplied)
13. In juxtaposition to the power conferred under Section 24 of the
CPC and Section 15 of the Commercial Courts Act, 2015 the power
of the court to return the plaint is to be considered. The power of
the court to return the plaint is not similar to the power exercised
under Section 24 of the CPC.
14. Section 24 CPC was amended by the CPC amendment Act, 104
of 1976 to include Sub-Section 5. The said Sub-Section 5 is
reproduced below:
“[(5) A suit or proceeding may be transferred under this section
from a Court which has no jurisdiction to try it.”
15. The amendment was made as there was conflict of decisions
with regard to the question whether section 24 applied in relation
to transfer of a suit from a court which had no jurisdiction
following the view of the Andhra Pradesh High Court in Thirumala
v. Mulk Luri, AIR 1970 AP 174. However, the transfer must be to
a competent court. In Macnill vs. Mouhsen AIR 1985 Cal 460 the
Calcutta High Court for the ends of justice in exercise of the
jurisdiction conferred by Section 24 directed the suit to be
transferred to the district court having jurisdiction over the land as
the plaint could not be returned under Order 7 Rule 10 for
presentation before proper court because such provision would not
apply to a chartered High Court.
9
16. In S Chandra Sekhar Rao v. AIR 2005 NOC 88: 2004 AIHC
409 AP, it was held that where defendant takes a plea that the
court has no territorial jurisdiction to try the suit, the suit may be
transferred to the court having jurisdiction and it is not necessary
to return the plain to the plaintiff for production before proper
court. The said provision would not however apply in the instant
case. Section 24 does not confer a power on the learned Single
Judge to make an order of transfer to a coordinate bench in
exercise of power under Section 24 of the CPC. The court could
have exercised jurisdiction only under section 15 of the commercial
courts act 2015 in respect of pending cases.
17. Order 7 Rule 10 of the CPC provides for return of a plaint where
a court is unable to entertain it for want of jurisdiction. It can be
territorial, pecuniary or other causes. If the court is itself satisfied
that it has no jurisdiction to try, receive and decide a cause, it is its
duty to suo motu in exercise of power Order 7 Rule 10 CPC to
return the plaint to be presented before the appropriate court.
Where the court has no jurisdiction over the subject matter of the
suit it has to return the plaint. (See. Athmanathaswami
Devasthanam v. K. Gopalaswami Aiyangar, AIR 1965 SC 338).
In such situation, dismissal of the suit would be unwarranted.
18. In the instant case both the parties have agreed that it is not a
“commercial dispute” coming within the purview of Section 2(1)(c)
of the Commercial Courts Act, 2015. The court has also
independently come to a finding that it is not a commercial suit. In
10
such a situation, the plaint is required to be returned to the
plaintiff to be presented it before the competent court. This power
is exercised under Section 151 of CPC for the ends of justice as
Order 7 Rule 10 is not applicable to Chartered High Court in view
of Order XLIX Rule 3 of CPC. The plaint shall be deemed to have
been filed before a court not having the jurisdiction over the
subject matter and the only mode by which a party can continue
with the cause is to pray for return of the plaint so as to enable the
plaintiff to present it before the appropriate Court. If at any time it
appears to the court on the averments in the plaint itself that it
has no jurisdiction either pecuniary or territorial or over the
subject matter the court can suo motu direct return of the plaint.
In the instant case, continuation of the suit in the Commercial
Division would be before a Court without having a jurisdiction to
decide the suit as it is to be treated as an ordinary suit.
Consequently a decree passed would be a nullity. The Commercial
Division cannot decide any “commercial dispute” not coming within
the purview of Section 2(1)(c) of the Commercial Dispute Act, 2015.
Special procedures have been laid down for deciding a commercial
dispute.
19. The return of the plaint cannot be equated with the power to
transfer the suit or application as the case may be. It is not akin to
a power of the Chief Justice or a District Judge to allocate work to
the various judges including transfer of a case. The return of plaint
is a judicial order. The suit could not have been transferred in
11
exercise of the statutory power under Section 15 of the Act. The
suit was not pending on the date the Commercial Division of the
High Court become operational. For a suit to be transferred after it
is instituted after the Commercial Division is constituted and made
functional it can only be in exercise of power under Order 7 Rule
10 of the CPC and for a Chartered High Court under Section 151 of
CPC.
20. The learned Single Judge initially had ordered transfer on a
misreading of Section 15 of the Commercial Courts Act. The Court
can exercise jurisdiction only in terms of conferment of jurisdiction
as bestowed by the statute and the roster as approved by the
Hon’ble the Chief Justice and not otherwise. Any order passed
disregarding such jurisdiction would be void ab initio. The learned
Single Judge realising that it had no power to transfer under the
provision of the Commercial Courts Act, 2015 has ordered return
of the plaint to be presented under the appropriate Court and such
power deemed to have been exercised under the inherent power.
21. On returning the plaint, it has to follow the procedure of the
Original Side Rules of the court. The procedural formalities are
different, more stringent in Commercial Division as compared to
the procedure under the existing Code of Civil Procedure. None of
the decisions relied upon by the parties have dealt with the said
issue at all. The parties cannot by agreement confer jurisdiction on
a Court. However, it cannot be overlooked that a Commercial
Division has no independent existence and is closely connected
12
with ordinary original civil jurisdiction. Where the High Court is
having ordinary original civil jurisdiction The Chief Justice of the
High Court may by order constitute Commercial Division having
one or more Benches to exercise jurisdiction under the Act of 2015.
Thereby it is clear that Commercial Division is an extended arm or
another wing of the ordinary original civil jurisdiction of the High
Court. In such circumstances a plaint originally presented could be
transferred in exercise of power to the Commercial Division which
is in fact a wing of the very same ordinary original civil jurisdiction
of the High Court and vice-versa. The power of the court to order a
conversion in appropriate case to commercial division or vice versa
could be exercised in absence of any prohibition. The issue is one
of nomenclature.
22. This discussion is for the purpose of deciding the extension of
the interim order till it is represented before the Commercial
Division.
23. The principal grievance of the appellant appears to be the fate of
the interim orders that the plaintiff was enjoying at the time of the
transfer. In EXL Careers (Supra), it was held that on presentation
after return, the suit has to proceed de novo before the competent
Court even if evidence of parties already stood concluded and the
matter fixed for final argument before the Court which returned the
plaint.
24. In the instant case, we find that the plaintiff has been enjoying
an interim order. On returning of the plaint, the pleadings filed in
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the Commercial Division can be considered as deemed to have
been filed in the ordinary original jurisdiction for the purpose of
interim relief and other reliefs as the provisions of the Original Side
Rules shall now apply in deciding the suit and the applications. It
is really a matter of conversion. It is now required to be heard by
the Hon’ble Judge in the Non-Commercial Division.
25. The defendant has already filed the written statement and there
is no requirement to serve a fresh writ of summons upon the
defendant. The learned Single Judge is requested to consider the
pleadings already filed in relation to injunction and summary
judgment and decide the issues on the basis of such pleadings. The
parties shall not be prejudiced by such direction. The interim order
the plaintiff was enjoying stands vacated by reason of the return of
the plaint shall continue for a period of four weeks as we find the
refusal to extend the same would cause serious prejudice.
26. On the plaint being represented the parties shall be at liberty to
file additional pleadings if necessary. The pleadings filed in the
Commercial Division can be considered afresh upon the suit being
presented before the learned Single Judge.
27. The affidavit of service and the notice of motion filed are taken
on record.
28. The plaint shall be presented within three weeks from date.
29. In view of the return of the plaint, the suit shall now be
assigned a new number. Nomenclature of the plaint and all the
14
pending applications shall be changed in accordance with the
Rules of the Original Side of the High Court.
30. The appeal and the application are disposed of.
(SOUMEN SEN, J.)
(SMITA DAS DE, J.)
bp/R.Bhar
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