Calcutta High Court
Kedarnath Tradecomm Llp & Ors vs Mayank Agarwal & Ors on 14 July, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
A.P.O. No. 41 of 2024
With
AP/850/2022
IA No GA/2/2023
GA/3/2024
GA/4/2024
GA/5/2025
GA/6/2025
GA/7/2025
Kedarnath Tradecomm LLP & Ors.
Vs.
Mayank Agarwal & Ors.
With
A.P.O. No. 42 of 2024
With
AP/851/2022
IA No GA/2/2023
GA/3/2024
GA/4/2024
GA/5/2025
GA/6/2025
GA/7/2025
Digitally signed
SACHIN byKAHAR
SACHIN
KAHAR Date: 2026.07.14
13:34:43 +05'30'
2
Omkar Tradecomm LLP & Ors.
Vs.
Mayank Agarwal & Ors.
With
OCOT/3/2024
Omkar Tradecomm LLP & Ors.
Vs.
Mayank Agarwal & Ors.
With
OCOT/4/2024
Kedarnath Tradecomm LLP & Ors.
Vs.
Mayank Agarwal & Ors.
With
OCOT/5/2024
Kedarnath Tradecomm LLP & Ors.
Vs.
Mayank Agarwal & Ors.
For the Appellant : Mr. Dhruba Ghosh, Sr. Adv.
In APO/42/2024 & Mr. Ankan Rai, Adv.
OCOT/3/2024 Ms. Ajeya Chowdhury, Adv.
Mr. Ayan Rai, Adv.
Mr. Ratnesh Kr. Rai, Adv.
Ms. Nabanita Manna, Adv.
For the Appellant in :Mr. S.N. Mookherjee, Sr. Adv.
OCOT/4/2025 Mr. Yash Singhi, Adv.
Mr. Dhruv Chada, Adv
Mr. Ratnesh Kr. Rai, Adv.
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For the Respondent Nos 1 & 2 : Mr. Sakya Sen, Sr. Adv.
In APO/42/2024 Mr. Chayan Gupta, Adv.
& OCOT/3/2024 Mr. Tanay Agarwal, Adv
Mr. Chitresh Saraogi, Adv.
Ms. Payel Mishra, Adv
For the Respondent Nos 1 & 2 : Mr. Krishnaraj Thaker, Sr. Adv.
In APO/41/2024, Ms. Suchismita Ghosh Chatterjee, Adv.
OCOT/4/2024 Mr. Tanay Agarwal, Adv
& OCOT/5/2024 Mr. Chitresh Saraogi, Adv.
Ms. Payel Mishra, Adv.
Hearing Concluded on : July 1, 2026
Judgement on : July 14, 2026
DEBANGSU BASAK, J.:-
1. Two appeals and three cross objections have been taken up
for analogous hearing as they involve similar issues are between the
same natural persons and emanate out of two proceedings in respect
of two partnership firms where, the natural persons are the partners.
2. Two partnership firms and their partners are involved in the
two appeals and the three cross objections. The two partnership
firms are Kedarnath Tradecomm LLP and Omkar Tradecomm LLP.
3. Kedarnath Tradecomm LLP and some of its partners have
filed APO No. 41 of 2024 assailing the judgment and order dated
June 15, 2023 passed in AP No. 850 of 2022.
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4. Omkar Tradecomm LLP and some of its partners have filed
APO No. 42 of 2024 assailing the judgment and order dated June 15,
2023 passed in AP No. 851 of 2022.
5. The respondent Nos. 1 and 2 in APO No. 42 of 2024 have
filed a cross objection being OCOT 3 of 2024 in such appeal.
6. Respondent No. 2 in APO No. 41 of 2024 has filed a cross
objection in such appeal.
7. The respondent No. 1 in APO No. 41 of 2024 has filed a cross
objection being OCOT 5 of 2024 in the appeal.
8. Two proceedings under Section 9 of the Arbitration and
Conciliation Act, 1996 against two partnership firms have resulted in
two impugned judgments and orders which are the subject matter of
the two appeals and the three cross objections.
9. Some of the partners along with Kedarnath Tradecomm LLP
had filed a petition under Section 9 of the Act of 1996 which was
registered as AP No. 850 of 2022. Some of the partners along with
the partnership firm Omkar Tradecomm LLP had filed a petition
under Section 9 of the Act of 1996 being AP No. 851 of 2022.
10. Petitioners in A.P No. 850 of 2022 and AP No. 851 of 2022
had filed those proceedings on December 20, 2022 in the non-
Commercial Division of this Hon’ble Court.
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11. By two several judgments and orders both dated June 15,
2023, learned Single Judge has disposed of both AP No. 850 of 2022
and AP No. 851 of 2022.
12. By both the impugned judgments and orders, learned Single
Judge has vacated the ad interim order of injunction and dismissed
the petition under Section 9 of the Act of 1996 with costs on the
ground of the petitioners in the Section 9 petition having suppressed
material facts.
13. Both the proceedings under Section 9 of the Act of 1996
involve disputes between partners of two limited liability partnership
firms. The subject matter of the two proceedings under Section 9 of
the Act of 1996 falls within the meaning of commercial disputes as
defined in Section 2(1)(c)(xv) of the Commercial Courts Act, 2015.
14. Respondents in the two appeals and the cross objectors have
taken up preliminary point of maintainability of the proceedings
before the non-Commercial Division. Since the preliminary objection
is the maintainability of the proceeding has been taken up, we
propose to dispose of the same before entering into the merits of the
appeal.
15. Learned Senior Advocate appearing for the appellants has
referred to the timeline of the events occurring subsequent to the
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filing of the petition under Section 9 of the Act of 1996. He has
pointed out that, on December 20, 2022, the appellants had filed
under Section 9 of the Act of 1996 in the non-Commercial Division.
On such date the learned Single Judge had the determination to
take up commercial matters.
16. Learned Senior Advocate appearing for the appellants has
contended that on January 30, 2023, the learned Single Judge
passed the ex parte order. On such date learned Single Judge had
the determination to take up commercial matters. On February 20,
2023, the respondent nos. 1 and 2 had filed the application for
vacating the order dated January 30, 2023 in the non-Commercial
Division. On such date, learned Single Judge had the determination
to take up the commercial matters.
17. Learned Senior Advocate appearing for the appellants has
pointed out that on February 27, 2023 when, learned Single Judge
passed the orders for treating application for vacating as the
affidavit-in-opposition under Section 9 of the Act of 1996 and, when
final hearing took place, learned Single Judge had determination to
take up commercial matters.
18. Learned Senior Advocate appearing for the appellants has
contended that, on June 15, 2023 when the learned Single Judge
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passed the judgment and order impugned herein, the learned Single
Judge did not have determination to take up matters pertaining to
either commercial division or non-commercial division.
19. Learned Senior Advocate appearing for the appellants has
contended that, the order dated June 15, 2023 passed by the
learned Single Judge, in view of Sections 7 and 10 of the Act of 2015
is a nullity. In support of such contention, learned Senior Advocate
appearing for the appellants has relied upon 2026: CHC – 03:120-
DB (Starlift Services Pvt Ltd Vs. Shyama Prasad Mookerjee Port,
Kolkata) and 2026 SCC OnLine Cal 6425 (Bharat Heavy
Electricals Limited Vs. Optimal Power Synergy India Pvt Ltd.).
He has contended that, the impugned order was passed before
coming into effect the notification dated November 11, 2025.
20. Learned Senior Advocate appearing for the appellants has
contended that, the ex parte ad interim order dated January 30,
2023 was not a nullity in view of the learned Judge passing such
order had the determination for commercial matter on that date. He
has relied upon the decision of the Supreme Court dated April 20,
2026 in Civil Appeal No. 006873 of 2026 [ SLP (C) No. 811 of
2026 (Shri Balaji Industrial Engineering Ltd vs. Steel Authority
of India Ltd.).
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21. Learned Senior Advocate appearing for the respondents in
the appeals has contended that, the disputes between the parties
emanate out of the supplementary agreements to a LLP partnership
agreement dated March 19, 2021. He has contended that, the
disputes between the parties are commercial disputes as defined
under Section 2(1)(c)(xv) of the Act of 2015.
22. Learned Senior Advocate appearing for the respondents in
the appeals has contended that, the appeal is not maintainable in
the non-commercial division in view of the lack of subject matter
jurisdiction. He has pointed out that the Specified Value of the
Commercial Division of this Hon’ble High Court was notified on
November 15, 2018 and thereafter on March 20, 2020.
23. Learned Senior Advocate appearing for the respondents has
contended that, the two proceedings under Section 9 of the Act of
Arbitration and Conciliation Act, 1996 filed by the appellants being
AP No. 850 of 2022 and AP No. 851 of 2022 were not filed in the
Commercial Division of the High Court. The appellants had filed the
petitions under Section 9 of the Act of 1996 in the non-Commercial
Division notwithstanding the subject matter of the two petitions
being Commercial disputes within meaning of the Act of 2015 and
value of the reliefs being in excess of the prescribed Specified Value.
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According to him, since the filing itself was bad in law, such defect
cannot be cured as, the Court before which the proceeding were filed
had, lacked subject matter jurisdiction.
24. Elaborating on his contention of lack of subject matter
jurisdiction, learned Senior Advocate appearing for the respondents
in the appeal referred to Section 15 of the Act of 2015. He has
contended that, the transfer of pending proceedings provided under
Section 15 of the Act of 2015 cannot be invoked for transfer of
proceedings instituted after the notification prescribing the Specified
Value. He has referred to Rule 4(2) of the Practice Directions framed
by the High Court pursuant to Section 18 of the Act of 2015 in this
regard. He has contended that such Practice Directions have binding
legal force.
25. Learned Senior Advocate appearing for the respondents has
contended that, the principles of Rule 9(1) of the Practice Directions
would apply to arbitration applications. He has referred to Rule 9(4)
of the Practice Directions and contended that, if proceeding involving
Commercial disputes were wrongly filed in the non-Commercial
Division, the Court would return the pleadings if an application for
the same was made or reject the application if no application for
return of plaint was made. He has referred to 2021 SCC OnLine Cal
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1457 (Laxmi Polyfab Pvt Ltd. Vs. Eden Reality Ventures Pvt.
Ltd. & Anr) in this regard.
26. Learned Senior Advocate appearing for the respondents has
contended that, on a combined reading of the Act of 2015 and the
Practice Directions introduced thereunder, the appeal has to be
returned to the appellants for filing in the Commercial Division.
However, the same would not cure the defect of wrong filing of the
Section 9 proceedings at the first instance. Consequently, the appeal
has to be dismissed.
27. Learned Senior Advocate appearing for the respondents has
contended that, since the proceedings under Section 9 of the Act of
1996 were filed after the notification prescribing the Specified Value,
there is no provision of transfer of the same. He has contended that,
principles of Order VII Rule 10 of the Code of Civil Procedure, 1908
cannot be applied since, the Court in which the proceedings were
filed did not have subject matter jurisdiction to rule on the same. He
has contended that, there is a difference between return and transfer
of proceedings. He has referred to Lakshmi Polyfab Pvt Ltd.
(supra) in this regard.
28. Learned Senior Advocate appearing for the respondents has
submitted that, the appellants secured ex parte ad interim order on
11
January 30, 2023. Respondents had applied for vacating of the ex
parte ad interim order by way of GA IA No. 1 of 2021. In such
application, respondents had contended that the disputes were
commercial disputes within the meaning of the Act of 2015 and that,
Section 9 proceedings were not maintainable in non-Commercial
Division. He has pointed out that, in the affidavit-in-opposition the
appellants had denied such contention of the respondents.
According to him, therefore, the appellants had been put on notice
with regard to the issue of lack of jurisdiction. Despite the appellants
being put on notice, the appellants had proceeded with the matter
before a Court which did not have subject matter jurisdiction over
the same.
29. Learned Senior Advocate appearing for the respondents has
contended that, the learned Trial Judge has dismissed Section 9
proceedings with costs after coming to the conclusion that the
appellants had relied upon forged and fabricated documents and had
secured the ex parte ad interim order by misleading the Court.
30. Learned Senior Advocate appearing for the respondents has
contended that, none of the judgments relied upon on behalf of the
appellants are applicable in the facts and circumstances of the
present case. In such judgments, the original proceeding was filed
12
before the notification of the Specified Value. Therefore, such
proceedings were capable of being transferred under Section 15 of
the Act of 2015 whereas, in the instant case the proceedings under
Section 9 of the Act of 1996 could not have been transferred.
31. Appellants had filed two separate petitions under Section 9 of
the Act of 1996 being AP No. 850 of 2022 and AP No. 851 of 2022 in
the Non-commercial Division of the Hon’ble High Court at Calcutta
on December 20, 2022.
32. Learned Single Judge had passed an ex parte order dated
January 30, 2023 in both the proceedings. The respondents Nos. 1
and 2 had filed an application dated February 2, 2023 for vacating of
the ex parte ad interim order dated January 30, 2023.
33. The two petitions under Section 9 of the Act of 1996 as well
as the two vacating applications had been heard by the learned
Single Judge and hearing in respect thereof were concluded with the
judgment therein being reserved on May 11, 2023.
34. Between the date when, the petitions under Section 9 of the
Act of 1996 had been filed that is on December 20, 2022 and the
date of the judgments being reserved on May 11, 2023, the learned
Single Judge had determination to take up commercial matters.
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35. Learned Single Judge had passed the impugned judgment
and order on June 15, 2023 dismissing the petitions under Section 9
of the Act of 1996 after holding that the petitioners therein were
guilty of relying upon forged and fabricated documents to obtain the
interim order. Learned Single Judge has also awarded costs.
36. On the date when, the impugned judgment and order was
pronounced by the learned Single Judge, the Court did not have
determination over commercial matters.
37. The contesting parties in the two appeals and the three cross
objections have in unison contended that, the impugned judgment
and order dated June 15, 2023 is a nullity in view of lack of
jurisdiction. Divergence, however, between the contesting parties is
with regard to the validity and legality of the institution of the
proceedings under Section 9 of the Act of 1996 as also the orders
that had been passed from January 30, 2023 till May 11, 2023.
38. According to the appellants, since for the period between
December 20, 2022 when, the two petitions under Section 9 of the
Act of 1996 were filed and May 11, 2023 when the judgments in the
two petitions were reserved, the learned Single Judge had
determination over commercial matters, therefore, filing in the Non-
Commercial Division was immaterial in view of the ratio laid down
14
Shri Balaji Industrial Engineering Ltd. (supra). Such situation
had continued till May 11, 2023 and therefore, there was no defect
either in filing or in the orders passed by the learned Trial Judge till
May 11, 2023.
39. According to the respondents Nos. 1 and 2, since, the filing of
the proceedings under Section 9 of the Act of 1996 were made before
the Non-Commercial Division and since the Non-Commercial
Division of the High Court did not have subject matter jurisdiction,
filing of the proceedings, all consequential steps taken including the
orders passed therein are a nullity.
40. Parties have agreed that the subject matter of the two
petitions under Section 9 of the Act of 1996 was the partnership
firms and that subject matter fell under Section 2(1)(c)(xv) of the Act
of 2015. Independent of such agreement, we find that the subject
matter of the disputes and the value of such disputes involved in the
petitions under Section 9 of the Act of 1996, had fallen within the
ambit of the Commercial Division of this Hon’ble Court.
41. After the Act of 2015 had come into force, the first
notification constituting the Commercial Division and Commercial
Appellate Division of the High Court at Calcutta, was issued on July
16, 2016.
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42. State Government has issued Notification dated March 20,
2020 under Section 3(1) of the Act of 1996 laying down the
pecuniary jurisdiction of the Commercial Division of the Hon’ble
Court to be an amount exceeding Rs. 10 lakhs.
43. Commercial Courts Act, 2015 has come into force on October
23, 2015. Statement of objects and reasons of the Act of 2015 has
observed that, there was a proposal to provide speedy disposal of
high value commercial disputes. Government has been considering
such proposal for some time. Statement of objects and reason has
noted that, high value commercial dispute involve complex facts and
questions of law. Government has felt the need to provide an
independent mechanism for their earlier proposal. Statement of
objects and reason has also noted that early resolution of
commercial dispute shall create a positive image to the investor
world about the independent and responsive Indian Legal System.
44. The Act of 2015 has seven Chapters. Chapter I has the short
title, extent and the definitions of the Act of 2015. Chapter II, has
dealt with Commercial Court, Commercial Appellate Court,
Commercial Divisions and Commercial Appellate Division. Under the
scheme of the Act of 2015, the State Government was empowered to
constitute Commercial Courts after consultation with the High Court
16
as deemed necessary for the purpose of exercising jurisdiction and
powers conferred under those Courts under the Act of 2015. Section
3A has allowed designation of Commercial Appellate Courts while
Section 4 has dealt with constitution of the Commercial Division of
the High Court and Section 5 relates to the constitution of the
Commercial Appellate Division.
45. Section 4 of the Act of 2015, has laid down that, in all High
Courts having Ordinary Original Civil Jurisdiction, the Chief Justice
of the High Court may by order constituting Commercial Division
having one or more Benches constituting of Single Judge for the
purpose of exercising the jurisdiction and powers conferred on it
under this Act. Powers of nomination for such Judges to be presided
over the Commercial Division has been given to the Chief Justice of
the High Court under Section 4(2) of the Act of 2015.
46. Under Section 5 of the Act of 2015, after issuance of the
Notification under Section 3(1) or Order under Section 4(1), the Chief
Justice of the concerned High Court shall by order constitute a
Commercial Appellate Division having one or more Division Benches
for the purpose of exercising jurisdiction and powers conferred on it
by the Court.
17
47. Section 6 of the Act of 2015 has laid down the jurisdiction of
the Commercial Court while, Section 7 has dealt with the
jurisdiction of the Commercial Division of the High Court.
48. Section 7 of the Act of 2015 has prescribed the jurisdiction of
the Commercial Division of the High Court. It has prescribed that all
suit and applications relating to commercial dispute of a Specified
Value filed in the High Court having Ordinary Original Civil
Jurisdiction shall be heard and disposed of by the Commercial
Division of the High Court. The proviso under Section 7 are not
attracted in the facts and circumstances of the present case.
49. Section 10 of the Act of 2015 has delineated the jurisdiction
in respect of arbitration matters for a Commercial Court as well as
Commercial Division. It has specified that, where the subject matter
of an arbitration is a commercial dispute of a Specified Value and if
such arbitration is other than an international commercial
arbitration, all applications or appeals arising out of such arbitration
under the provisions of the Arbitration and Conciliation Act, 1996
filed in the Original Side of the High Court, shall be heard and
disposed of by the Commercial Division where such Commercial
Division has been constituted by such High Court.
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50. Reading Section 7 and 10 of the Act of 2015, in our view, the
Act of 2015 has prescribed that, the jurisdiction of the Commercial
Division when constituted shall be to hear and decide all suits and
applications including arbitration proceedings of Specified Value,
involving a commercial dispute within the meaning of the Act of
2015.
51. In other words, few conditions have to be satisfied for the
Commercial Division to assume jurisdiction for a suit or an
arbitration proceedings. Since, the appeal involves an order passed
under Section 9 of the Act of 1996 in a proceedings which is not an
international commercial arbitration, we are confining ourselves to
the provisions of law in this regard.
52. Sections 7 and 10 of the Act of 2015 have prescribed that, a
commercial dispute of a Specified Value must be heard and decided
by the Commercial Division when constituted. In the facts and
circumstances of the present case, the Commercial Division of the
High Court was constituted on July 16, 2016. Pecuniary jurisdiction
which was initially prescribed on November 15, 2018 subsequently
has been modified on March 20, 2020.
53. It is accepted at the Bar that, the proceedings under Section
9 of the Act of 1996 in which, the impugned judgment and order was
19
passed involves a commercial dispute within the meaning of the Act
of 2015. The proceeding under Section 9 of the Act of 2015 was
instituted in 2022 much after the constitution of the Commercial
Division and the prescription of the pecuniary jurisdiction and its
amendment thereof.
54. On the date, when, the proceedings under Section 9 of the
Act of 2015 were instituted before the High Court, in the non-
Commercial Division, such Court did not have jurisdiction to receive
the same. Orders passed in such proceedings, would therefore,
necessarily be a nullity since, the Court did not have jurisdiction on
the date, when, such proceedings were filed before it.
55. This Hon’ble Court has Ordinary Original Civil Jurisdiction.
On a harmonious reading of the provisions of the Sections 4 to 11 of
the Act of 2015, it can be said that, on the constitution of the
Commercial Division of the High Court, all suits and proceedings
relating to commercial disputes of the Specified Value have to be
heard and decided by the Commercial Division.
56. Various issues including issue as to the nature of the
provisions of Section 12A of the Act of 2015 had fallen for
consideration in Laxmi Polyfab (supra). Laxmi Polyfab (supra)
has held Section 12A of the Act of 2015 to be mandatory. It had
20
noted that, suits involving commercial disputes of the Specified
Value filed subsequent to the Notification dated March 20, 2020 was
a nullity and was required to be returned under Order VII Rule 10 of
the Code of Civil Procedure, 1908.
57. Laxmi Polyfab (supra) has been considered in 2022
Volume 10 Supreme Court Cases 1 (Patil Automation Pvt. Ltd.
vs. Rakheja Engineers Private Limted). Patil Automation (supra)
has held that Section 12A of the Act of 2015 to be mandatory. It has
held that, suits filed in non-compliance with Section 12A of the Act
of 2015 either on or after August 22, 2022 or after the jurisdictional
High Court declared Section 12A as mandatory to be barred by law
under Order VII Rule 11 of the Code of Civil Procedure, 1908.
58. Patil Automation (supra) has been considered by the
Supreme Court in 2025 Volume 9 Supreme Court Cases 424
(Dhanbad Fuels Private Limited Vs. Union of India and
Another). Dhanbad Fuels (supra) has held that, Section 12A of the
Act of 2015 is mandatory and that, commercial suits filed in non-
compliance of Section 12A of the Act of 2015 are to be dismissed.
59. Section 12A of the Act of 2015 relates to a suit involving a
commercial dispute of the specified value and it requires pre-
institution mediation when, the plaintiff in such suit is not seeking
21
urgent interim relief. Once it is held that, Section 12A of the Act of
2015 is mandatory, it necessarily follows that, the provisions of
Section 6, 7, 10 are also mandatory. Patil Automation (supra) after
having held that, Section 12A of the Act of 2015 was mandatory
directed that plaint filed in the Commercial Division to be evaluated
on the basis of the date of filing and compliance of Section 12A of the
Act of 2015.
60. Filing of the suits in Commercial Division is governed by
Section 7 of the Act of 2015. Section 7 also governs the filing of
applications relating to commercial dispute of a Specified Value.
Section 7 of the Act of 2015, therefore, should not be dissected to
mean that, so far as filing of suits are concerned, suits involving
commercial dispute of a Specified Value must be filed in the
Commercial Division while, an application under the Act of 1996
relating to a commercial dispute of a Specified Value can be filed
either in the non-Commercial Division or in the Commercial
Division. Such an interpretation would be contrary to the express
provisions of Section 7 of the Act of 2015 as also the ratio of Patil
Automation (supra) and Dhanbad Fuels (supra).
61. A Commercial Division constituted under the provisions of
the Act of 2015 has the sole jurisdiction to hear and decide suits and
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other proceedings involving commercial dispute of the Specified
Value. The Act of 2015 has amended various provisions of the Code
of Civil Procedure, 1908. Such amended provisions of the Code of
Civil Procedure, 1908 are tools exclusively available to a Commercial
Division or the Commercial Court or the Commercial Appellate
Division to expedite the disposal of the proceeding involving a
commercial dispute. The Act of 2015 has also introduced measures
of expedition, such as time management for hearing, petition for
passing summary judgment and limiting the right of appeal. These
provisions are unavailable to Courts other than Commercial
Division, Commercial Court and the Commercial Appellate Division.
62. All Courts apart from the Commercial Division constituted
under the Act of 2015 have lost jurisdiction to receive, try and
entertain suits or proceedings involving commercial disputes of the
Specified Value on the date of constitution of the Commercial
Division. Any other interpretation could be misreading of the
provisions of the Act of 2015.
63. Same Judge theory as enunciated by the Supreme Court in
Shri Balaji Industrial Engineering Ltd (supra) has no manner of
application in the facts and circumstances of the present case. In
Shri Balaji Industrial Engineering Ltd (supra) the proceedings
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were duly instituted and were pending on the date when, the Act of
2015 came into operation. In the present case, Section 9 proceedings
were filed before a Court which did not have jurisdiction on the date
of its filing.
64. In Starlift Services Pvt Ltd (supra), we have considered the
nature of proceedings involved therein, the transfer architecture
under Section 15 of the Act of 2015, jurisdiction of the Commercial
Division, Specified Value and the Practice Directions of 2021
amongst others.
65. The High Court, in exercise of its powers under Section 18 of
the Act of 2015, has issued the High Court at Calcutta, Commercial
Courts Practice Direction, 2021. Such Practice Directions in Clause
1.3 has specified that, the Practice Directions were to supplement
the provisions of Chapter II of the Act of 2015 and the Code of Civil
Procedure, 1908 insofar as such provisions apply to the hearing of
commercial disputes of or above the value as notified by the State
Government from time to time.
66. The Practice Directions of 2021 in Part IV has dealt with
institutions of suit applications and proceedings including those
improperly filed. It has laid down that, the High Court shall not
subsequent to the date of issuance of the notification of the
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pecuniary value receive, try or determine any suit involving a
commercial dispute of or above the Specified Value if the same is
filed in the Ordinary Original Civil Jurisdiction. In the event, any
such suit or proceeding is filed, in breach of the notification, then,
the Court shall return the plaint and the application on the
principles of Order VII Rule 10 of the Code of Civil Procedure, 1908.
In the event, the suit or proceedings is barred and if neither party
applies for return, the Court shall reject the plaint or the application
as the case may be.
67. In the facts and circumstances of the present case, the Court
passing the impugned judgment and order, did not have the
jurisdiction to receive the proceedings under Section 9 of the Act of
1996. Parties could have applied for return of such proceedings to be
filed before the appropriate forum. Parties had not done so. Failure
of the parties to do so does not vest jurisdiction on the Court which
it did not possess. Consent of the parties cannot confer jurisdiction
upon a Court which it does not otherwise possess.
68. In the facts and circumstances of the present case, the
respondents have taken the point of lack of jurisdiction in its
affidavit-in-opposition. The appellants did not apply for return of the
proceedings.
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69. Bharat Heavy Electricals Limited (supra) has considered
the issue of assumption of jurisdiction of Non-Commercial Court
over a commercial dispute of a Specified Value. In the facts of that
case, a challenge under Section 34 of the Act of 1996 was filed in the
Non-Commercial Division. It has considered Shri Balaji Industrial
Engineering Ltd (supra). It has expressed the view that, Shri
Balaji Industrial Engineering Ltd (supra) cannot be read to
permit a Commercial Court to render a decision in respect of a Non-
Commercial dispute without being the designated Court under
Section 4(2) of the Act of 2015, in respect of matters filed subsequent
to the constitution of the Commercial Division of the High Court.
70. The Trial Judge had lacked jurisdiction to receive and try the
two petitions under Section 9 of the Act of 1996 proceedings. Interim
orders passed in these two proceedings have merged with the final
order impugned herein. As noted above, the appellants did not seek
transfer to the two proceedings.
71. In view of the discussions above, the impugned judgment and
order is set aside on the ground of lack of jurisdiction to receive and
decide the two petitions under Section 9 of the Act of 1996 and to
pass the impugned judgment and order.
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72. A.P.O. No. 41 of 2024 and A.P.O. No. 42 of 2024 with OCOT 3
of 2024, OCOT 4 of 2024, OCOT 5 of 2024 along with all connected
applications are disposed of without any order as to costs.
AP/850/2022 and AP/851/2022 are dismissed.
[DEBANGSU BASAK, J.]
73. I agree.
[MD. SHABBAR RASHIDI, J.]
