Kedarnath Tradecomm Llp & Ors vs Mayank Agarwal & Ors on 14 July, 2026

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    Calcutta High Court

    Kedarnath Tradecomm Llp & Ors vs Mayank Agarwal & Ors on 14 July, 2026

    Author: Debangsu Basak

    Bench: Debangsu Basak

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                                             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.
                                           3
    
    
    
    
         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

    SPONSORED

    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.

    4

    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.

    5

    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
    7

    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.).

    8

    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.
    9

    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
    10

    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.
    13

    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.

    15

    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.
    18

    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
    22

    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
    23

    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
    24

    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.

    25

    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.

    26

    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.]



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