Calcutta High Court (Appellete Side)
Batliboi Environmental Engineering … vs Eastern Metec Private Limited on 19 February, 2026
2026:CHC-AS:298
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
C.O. 3320 of 2022
Batliboi Environmental Engineering Limited
Vs
Eastern Metec Private Limited
For the Petitioner : Mr. U.S. Menon,
Mr. Abhirup Chakraborty,
Mr. Tuhin Ganguly.
For the Respondent : Ms. Debjani Sengupta, (V/C)
Mr. Subhankar Nag,
Mr. Soumya Ray,
Ms. Anwesha Saha,
Ms. Vaswati Banerjee,
Mr. Pramit Panda.
Judgment reserved on : 28.01.2026
Judgment delivered on : 19.02.2026
Shampa Dutt (Paul), J.:
1. The civil revision has been preferred challenging order no. 7 dated 11th
July, 2022 passed by the learned Judge, Commercial Court at Alipore in
Money Suit No. 13 of 2022.
2. Vide the impugned order, the learned Commercial Court noted that the
mediation between the parties had failed. The learned Court further
directed the defendant to file his written statement along with counter
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claim upon the plaintiff within 48 hrs. and also granted leave to the
defendant to file all original documents.
3. Being aggrieved, the plaintiff/petitioner has preferred the revisional
application stating that the defendant/opposite party appeared on
19.01.2016 and filed its written statement (without any counter claim)
on 20.11.2017.
4. On 22.12.2021 the suit was fixed for adducing evidence of P.W. No. 1.
On that date due to paucity of time the evidence of the P.W. 1 could not
take place, but the copy of the evidence on affidavit was served upon the
learned advocate for the defendant.
5. On 09.02.2022, the suit was transferred to the Commercial Court and
was renumbered as Money Suit No. 13 of 2022. On 11.07.2022 the
defendant filed a fresh written statement with a purported counter claim
with inconsistent pleas. The said written statement with counter claim
was accepted on record by the learned Commercial Court despite
objections from the petitioner.
6. The petitioner submits that the impugned order is not in accordance
with law and is thus liable to be set aside on the following grounds:-
“(i) In terms of Section 15(3) of the Commercial Courts Act,
2015 all pending suits which are transferred shall apply to
those procedures that were not complete at the time of transfer.
There is no provision under the Commercial Courts Act, 2015
that the transferred suit shall proceed De Novo.
(ii) Since the defendant has already filed its written statement,
it cannot change its defence by filing a new written statement
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with counter claim and new plea. Hence, the order accepting
the written statement with counter claim is not in consonance
with the provisions of Order VIII Rule 6A of the Code of Civil
Procedure, 1908.
(iii) The defendant has completely changed its stand in the
new written statement by introducing new cause of action
which is not permissible under law. The impugned order has
caused a great prejudice to the petitioner resulting in
miscarriage of justice.”
7. It is further stated by the petitioner that the contention of the
defendant/opposite party that the transfer of suit to Commercial Court
was under Order VII Rule 10 CPC in the nature of return of plaint and
that the proceeding was to start de novo, is misconceived and untenable
in law. The petition for transfer was made in view of Commercial Courts
Act, 2015, having come into force.
8. It is also stated by the petitioner that the contention of the opposite
party that the civil revisional application is not maintainable in terms of
Section 8 of the Commercial Courts Act shall not be applicable to the
petitions under Article 227 of the Constitution of India. Reliance is
placed on State of Gujarat vs. Union of India reported in 2018 SCC
OnLine Guj 1515.
9. The petitioner has relied upon the judgment in State of Gujarat
(supra) paragraph 32, 33 and 41, the Court held:-
“41. In view of the above and for reasons stated
above and considering the decisions of Hon’ble
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Supreme Court referred to hereinabove, our
conclusions in nutshell are as under:–
(1) The bar contained under Section 8 of the Commercial
Courts Act against entertainability of “civil revision
application or petition” against the interlocutory orders
passed by the subordinate/Commercial Courts, shall
not be applicable to the writ petitions under Article 227
of the Constitution of India.
(2) The bar contained in Section 8 of the Commercial
Courts Act shall not affect the supervisory jurisdiction of
the High Courts under Article 227 of the Constitution of
India in respect of the orders, including interlocutory
orders, passed by the Commercial Court and writ
petitions under Article 227 of the Constitution of India
may be entertainable, however, subject to the following
observations and restrictions:–
(a) Supervisory jurisdiction under Article 227 of the
Constitution is exercised for keeping the subordinate
Courts within the bounds of their jurisdiction. When the
subordinate Court has assumed a jurisdiction which it
does not have or has failed to exercise a jurisdiction
which it does have or the jurisdiction though available is
being exercised by the Court in a manner not permitted
by law and failure of justice or grave injustice has
occasioned thereby, the High Court may step in to
exercise its supervisory jurisdiction.
(b) The supervisory jurisdiction under Article 227 of the
Constitution of India may not be exercised to correct
mere errors of fact or of law and may be exercised only
when the following requirements are satisfied:–
(i) the error is manifest and apparent on the face of the
proceedings such as when it is based on clear ignorance
or utter disregard of the provisions of law, and
(ii) a grave injustice or gross failure of justice has
occasioned thereby
(c) A patent error is an error which is self-evident, i.e.,
which can be perceived or demonstrated without
involving into any lengthy or complicated argument or a
long-drawn process of reasoning. Where two inferences
are reasonably possible and the subordinate court has
chosen to take one view the error cannot be called gross
or patent.
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(d) The power to issue a writ of certiorari and the
supervisory jurisdiction are to be exercised sparingly
and only in appropriate cases where the judicial
conscience of the High Court dictates it to act lest a
gross failure of justice or grave injustice should
occasion. Care, caution and circumspection need to be
exercised, when any of the above said two jurisdictions
is sought to be invoked during the pendency of any suit
or proceedings in a subordinate court and error though
calling for correction is yet capable of being corrected at
the conclusion of the proceedings in an appeal or
revision preferred there against and entertaining a
petition invoking certiorari or supervisory jurisdiction of
High Court would obstruct the smooth flow and/or early
disposal of the suit or proceedings. The High Court may
feel inclined to intervene where the error is such, as, if
not corrected at that very moment, may become
incapable of correction at a later stage and refusal to
intervene would result in travesty of justice or where
such refusal itself would result in prolonging of the lis.
(3) Though while exercising supervisory jurisdiction
under Article 227 of the Constitution of India, the High
Court may annul or set aside the act, order or
proceedings of the subordinate courts, it may not
substitute its own decision in place thereof.
(4) In exercise of supervisory jurisdiction, the High Court
may not only give suitable directions so as to guide the
subordinate Court as to the manner in which it would
act or proceed thereafter or afresh, the High Court may
in appropriate cases, itself make an order in
supersession or substitution of the order of the
subordinate Court as the Court should have made in the
facts and circumstances of the case.
(5) That while exercising powers under Article 227 of the
Constitution of India, the High Court would have to
consider the observations made by the Hon’ble Supreme
Court in Paragraph-39 in the case of Surya Dev
Rai v. Ram Chander Rai (supra), which are as under:
“39. Though we have tried to lay down broad principles
and working rules the fact remains that the parameters
for exercise of jurisdiction under Article-226 or 227 of
the Constitution cannot be tied down in a straitjacket
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formula or rigid rules. Not less than often the High Court
would be faced with dilemma. If it intervenes in pending
proceedings there is bound to be delay in termination of
proceedings. If it does not intervene, the error of the
moment may earn immunity from correction. The facts
and circumstances of a given case may make it more
appropriate for the High Court to exercise self-restraint
and not to intervene because the error of jurisdiction
though committed is yet capable of being taken care of
and corrected at a later stage and the wrong done, if
any, would be set right and rights and equities adjusted
in appeal or revision preferred at the conclusion of the
proceedings. But there may be cases where a stitch in
time would save nine’. At the end, we may sum up by
saying that the power is there but the exercise is
discretionary which will be governed solely by the
dictates of judicial conscience enriched by judicial
experience and practical wisdom of the Judge”.”
10. The defendant/opposite party herein by filing his written notes has
stated that admittedly on 28.05.2018 a written statement was filed by
the defendant/opposite party before the civil Court and on the prayer of
the said defendant/opposite party the suit was transferred to the
Commercial Court on 09.02.2022.
11. On 03.03.2022, the suit was heard as Money Suit No. 13 of 2022 on
receiving the records from the civil Court by the Commercial Court.
12. It is the contention of the defendant/opposite party that on 10.03.2022,
the defendant/opposite party prayed for sending the matter for
mediation, on filing of the written statement and the prayer was allowed.
13. It is stated that no appeal was preferred from such an order by the
plaintiff/petitioner and, as such, on the date of the impugned order the
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petitioner’s written statement along with counter claim was accepted by
the Commercial Court.
14. It is further submitted that a fresh written statement along with counter
claim was required to be filed as after filing of the earlier written
statement, arbitration proceeding had been initiated against the
opposite party by Lursen & Toubro and Usha Martin and, as such,
due to the subsequent cause of action, the counter claim was filed
by the petitioner.
15. It is the specific contention of the defendant/opposite party herein that
when such a suit is transferred, the same is under the provisions of
Order 7 Rule 10 CPC, even if the same has been filed under Section 15
of the Commercial Court and such suit for transfer has to be
adjudicated de novo.
16. The defendant has relied upon the following judgments in support of
his contention:-
(i) M/s EXL Careers & Anr. vs. Frankfinn Aviation Services
Pvt. Ltd. (2020) 12 SCC 667 paragraphs 11, 15 and 26.
(ii) Namita Gupta vs. Suraj Holdings Ltd. (2024) SCC
OnLine Delhi 142 789 paragraphs 32, 37, 43, 44, 50,
55, 58, 59 and 69.
17. It is further stated that even after filing written statement there is no bar
to filing a counter claim, specially if a subsequent cause of action arises
after filing written statement.
18. On hearing the learned counsels for the parties and on perusal of the
materials on record, it appears that admittedly the suit in the present
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case was pending before the civil Court wherein admittedly written
statement had already been filed by the defendant/opposite party
herein.
19. Before the civil Court, the defendant/opposite party herein filed his
written statement as per Order VIII Rule 1 CPC. No counter claim was
filed by the defendant/opposite party at the time of filing the written
statement before the civil Court.
20. It is the contention of the said defendant/opposite party that
subsequently before the Commercial Court, a fresh cause of action
arose and, as such, the defendant was constrained to file a fresh
written statement along with a counter claim. Hence the prayer for
dismissal of the revision.
21. The provision in respect of a counter claim to be filed by a defendant in
a suit, is provided under Order VIII Rule 6A of the CPC and this counter
claim is in addition to his written statement. The plaintiff in such a case
is at liberty to file written statement against the counter claim as per
Order VIII Rule 6A (3) CPC.
22. The plaintiff/petitioner herein is aggrieved by the acceptance of the
fresh written statement with counter claim and has prayed for setting
aside of the impugned order, which is to be considered by this Court as
per Order VIII Rule 6A (3) CPC along with the relevant provisions of the
Commercial Court’s Act.
23. Order VIII Rule 6(C) CPC provides as follows:-
“6C. Exclusion of counter-claim.-Where a defendant sets
up a counter-claim and the plaintiff contends that the claim
thereby raised ought not to be disposed of by way of counter-
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claim but in an independent suit, the plaintiff may, at any time
before issues are settled in relation to the counter-claim, apply
to the Court for an order that such counter-claim may be
excluded, and the Court may, on the hearing of such
application make such order as it thinks fit.”
24. To counter the said submission by the plaintiff/petitioner herein, the
defendant/opposite party relies upon the provisions of Order VIII Rule
8 CPC which provides as follows:-
“8. New ground of defence.–Any ground of defence which
has arisen after the institution of the suit or the presentation of
a written statement claiming a set-off [or counter-claim] may
be raised by the defendant or plaintiff, as the case may be, in
his written statement.”
25. Order VIII Rule 9 CPC lays down:-
“9. Subsequent pleadings.–No pleading subsequent to the
written statement of a defendant other than by way of
defence to set-off or counter-claim shall be presented
except by the leave of the Court and upon such terms as the
Court thinks fit; but the Court may at any time require a
written statement or additional written statement from any of
the parties cut and fix a time of not more than thirty days for
presenting the same.”
26. It appears that the provision under Order VIII Rule 9 CPC is very clear
that there cannot be any further pleadings, subsequent to a written
statement filed by the defendant, other than by way of defence, as a
counter claim and the same can be accepted with the leave of the Court.
The Court is also at liberty to call for a written statement or additional
written statement from any of the parties within a time frame.
27. In the present case, it appears that, leave to file a counter claim by the
Commercial Court has been granted under Order VIII Rule 9 CPC.
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28. Thus the impugned order in the present case being in accordance with
law requires no interference.
29. Trial Court to proceed expeditiously on permitting the
plaintiff/petitioner herein to file his written statement within the time
permitted to the counter claim filed by the defendant/opposite party
herein.
30. CO 3320 of 2022 is dismissed.
31. Connected application, if any, stands disposed of.
32. Interim order, if any, stands vacated.
33. Urgent Photostat certified copy of this judgment, if applied for, be
supplied to the parties expeditiously after due compliance.
(Shampa Dutt (Paul), J.)
