Calcutta High Court
Starlift Services Private Limited vs Syama Prasad Mookerjee Port on 9 April, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
2026:CHC-OS:121-DB
OD-1 & 2
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE DIVISION
ORIGINAL SIDE
APO/48/2021
WITH AP/590/2011
STARLIFT SERVICES PRIVATE LIMITED
VS
SYAMA PRASAD MOOKERJEE PORT, KOLKATA
AND
APO/141/2023
WITH AP/915/2011
STATE OF WEST BENGAL
VS
RAJPATH CONTRACTORS AND ENGINEERS LTD AND ANR.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
-AND-
The Hon'ble JUSTICE MD. SHABBAR RASHIDI
For the Appellant : Mr. Sabyasachi Choudhury, Sr. Adv.
Mr. Rajarshi Dutta, Adv.
Mr. Soorjya Ganguli, Adv.
Mr. Shounak Mukhopadhyay, Adv.
Ms. Arti Bhattacharyya, Adv.
...in APO/48/2021.
Mr. Suman Kr. Dutt, Sr. Adv.
Ms. Noelle Banerjee, Adv.
Ms. Nilanjana Adhya, Adv.
Mr. Paritosh Sinha, Adv.
Mr. Arindam Mandal, Adv.
Ms. Swagata Ghosh, Adv.
...in APO/141/2023
For the Respondent : Mr. Tilak Kr. Bose, Sr. Adv.
Mr. Ashok Kr. Jena, Adv.
…in APO/48/2021
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Mr. Sakya Sen, Sr. Adv.
Mr. Priyankar Saha, Adv.
Ms. Srijani Mukherjee, Adv.
...in APO/141/2023
HEARD ON : April 9, 2026
DELIVERED ON : April 9, 2026
DEBANGSU BASAK, J.:-
Contents
Scope of the Appeals………………………………………………………………………… 3
Contentions of the Appellant in First Appeal …………………………………………. 4
Contentions of the Respondent in First Appeal ……………………………………… 5
Contentions of the Appellant in Second Appeal ……………………………………… 7
Contentions of the Respondent in Second Appeal ………………………………….. 9
Analysis ………………………………………………………………………………………. 11
Nature of Proceedings ………………………………………………………………….. 11
Transfer architecture under Section 15 …………………………………………… 12
Jurisdiction of Commercial Division ……………………………………………….. 12
Loss of jurisdiction of non-commercial division Courts to hear matters
involving commercial disputes of Specified Value ………………………………. 14
Specified Value…………………………………………………………………………… 15
Practice Directions 2021 ………………………………………………………………. 15
Objections as to Jurisdiction ………………………………………………………… 19
Validity of the orders passed by the transferee Court …………………………. 22
Answer to Issue (i) …………………………………………………………………………. 26
Answer to Issue (ii) ………………………………………………………………………… 26
Answer to Issue (iii) ……………………………………………………………………….. 26
Answer to Issue (iv) ……………………………………………………………………….. 27
Conclusion …………………………………………………………………………………… 27
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Scope of the Appeals
1. Two appeals under Section 37 of the Arbitration and
Conciliation Act, 1996 are taken up for analogous hearing as
some of the issues involved are same.
2. For the sake of convenience the two appeals are referred to as
first and second in accordance with the time that they were
filed. The impugned judgments and orders in both the appeals
emanated from proceeding filed under Section 34 of the Act of
1996 prior to the Act of 2015 coming into force. The two
proceedings under Section 34 of the Act of 1996 were pending
on the Constitution of the Commercial Division by the High
Court. Neither the registry of the High Court nor the parties
caused transfer of the two proceedings to the Commercial
Division.
3. APO 48 of 2021 (first appeal) is directed against the judgment
and order dated December 24, 2020 passed in AP 590 of
2011. By the impugned judgment and order, learned Single
Judge allowed the application under Section 34 of the Act of
1996 and set aside the award dated April 18, 2011.
4. APO 141 of 2023 (second appeal) is directed against the
judgment and order dated December 24, 2020 passed in AP
590 of 2011.
5. By the impugned judgment and order, learned Single Judge
allowed the application under Section 34 of the Act of 1996
and set aside the award dated April 18, 2011.
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6. Common issues falling for consideration in the two appeals
are as follows :-
“(i) What is the effect of the provisions of the Commercial
Courts Act, 2015 on a proceeding under Section 34 of the
Arbitration and Conciliation Act, 1996 subsequent to the
establishment of the Commercial Division?
(ii) Would a judgment and order passed by a non-
Commercial Division Court after the establishment of the
Commercial Division, in a proceeding filed before coming
into effect of the Act of 2015 and involving a commercial
dispute within the meaning of the Act of 2015 be a nullity?
(iii) Can Clause 15 of the Letters Patent, 1865 be involved
to assail a judgment and order passed by a non-
Commercial Division Single Judge, in a proceeding
involving commercial dispute subsequent to the
establishment of the Commercial Division?
(iv) To what relief or reliefs are the parties entitled in such
situations?
Contentions of the Appellant in First Appeal
7. Mr. Sabyasachi Choudhury, learned Senior Advocate
appearing for the appellant in the first appeal submits that,
the dispute involved between the parties is a commercial
dispute within the meaning of Section 2 (1) (c) (xviii) of the Act
of 2015. He submits that, a contract for operation and
maintenance of two Mobile Harbour Cranes with back up
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support equipment at the Container Terminal in the Kolkata
docks of Syama Prasad Mookerjee Port, Kolkata was entered
into between the parties. He submits that, disputes and
differences arose between the parties in respect of such
contract which was referred to arbitration. Therefore,
according to him, the provisions of Section 2 (1) (c) (xviii) of
the Act of 2015 stood attracted.
8. Mr. Choudhury, learned Senior Advocate appearing for the
appellant in the first appeal submits that, the impugned
judgment and order was passed on December 24, 2020. He
points out that, the Act of 2015 came into effect from October
23, 2015 by virtue of Section 1 (3) thereof. The proceeding
under Section 34 of the Act of 1996 was, however, instituted
in 2011. He refers to Section 15 of the Act of 2015 and
submits that, with the establishment of the Commercial
Division, the proceeding was required to be transferred to the
Commercial Division which was not done. He points out that,
the Commercial Division of the High Court was constituted by
virtue of a Notification dated July 16, 2016. Parties also did
not apply under Section 15 (5) of the Act of 2015 for transfer.
Contentions of the Respondent in First Appeal
9. Mr. Tilak Bose, learned Senior Advocate appearing for the
respondent in the first appeal submits that, the institution of
the proceedings cannot be said to be without jurisdiction,
since, the same was done in 2011. The Act of 2015 became
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effective by virtue of Section 1 (3) of the Act of 2015 on and
from October 23, 2015.
10. Mr. Tilak Bose, learned Senior Advocate appearing for the
respondent in the first appeal submits that, since, no
objection with regard to the jurisdiction of the High Court to
pass the impugned judgment and order was taken at the first
available opportunity, the appellant is precluded from taking
the same. In support of his contentions with regard to the
inherent lack of jurisdiction and the objection as to
jurisdiction to be taken at the first available opportunity, Mr.
Bose, relies upon (1954) 1 SCC 710 (Kiran Singh And
Others Vs. Chaman Paswan And Others), 1962 (2) SCR
747 (Seth Hiralal Patni Vs. Sri Kali Nath) and 2007 (13)
SCC 650 (Subhash Mahadevasa Habib Vs. Nemasa
Ambasa Dharamdas).
11. Mr. Tilak Bose, learned Senior Advocate appearing for the
respondent in the first appeal refers to a bunch of orders
passed from time to time. He submits that, the Single Judge
as also the Division Bench passed orders from time to time in
the Non-commercial Division. He submits that, the appellant
did not object to this lack of jurisdiction at any point of time.
12. Mr. Tilak Bose, learned Senior Advocate appearing for the
respondent refers to the provisions of the Act of 2015 as also
to the High Court of Calcutta Commercial Courts Practice
Directions, 2021. He submits that, neither the Registry of the
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High Court, nor the parties caused the transfer of the
proceedings from the Non-commercial Division to the
Commercial Division in terms of Section 15 of the Act of 2015
prior to the date of impugned judgment and order.
13. Mr. Tilak Bose, learned Senior Advocate appearing for the
respondent in the first appeal submits that, there is a
fundamental difference between inherent lack of jurisdiction
and, the Court loosing jurisdiction during the pendency of the
proceedings. In the facts and circumstances of the present
case, he submits that, the filing of the proceedings cannot be
said to be without jurisdiction or that, the Court lacked
inherent jurisdiction when the proceeding was filed. He
submits that, the point of jurisdiction is required to be
decided taking the date of filing of the proceedings rather than
the date, when, the impugned judgment and order was
passed. Viewed from such perspective, he submits that, the
impugned judgment and order cannot be said to be passed
without jurisdiction or that, the same stands vitiated due to
inherent lack of jurisdiction.
Contentions of the Appellant in Second Appeal
14. Mr. Suman Kr. Dutt, learned Senior Advocate appearing for
the appellant in the second appeal submits that, the disputes
between the parties in the second appeal emanate out of a
work’s contract. Such disputes and differences were referred
to arbitration resulting in an award. The appellant in the
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second appeal filed an application under Section 34 of the Act
of 1996 before the High Court in 2011 challenging the award.
The impugned judgment and order is dated May 4, 2023,
passed by the Court in the Non-commercial Division. He
submits that, since, the dispute involve a commercial dispute
within the meaning of Section 2 (1) (c) (vi) of the Act of 2015,
the Court passing the impugned judgment and order, did not
possess requisite jurisdiction when it did so.
15. Mr. Suman Kr. Dutt, learned Senior Advocate appearing for
the appellant in the second appeal submits that, the issue of
jurisdiction should be decided on the date, when, the
impugned judgment and order was passed since, a statute
that is the Act of 2015 rendered the Court passing the
impugned judgment and order, without jurisdiction on the
date, when, it passed such judgment and order.
16. Mr. Suman Kr. Dutt, learned Senior Advocate appearing for
the appellant in the second appeal, draws the attention of the
Court to 2026:CHC-OS:15-DB (Tractel Tirfor India Pvt. Ltd.
Vs. Tractel International S.A.S.) and submits that, since
the impugned judgment and order was passed by a Non-
commercial Court, the present appeal is maintainable under
Clause 15 of Letters Patent, 1865. The legality and validity of
the impugned judgment and order can be tested by the
present appeal court in the Non-commercial Division.
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17. Mr. Suman Kr. Dutt, learned Senior Advocate appearing for
the appellant in the second appeal relies on the judgment and
order dated April 1, 2026 passed in APO/144/2023 (Awam
Marketing LLP Vs. M/S Orient Beverages Limited And Ors)
for the proposition that, the Court should set aside the
impugned judgment and order and direct the proceedings
under Section 34 of the Act of 1996 to be transmitted to the
Commercial Division and be disposed of therein on merits.
Contentions of the Respondent in Second Appeal
18. Mr. Sakya Sen, learned Senior Advocate appearing for the
respondent in the second appeal submits that, the initiation
of the proceedings under Section 34 of the Act of 1996 cannot
be said to be wholly without jurisdiction. He submits that, the
issue of jurisdiction of the Court passing the impugned
judgment and order should be decided on the date of the filing
of the proceedings and not on the date of the impugned
judgment and order.
19. Mr. Sakya Sen, learned Senior Advocate appearing for the
respondent in the second appeal relies upon a decision of the
Co-ordinate Bench dated August 28, 2019 passed in
GA/938/2019 with APO/82/2019 With CS/26/2005
(Surajit Sen Vs. The Royal Bank of Scotland NV) and
submits that, the rigours of the Act of 2015 will apply
notwithstanding the fact, that the impugned judgment and
order was passed by a Court in the non-Commercial Division.
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He submits that, since, the same learned Single Judge takes
up commercial matters as also the non-commercial matters in
the same Court room on the same day, such fact, should be
taken into consideration while deciding the issue of
jurisdiction. He points out that, the intent of the legislature
was expeditious disposal of a commercial dispute. Treating
the impugned judgment and order as a nullity due to lack of
jurisdiction will militate against the intent of the legislature of
expeditious disposal of a proceeding involving a commercial
dispute. Therefore, he submits that, no interference is called
for on the issue of lack of jurisdiction so far as the second
appeal is concerned.
20. Mr. Sakya Sen, learned Senior Advocate appearing for the
respondent in the second appeal contends that, initially the
appeal was admitted with the appellant being required to
furnish certain securities. Interim order in the appeal was
subsequently vacated expressly when, the appeal was
dismissed for default. Although, the appeal was restored,
interim order was not restored. He contends that, the
respondent is entitled to execute the award before the
Executing Court.
21. Mr. Sakya Sen, learned Senior Advocate appearing for the
respondent in the second appeal relies upon (2024) 4 SCC
696 (Asma Lateef And Another Vs. Shabbir Ahmed And
Others) and submits that, error of jurisdiction, if at all, in the
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facts and circumstances of the present case, can be said to be
an error within the jurisdiction of the learned Single Judge
inasmuch as, the original proceeding was instituted before a
Court possessing requisite jurisdiction. Therefore, again on
such analogy, the impugned judgment and order cannot be
classified as one passed without jurisdiction. At best, it would
be an error of jurisdiction which does not require setting aside
of the impugned judgment and order in its entirety.
Analysis
Nature of Proceedings
22. Across the bar in both the appeals, it is admitted that, the
disputes involved in the two individual proceedings fell within
the meaning of Section 2 (1) (c) of the Act of 2015. In respect
of the first appeal, the disputes are within the meaning of
Section 2 (1) (c) (xviii) while, in the second appeal, it is within
the meaning of Section 2 (1) (c) (vi) of the Act of 2015.
23. In both the appeals, proceedings under Section 34 of the Act
of 1996 were instituted before the High Court in 2011. The
Act of 2015, delineating commercial disputes came into force
on and from October 23, 2015 by virtue of Section 1 (3) of the
Act of 2015. Therefore, as on the date of filing of the
proceedings under Section 34 of the Act of 1996, the same
could not be treated as falling within the Act of 2015 as they
were instituted prior to the Act of 2015 coming into force.
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Transfer architecture under Section 15
24. The Act of 2015 contemplates disposal of commercial disputes
by the Commercial Courts and Commercial Division
constituted under the Act of 2015. It defines commercial
disputes in Section 2(1)(c). It provides for identifying and
transferring proceedings involving commercial disputes of the
Specified value pending before the High Court prior to the Act
of 2015 coming into effect, to the Commercial Division in its
constitution.
Jurisdiction of Commercial Division
25. Chapter II of the Act of 2015 which deals with Commercial
Courts, Commercial Appellate Courts, Commercial Division
and Commercial Appellate Divisions is relevant. Section 3 of
the Act of 2015 under Chapter II prescribes the requirement
of constitution of Commercial Courts. Section 3A provides for
designation of Commercial Appellate Courts. Section 4
prescribes the constitution of Commercial Division of a High
Court while Section 5 prescribes the constitution of
Commercial Appellate Division. Sections 6 and 7 prescribe the
jurisdiction of Commercial Court and the Commercial Division
of the High Court respectively. Section 7 prescribes that, all
suits and applications relating to commercial disputes of a
specified value filed in a High Court shall be heard and
disposed of by the Commercial Division of that High Court.
Two provisos thereunder prescribe that, all suits and
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applications relating to commercial disputes stipulated by an
Act to lie in a Court which is inferior to the District Court and
filed or pending on Original Side of the High Court shall be
heard and disposed of by the Commercial Division of the High
Court while the second proviso prescribes that, all suits and
applications transferred to the High Court by virtue of Sub-
section (4) of Section 22 of the Designs Act, 2000 or Section
104 of the Patent Act, 1970 shall be heard and disposed of by
the Commercial Division of the High Court in all areas over
which the High Court exercises Ordinary Original Civil
Jurisdiction.
26. Section 10 of the Act of 2015 assumes significance in these
appeals. Section 10 of the Act of 2015 stipulates the
jurisdiction in respect of arbitration matters. Subsection (1)
deals with international commercial arbitration. Subsection
(2) prescribes that if the subject matter of an arbitration is a
commercial dispute of a specified value and such arbitration
is other than an international commercial arbitration that all
applications or appeals arising out of such arbitration under
the Act of 1996 filed on the Original Side of the High Court
shall be heard and disposed of by the Commercial Division
where constituted. Subsection (3) provides filing and hearing
by Commercial Courts of arbitration matters other than
international commercial arbitration where Commercial
Courts stand constituted.
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27. Section 10(2) of the Act of 2015 read with Section 15 thereof,
in our view, requires an arbitration proceeding other than
international commercial arbitration involving a commercial
dispute of the specified value within the meaning of the Act of
2015, filed subsequent to the Act of 2015 coming into effect,
to be heard and decided by the Commercial Division of the
High Court, on its constitution.
Loss of jurisdiction of non-commercial division Courts to hear
matters involving commercial disputes of Specified Value
28. On the constitution of the Commercial Division of the High
Court the Benches of the High Court before which the
arbitration proceedings under the Act of 1996 involving
commercial disputes of the Specified Value were pending lost
jurisdiction to hear and decide the same except exercising
powers of transfer under Section 15 of the Act of 2015.
29. So far as this High Court is concerned, the Commercial
Division was constituted by a Notification dated July 16,
2016. By a subsequent Notification dated September 5, 2017,
the Notification dated July 16, 2016 was amended. The
amendment enabled the Hon’ble the Chief Justice of this
Hon’ble Court to constitute more than one Single Bench in the
Commercial Division.
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Specified Value
30. Specified value as noted in sub-section (1) of Section 15 is
defined in Section 2 (1) (i) of the Act of 2015 to mean, the
value of the subject matter in respect of a suit or proceeding
as determined in accordance with Section 12 and which shall
not be less than Rs.3 lakhs or such other value as may be
notified by the Central Government.
31. There are two notifications on the pecuniary jurisdiction of the
Commercial Courts issued by this High Court being dated
November 15, 2018 and March 20, 2020. By the Notification
dated November 15, 2018, the specified value was prescribed
to be not less than Rs.1 crore for the Commercial Division of
this Hon’ble Court. The Notification dated March 20, 2020
reduced the specified value in the case of Commercial Division
of this Hon’ble Court to an amount exceeding Rs.10 lakhs.
32. In both the two appeals concerned, the value of the subject
matter of the two proceedings, are in excess of Rs.10 lakhs.
Therefore, pecuniary jurisdiction aspect along with the
specified value aspect of the Act of 2015 stands satisfied in
both the two appeals. As already noted and held earlier, the
disputes involved in the two appeals are commercial disputes
within the meaning of the Act of 2015.
Practice Directions 2021
33. Since, proceedings under Section 34 of the Act of 1996 were
pending when, the Act of 2015 came into being, the provisions
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of Section 15 (1) of the Act of 2015 became operative in
respect of the two proceedings. The High Court framed The
High Court at Calcutta Commercial Courts Practice
Directions, 2021 in exercise of powers conferred under
Section 18 of the Act of 2015. These practice directions were
notified in the Official Gazette on October 13, 2023. By virtue
of Section 1 (2) of the Practice Directions, 2021, such Practice
Directions came into effect on October 13, 2023. The Practice
Directions of 2021 deals with identification and transfer of
pending commercial disputes in Part-II. It provides for
transfer of pending cases in Section 4 and transfer of records
in Section 5.
34. In the proceedings under Section 34 of the Act of 1996,
involved in the two appeals, both the impugned judgments
and orders were passed prior to the Gazette notification of the
Practice Directions of 2021. In the first appeal, the impugned
judgment and order is dated December 24, 2020 while, in the
second appeal, the impugned judgment and order is dated
May 4, 2023.
35. Notwithstanding the Practice Directions of 2021 coming into
effect on October 13, 2023, the transfer mechanism
prescribed under Section 15 existed. It was the incumbent
duty of the Court to transfer all pending proceedings involving
commercial disputes to the Commercial Division. In the event,
the Court failed to do so, Section 15 (5) of the Act of 2015
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allowed the parties to the proceedings to draw the attention of
the Court for transfer. In both the appeals, none of the
parties, invoked Section 15 (5) of the Act of 2015 before the
learned Single Judge.
36. Section 15 of the Act of 2015 provides for transfer of pending
proceedings involving commercial disputes to the Commercial
Division or the Commercial Court or the Commercial
Appellate Division as the case may be subsequent to the
establishment of the same by the respective High Courts.
37. Tractel Tirfor India Pvt. Ltd. (Supra) considered the issue
of transfer architecture enshrined in Section 15 of the Act of
2015. It held as follows:-
“27. Legislature noted that there would be cases
involving commercial dispute as defined in Section 2 (1)
(c) pending on the date of the Act of 2015 coming into
force. In order to deal with such pending cases Section
15 of the Act of 2015 has put in place a transfer
architecture for the transfer of pending cases involving
commercial disputes to the Commercial Courts or the
Commercial Division of the Commercial Appellate Court
or the Commercial Appellate Division as the case may
be.
28. Sub-sections (1), (2), and (5) of Section 15 of the Act
of 2015 which has provided for transfer of suits,
applications and arbitration proceedings to the
Commercial Division contemplate that such suits,
applications and arbitration proceedings which are
pending as on the date of the Act of 2015 coming into
force, for its transfer. Transfer of a pending suit or
proceeding under the transfer architecture of Section 15
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of the Act of 2015 has to be of a suit or an application
therein or an arbitration proceeding which is capable of
being transferred as it is pending. For example, a
disposed of suit or application or arbitration proceeding
cannot be transferred. So also a suit or an application or
an arbitration proceeding not involving commercial
dispute as defined in Section 2 (1) (c ) can be
transferred.
29. Two jurisdictional facts have to exist
simultaneously before the transferee Court for a valid
exercise of powers under Section 15 of the Act of 2015.
Firstly, the Court exercising powers under Section 15 of
the Act of 2015 has evaluate as to whether or not the
subject of the suit or the application or the arbitration
proceeding involve a commercial dispute in terms of
Section 2 (1) (c) of the Act of 2015 and secondly whether
or not such proceeding is pending before it. By
pendency before the transferee Court one understands
that the suit or application or arbitration proceeding is in
law capable of being considered as pending in such
transferee Court. In other words, in order to ascertain
the pendency of the suit or application or arbitration
proceeding sought to be transferred the transferee Court
has to evaluate as to whether or not any procedural law
giving rise to any substantive right required the
dismissal of such suit or application or arbitration
proceeding by the transferee Court and not done by
such Court.”
38. In Awam Marketing LLP (Supra), this Bench noted various
authorities and held that since the suit in that appeal involved
a commercial dispute, directed transfer of such suit to the
Commercial Division. The impugned judgment and order in
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that appeal being passed by the Non-commercial Court in a
suit involving a commercial dispute within the meaning of the
Act of 2015, the same was set aside, due to lack of
jurisdiction. The suit involved therein, was filed subsequent to
the Act of 2015 coming into force.
39. As rightly pointed out by Mr. Tilak Bose, learned Senior
Advocate, the Act of 2015 makes a distinction between the
pending proceedings and proceedings which are filed
subsequent to October 23, 2015. Section 15 of the Act of 2015
deals with the proceedings pending prior to October 23, 2015.
Sub-section (1) of Section 15 provides for all suits and
applications including applications under the Act of 1996
relating to a commercial dispute of specified value pending in
a High Court where a Commercial Division is constituted to be
transferred to the Commercial Division.
40. Viewed from such perspective, both the impugned judgments
and orders were passed by a Court which lacked jurisdiction
on the respective dates of the impugned judgments and
orders.
Objections as to Jurisdiction
41. Kiran Singh And Others (Supra) considered valuation of a
suit which was subsequently questioned. It noticed Section 11
of the Suit Valuation Act, 1887 which provides that objection
to the jurisdiction of a Court passed on overvaluation or
undervaluation shall not be entertained by an Appellate Court
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except in the manner and to the extent mentioned in the
Section. In the facts and circumstances of the present case,
none of the parties in the two appeals questioned the
valuation of the two initial proceedings.
42. Hiralal Patni (Supra) considered an objection under Section
47 of the Code of Civil Procedure, 1908 objecting to the
execution of the decree. It held that, when, the Court in which
the suit was originally instituted was entirely lacking
jurisdiction, whatever happens subsequently was null and
void and that, consent of the parties will not vest a Court
lacking inherent jurisdiction.
43. In the facts and circumstances of the two appeals before us,
the initial filing cannot be said to be without jurisdiction or
that, the High Court was incompetent to receive any of the
two proceedings or to adjudicate thereon. However, with the
Act of 2015 coming into effect on and from October 23, 2015
and by reason of Section 7 read with Sections 10 and 15 of
the Act of 2015 thereof, the Non-commercial Division of the
Calcutta High Court lost the jurisdiction to hear and decide
the two proceedings. Therefore, when the two impugned
judgment and orders were passed, the Court lacked
competence to do so.
44. Subhash Mahadevasa Habib (Supra) considered Section 21
and 21A of the Code of Civil Procedure, 1908. It noted the
distinction between the lack of inherent jurisdiction and lack
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of territorial or pecuniary jurisdiction. In the facts and
circumstances of the present case, the two appeals do not
involve lack of inherent jurisdiction or pecuniary jurisdiction
at the time when, the two proceedings were instituted.
However, by virtue of Sections 7, 10 and 15 of the Act of 2015
when, the impugned judgment and orders in the two
proceedings were passed, the Court did not possess requisite
competence to hear and decide such proceedings.
45. Asma Lateef And Another (Supra) held that, jurisdiction of
a Civil Court means the entitlement of the Civil Court to
embark upon an enquiry as to whether the cause brought
before it by the plaintiff in a manner prescribed by law and
whether a good cause for grant of interim relief was set up by
the plaintiff. The question of jurisdiction is to be determined
at the commencement and not at the conclusion of the
enquiry. It noticed various authorities. One of the authorities
noticed was (2004) 1 SCC 287 (Rafique Bibi Vs. Sayed
Waliuddin) where, it was held that, a decree can be said to be
without jurisdiction and hence a nullity if the Court passing
the decree usurped a jurisdiction which it did not possess.
Applying such test in the facts and circumstances of the two
appeals, with the deepest of respect, the two Courts which
passed the two impugned judgment and orders, did not
possess requisite jurisdiction on the date of delivery of the two
impugned judgment and orders by virtue of the Act of 2015.
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46. The contention that, the same learned Single Judge, was
vested with jurisdiction both of Commercial Division as also
the non-Commercial Division, and therefore, the impugned
judgments and order cannot be said to be a nullity, cannot be
accepted. The question is not of a particular Hon’ble Judge
being vested with both the jurisdictions or not. The question
is as to whether, the concerned Hon’ble Judge, dealt with the
matter in terms of the Act of 2015 or not.
Validity of the orders passed by the transferee Court
47. With the constitution of the Commercial Division, in terms of
the Act of 2015, matters pending before the High Court,
involving commercial dispute of the specified value were
required to be transferred to the Commercial Division. On the
Constitution of the Commercial Division the jurisdiction of the
non-Commercial Division stood limited to decide whether or
not such matters involved commercial dispute of the specified
value as prescribed and whether or not, the same were
capable of being transferred to the Commercial Division. In a
given case, a party to a proceeding involving a commercial
dispute of the specified value, filed prior to the constitution of
the Commercial Division, may have expired and the heirs and
legal representatives of such party not brought on record. At
the time of exercise of powers under Section 15 of the Act of
2015, the transferee Court will be empowered to consider
whether the proceedings stood abated by reason of non-
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impleadment of the surviving heirs and legal representative of
the deceased party or whether, the cause of action survived
such death, rendering the proceedings in capable of being
transferred to the Commercial Division. Therefore, a non-
Commercial Court considering a proceeding involving a
commercial dispute of the specified value, pending before it,
subsequent to the constitution of the Commercial Division,
possess the limited jurisdiction of transferring such
proceedings and deciding as to whether or not, such
proceedings capable of being transferred.
48. The orders passed by the transferee Court, while exercising
such limited powers, are amenable to an appeal under Clause
15 of the Letters Patent, 1865 inasmuch as, the transferee
Court is neither a Commercial Division Court constituted
under the Act of 2015 nor is it shackled by the provisions of
appeal under the Act of 2015. Rigours of appeals as enshrined
in the Act of 2015 are applicable to orders passed by the
Commercial Division constituted under the Act of 2015 and
are not applicable to any other Court or its orders.
49. The Act of 2015 puts in place a different procedural regime for
the expeditious disposal of a commercial dispute of a specified
value. Substantial rights of the parties are created by the
procedure prescribed by the Act of 2015 governing the
treatment and disposal of commercial dispute of specified
value by a Commercial Division or a Commercial Court or
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Commercial Appellate Division. Such procedural regime as
prescribed under the Act of 2015, creating substantial rights,
involving all the parties, is not available to a non-Commercial
Division or a non-Commercial Court. Therefore, if a non-
Commercial Court or a non-Commercial Division proceeds to
decide a commercial dispute involving a specified value,
subsequent to the constitution of the Commercial Division, in
which such proceedings was pending before the Court, then,
on the score that such non-Commercial Court decided the
rights between the parties on a procedural regime different to
those prescribed under the Act of 2015, the decision rendered
would be vitiated. As noted above, the procedural regime
introduced by the Act of 2015, creates substantial rights for
the parties governed thereunder. This decision making
process of a non-Commercial Court deciding a commercial
dispute of a specified value in respect of a proceeding which
was pending before it, subsequent to the constitution of the
Commercial Division stands vitiated since, the procedural
regime introduced by the Act of 2015 is not applicable.
Therefore the contention that, the same judge was capable of
hearing both the matters, is of no consequence. The
procedures for hearing in the two jurisdictions are different.
Procedural regime in the Commercial Division is distinct and
different from the procedural regime of a non-Commercial
Division.
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50. The Co-ordinate Bench in Surajit Sen (supra) noted that,
upon the Act of 2015 coming into effect and a Commercial
Division or a Commercial Appellate Division, being set up by
the High Court, it was the duty of the Court or its department
to indicate matters which pertain to the commercial dispute.
It also noted that the fact that no such bifurcation of matters
were done would not imply that upon the setting up of a
Commercial Division the Act of 2015 would not affect matters
pertaining to commercial disputes.
51. The failure to identify and transfer pending matters involving
commercial disputes of the specified value to the Commercial
Division on its constitution, does not empower the Court in
which such proceeding is pending to decide the same on the
basis of the procedural regime introduced by the Act of 2015.
A decision by such Court rendered in such proceeding would
not attract the rigours of appeal provisions enshrined in the
Act of 2015 as the proceeding was not dealt with by the
designated Court under the Act of 2015. The decision
rendered by such Court being not a designated Court under
the Act of 2015, is therefore, governed by the laws other than
the Act of 2015 and consequently, in the context of the High
Court, would be governed by Clause 15 of the Letters Patent,
1865, so far appeals are concerned.
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Answer to Issue (i)
52. In view of the discussions above, issue No. (i) is decided by
holding that on a Commercial Division or a Commercial
Appellate Division being established by the High Court, a
proceeding under Section 34 of the Act of 1996, pending on
the date of such constitution, was required to be transferred
to the Commercial Division as the case may by in terms of
Section 15 of the Act of 2015. The provisions of the Act of
2015 stands attracted to the pending proceedings when, such
proceeding involve a commercial dispute of a specified value,
upon the constitution of the Commercial Division.
Answer to Issue (ii)
53. Issue No. (ii) is decided by holding that, a judgment and order
passed by a non-Commercial Division Court in a proceeding
filed before it prior to the Act of 2015 coming into effect,
involving a commercial dispute of the specified value
subsequent to the constitution of the Commercial Division is a
nullity.
Answer to Issue (iii)
54. Issue No. (iii) is answered by holding that, an Appeal Court in
the non-Commercial Division can invoke Clause 15 of the
Letters Patent, 1865 to interfere with the judgment and order
of a non-Commercial Division Single Judge passed in a
proceeding involving a commercial dispute of the specified
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value subsequent to the establishment of the Commercial
Division.
Answer to Issue (iv)
55. Issue No. (iv) is answered by holding that, since the
proceeding under Section 34 of the Act of 1996 was filed
before a Court of competent jurisdiction and since,
subsequent to the constitution of the Commercial Division
under the Act of 2015, the non-Commercial Division lost
jurisdiction, the impugned judgment and order is required to
be set aside and the proceedings remanded for fresh
consideration by the Commercial Division. Necessary direction
should be issued to the department to effect the same.
Conclusion
56. In view of the discussions above, both the impugned judgment
and orders are held to be a nullity.
57. AP/590/2011 being the proceeding under Section 34 of the
Act of 1996 is transferred to the Commercial Division, so also
AP/915/2011 involved in the second appeal.
58. The department will renumber both the proceedings in the
Commercial Division. Department will transmit all records
relating to the two proceedings to the Commercial Division.
Upon the same being done, the department will treat
AP/590/2011 and AP/915/2011 as disposed of in the Non-
commercial Division.
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59. The learned Single Judge in the Commercial Division is at
liberty to hear and decide AP/590/2011 and AP/915/2011
from such stage as such Court may deem fit and proper. The
respective parties in the two proceedings will not be
prejudiced by any of the observations made in the respective
impugned judgments and orders as also this judgment and
order in any manner, whatsoever. All points raised by the
respective parties including the issue as to the maintainability
of the two proceedings are kept open to be decided.
60. APO/48/2021 and APO/141/2023 are disposed of, without
any order as to costs.
(DEBANGSU BASAK, J.)
61. I agree.
(MD. SHABBAR RASHIDI, J.)
62. Prayers for stay of the judgment and order made on behalf of
the respondents in the two appeals, are considered and
rejected.
(DEBANGSU BASAK, J.)
(MD. SHABBAR RASHIDI, J.)
KB
AR(CR)
