Subrata Kumar Ghose vs Rites Limited & Anr
2023 Latest Caselaw 237 Cal/2

                   IN THE HIGH COURT AT CALCUTTA

                   (Ordinary Original Civil Jurisdiction)

                               ORIGINAL SIDE



Present:

The Hon'ble Justice Krishna Rao



                                CS/69/2017


                            Subrata Kumar Ghose
                                     Vs.
                            RITES Limited & Anr.



            Mr. Arijit Basu
                                           ...For the plaintiff.




Heard on                  : 10.01.2023

Judgment on               : 25.01.2023

Krishna Rao, J.:


      The plaintiff has filed the instant suit praying for decree of Rs.

2,89,65,649.00/- against the defendant no. 1 along with interest @ 18% per

annum and other relief.


      In response to an Open Tender no. 49/OT/DVC KTPS/OHE/PKG-

VIIA/2010, dt. 21.09.2010, the plaintiff has participated in the said tender

process for design, drawing, supply, erection, testing and commissioning of
                                          2


25 KV AC OHE (Phase - I) and switching station in connection with

construction of Railway infrastructure for Koderma Thermal Power Station

(KTPS) of the defendant no. 2.


      The defendant no. 1 being the agent of the defendant no. 2 had issued

a Letter of Acceptance in favour of the plaintiff in connection with the above

mentioned tender work for a total contract price of Rs. 4,63,14,319.39/- dt.

09/10.12.2010

. On 28.12.2010, the defendant no. 1 has issued work order

with respect of the aforementioned work to the plaintiff. On 17.01.2011, the

site was handed over to the plaintiff but after mobilising resources for

survey of the site, the plaintiff realise that the civil portion of the work was

incomplete with regard to earth filling and soil level formation. By way of

communication dt. 04.02.2011, the defendant no. 1 had requested the

plaintiff for depositing of Performance guarantee and other documents. The

Railway authorities have approved the drawing submitted by the plaintiff on

11.04.2011 and thereafter on 05.05.2011, a formal contract was entered

between the plaintiff and the defendant no. 1.

The plaintiff has filed the suit against the defendants for recovery of

amount as the defendant no. 1 had terminated the contract of the plaintiff

with effect from 21.01.2012 on the ground of poor progress of work and the

earnest money deposit, performance guarantee and security deposit were

also forfeited by the defendant no. 1.

The defendants have not filed the written statement and accordingly

the suit is proceeded as 'Undefended Suit' against the defendants. The

plaintiff has examined himself as PW-1 and during his evidence altogether

77 documents were exhibited.

Now the suit is fixed for passing judgment. After going through the

pleadings of the plaint, documents and the evidence of the plaintiff, this

Court finds that there was a contract between the plaintiff and the

defendant and due to termination of the contract and forfeiture of earnest

money deposit, performance guarantee and security deposit, the plaintiff

has filed the instant suit. This Court finds that the suit filed by the plaintiff

is in connection with the commercial dispute which is required to be tried by

the Commercial Court.

The plaintiff has filed the suit on 03.04.2017 before this Court by

obtaining leave under Clause 12 of Letters Patent and Order II Rule 2 of the

Code of Civil Procedure and had not filed the suit before the Commercial

Court or Commercial Division.

Section 15 of the Commercial Courts Act, 2015 reads as follows : -

"Section 15 of the Act, 2015 provides as under:-- Section 15 : - Transfer of pending cases.--

(1) All suits and applications, including applications under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of a Specified Value pending in a High Court where a Commercial Division has been constituted, shall be transferred to the Commercial Division.

(2) All suits and applications, including applications under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of a Specified Value pending in any civil court in any district or area in respect of which a Commercial Court has been constituted, shall be transferred to such Commercial Court:

Provided that no suit or application where the final judgment has been reserved by the Court prior to the constitution of the Commercial Division or the Commercial Court shall be transferred either under sub-section (1) or sub-section (2).

A bare reading of Section 15 (2) of the Act, 2015 shows that all suits and

applications, including application under the Arbitration and Conciliation

Act, 1996 relating to a commercial dispute of a Specified Value pending in

any civil court in any district or area in respect of which a Commercial Court

has been constituted, shall be transferred to such Commercial Court, with

the exception that if final judgment has been reserved such case shall not be

transferred.

Section 15 has provided for a mechanism by which, a suit or a

proceeding governed by the Act of 1996 which involves a commercial dispute

within the meaning of the Act of 2015 and is of a specified value as specified

under the Act of 2015, has to be transferred to the Commercial Division or

Commercial Court, as the case may be, for consideration. However, in

matters which comes within the purview of Section 15 of the Act of 2015,

and where, final judgement has been reserved, then, such suit or

proceedings are not to be transferred to the Commercial Division or the

Commercial Court, as the case may be.

As has been noted herein above, suits and applications under the Act of

1996 pending before the regular court are required to be transferred to the

Commercial Division or the Commercial Court if it satisfies the criteria laid

down under Section 15 of the Act of 2015. Section 15 has provided for two

entry routes to the Commercial Division or the Commercial Court, as the

case may be, in respect of a suit or an application under the Act of 1996. A

suit or an application governed by the Act of 1996 can be transferred to the

Commercial Court or the Commercial Division, as the case may be, either by

the Court itself in seisin of such suit or the application under the Act of

1996, or on an application by the parties to the suit or the application under

the Act of 1996.

As per Section 2(1)(i), "specified value", in relation to a commercial

dispute, means the value of the subject-matter in respect of a suit, as

determined in accordance with Section 12, which shall not be less than

three lakh rupees or such higher value, as may be notified by the Central

Government. Section 12 of the Act prescribes the methodology for

determination of Specified Value.

Section 6 of the Commercial Courts Act, 2015 deals with jurisdiction of

Commercial Court, which is extracted below for ready reference:--

"6. Jurisdiction of Commercial Court. -- The Commercial Court

shall have jurisdiction to try all suits and applications relating to a

commercial dispute of a Specified Value arising out of the entire

territory of the State over which it has been vested territorial

jurisdiction."

The defect of jurisdiction strike at the authority of the Court to pass

an order which cannot be cured either by way of consent or waiver of the

party. The present suit is filed on 03.04.2017 and leave under Clause 12 of

the Letters Patent and Order II Rule 2 of CPC was obtained on the same day.

On the date of filing of the instant suit Commercial Courts Act, 2015 has

already came into force with effect from 23.10.2015 but the plaintiff has

filed the suit before this Court, thus this Court has no jurisdiction to

entertain the suit filed by the plaintiff.

In view of the above, CS 69 of 2017 is dismissed. Decree be drawn

accordingly.

(Krishna Rao, J.)