[Cites 6, Cited by 0]
Calcutta High Court
Shree Bajrang Land And Trading Company vs Biren Commercial Private Limited And ... on 13 February, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
2026:CHC-OS:54-DB
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(COMMERCIAL DIVISION)
ORIGINAL SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
AO-COM 25 of 2025
IA No. GA-COM 1 of 2025
Shree Bajrang Land and Trading Company
Vs.
Biren Commercial Private Limited and Others
For the appellant : Mr. Jishnu Chowdhury, Sr. Adv.
Mr. Sarvapriya Mukherjee, Adv.
Mr. Varun Mothari, Adv.
Mr. A. Agarwalla, Adv.
Ms. Priyanka Garain, Adv.
For the respondents : Mr. Soumabho Ghose, Adv.
Mr. Saptarshi Mandal, Adv.
Ms. Tiana Bhattacharya, Adv.
Hearing concluded on : 22.01.2026
Judgment on : 13.02.2026
Md. Shabbar Rashidi, J.:-
1. The instant appeal, at the behest of the plaintiff in the
original suit, is directed against impugned judgment and order dated
2026:CHC-OS:54-DB
September 2, 2025 passed in GA No. 8 of 2023 arising out of CS-COM
No. 45 of 2024.
2. By the impugned judgment and order, the learned Trial
Judge, dismissed IA GA 8 of 2023 and refused to recall its earlier
order passed on January 31, 2025 through which the original suit
being CS No. 117 of 2009 was directed to be transferred to the
Commercial Division and renumbered as a Commercial Suit.
3. Learned Senior Advocate appearing for the appellant
submitted that the learned Single Judge failed to appreciate that the
original suit was not in respect of any immoveable property being
exclusively used for trade and commerce and as such, the subject
matter of the suit did not fall within the definition of commercial
disputes within the meaning of Section 2 (1) (c) (vii) of the Commercial
Courts Act, 2015.
4. Learned Senior Advocate for the appellant further submitted
that the learned Single Judge overlooked the fact that the cause of
action for the suit arose out of a tortious act. It was contended that
the learned Trial Judge failed to appreciate that the principal relief
claimed in the suit was for damages on account of slander of title.
According to learned Senior Advocate, the definition of commercial
disputes under Section 2 (1) (c) of the Commercial Courts Act, 2015 is
exhaustive and does not include the tortious wrongs. Learned Senior
Advocate also submitted that tortious wrongs not arising out of
2026:CHC-OS:54-DB
mercantile documents, partnership disputes, supply of goods or
similar transaction were not covered by the definition of commercial
disputes under Section 2 (1) (c) of the Act of 2015.
5. Learned Senior Advocate for the appellant further submitted
that the learned Trial Judge failed to appreciate that the case made
out in the plaint would decide the nature of the suit. It cannot be
decided on the basis of counterclaim made by the defendant. Learned
Senior Advocate also contended that the case made out in paragraph
28 of the plaint disclosed a case of slander of title and as such,
learned Single Judge was not justified in holding the suit to be a
commercial suit.
6. Learned Senior Advocate also submitted that the learned Trial
Judge wrongly noted the submission made on behalf of the plaintiff in
the suit on January 31, 2023 that the suit was of a commercial
nature. It is contended that it was learned advocate for the defendant
who had appeared on such date and made a submission that the suit
was in the nature of commercial suit. Learned Senior Advocate for the
appellant also submitted that the learned Single Judge failed to
appreciate that the principal prayers in the suit were not in respect of
breach of Memorandum of Understanding. The learned Single Judge
wrongly concluded that the pleadings or claim were based on
Memorandum of Understanding and that prayers (c) and (d) of the
plaint were consequential or incidental.
2026:CHC-OS:54-DB
7. Relying upon (2025) 4 Supreme Court Cases 38 (Central
Bank of India and Another Vs. Prabha Jain and Others), learned
Senior Advocate submitted that even if, prayers (a) and (b) in the
plaint were held by the learned Trial Judge to be commercial disputes,
it ought not have transferred the suit to commercial division in so far
as prayers (c) and (d) thereof related to slander of title and surely did
not fall in the realm of commercial dispute within the meaning of
Section 2(1)(c) of the Act of 2015 which was well within the
jurisdiction of learned Single Judge.
8. Learned Senior Advocate appearing for the appellant also
submitted that by the impugned order, the learned Single Judge
refused to recall its earlier order passed on January 31, 2025, through
which, the original suit being CS No. 117 of 2009 was directed to be
transferred to the Commercial division and renumbered as a
Commercial Suit. Therefore, an appeal under Section 13 of the
Commercial Courts Act, 2015 before the Commercial Appellate
Division is maintainable. In support of his contention learned Senior
advocate relied upon 2024 SCC OnLine Cal 494 (Prasad
Ecostructure L.L.P. Vs. City Devcon Private Ltd. And Others).
9. On the other hand learned senior advocate appearing for the
respondent contended that the instant appeal against the impugned
order is not maintainable in the Commercial Appellate Division.
According to learned Senior Advocate for the respondent, the
2026:CHC-OS:54-DB
impugned order was passed by learned Single Judge in its non-
commercial jurisdiction which is not appealable in terms of the
provisions of Section 13 of the Commercial Courts Act, 2015.
10. Since the parties have raised a dispute as to the
maintainability of the instant appeal, we think it appropriate to
proceed to decide such issue before entering into the merits of the
appeal.
11. The appellant filed CS No. 117 of 2009 in the Original Side of
the High Court exercising ordinary civil jurisdiction which was later
renumbered as CS COM No. 45 of 2024. The appellant/plaintiff filed
the suit stating inter alia that the plaintiff acquired the suit properties
on lease with liberty to sublet such property. Later on, the
defendants/respondents approached the plaintiff for sub-lease of the
suit properties. The terms and conditions of such lease having been
agreed between the parties; both the parties entered into and executed
a 'Memorandum of Understanding' in respect of the transaction of
sub-lease. According to the agreed terms and conditions and the
'Memorandum of Understanding', the defendants/respondents
advanced certain amount of money towards consideration. The
remaining amount was to be paid by the lessee within specified time
and was obliged to get a deed of sub-lease executed on payment of the
balance consideration.
2026:CHC-OS:54-DB
12. It was further contention of the appellant/plaintiff that
inspite of several extensions of time to pay off the remaining part of
consideration, the defendants/respondents failed and neglected to
take steps towards payment of the balance consideration and to get
the deed of sub-lease executed and registered causing substantial loss
to the plaintiff/appellant. Not only that, the defendants/respondents
also raised doubts with regard to the title of the plaintiff/appellant in
respect of the suit properties, although, during the negotiations and at
the time of execution of 'Memorandum of Understanding', the
respondents were satisfied with the title of the plaintiff/appellant. By
such action on the part of respondents/defendants, the appellant
suffered huge loss and damages on account of a cloud cast on its title
over the suit properties.
13. Upon the aforementioned facts, the appellant filed CS No. 117
of 2009 in the Original Side of the High Court exercising ordinary civil
jurisdiction. In such suit, the plaintiff/appellant pleaded to the
following: -
"23. The plaintiffs states that property prices have declined
substantially since the time of the said memorandum of
understanding. At present, if the said premises is
subleased on the same terms as those agreed with the
defendant No. 2, the plaintiff is not liberty to receive as
consideration a sum exceeding ₹ 10 crore. The plaintiff has
been deprived of the balance consideration amount of
₹13,37,50,000/- which some the plaintiff was to receive by
2026:CHC-OS:54-DB
2 June 2008. This deprivation is not for any default of the
terms of the memorandum of understanding by the
plaintiff. Deprivation of receipt and user of the said sum of
money has resulted in further loss to the plaintiff which is
reasonably assessed at ₹5 crore only.
24. The defendant No. 1 has also committed breach of
sublease by not getting it registered after execution on 16
October 2008 and why not making the balance payment
and discharging further obligations under the said
memorandum of understanding."
14. The plaintiff/appellant further pleaded in his plaint to the
following effect: -
"30. The said letter dated March 16, 2009 in the usual
course ought to have been published to the stenographer,
the typist and concerned assistant and partners of M/s
Khaitan & Co, advocates. While giving instructions to issue
the later the contents thereof in the usual course would
have been published to the concerned assistant/secretary
of the defendant No. 3 and the concerned officers of the
defendant Nos. 1 and 2. The said letter has also been
published to the plaintiff's advocates, M/s L. P. Agarwalla
& Co., its partners, officers and staffs. The said letter in
the usual course was read by the plaintiff and its partners,
assistant, secretaries and the defendants are well aware
of this fact and intended the later to be published to the
aforesaid persons.
31. The plaintiff has suffered loss and damages by reason
of publication of the said letter dated 16 March 2009 which
is reasonably assessed at ₹ 5 crore. In the alternative the
plaintiff claims and enquiry into damages and decree for
such sum as may be found due and payable."
2026:CHC-OS:54-DB
15. On the basis of the facts so pleaded in the plaint, the plaintiff
prayed for the following reliefs amongst other reliefs, namely: -
a) The decree of ₹15 crore as pleaded in paragraph
23 and 24 as against the defendants jointly
and/or severally and in the alternative an enquiry
into damages and decree for such sum as may be
found due and payable upon such enquiry.
b) Decree for determination as to what extent the
defendant Nos. 1 and 2 are liable to the plaintiff
for the loss and damages suffered by the plaintiff.
c) Decree for ₹5 crore as pleaded in paragraph 30
above and in the alternative an enquiry to
damages and decree for such sum as may be
found due and payable against the defendants
jointly and/or severally.
d) Perpetual injunction restraining the defendants
the agents, servants from publishing or causing to
be published statements concerning the plaintiff's
right title and interest in the premises No. 134A,
Beliaghata Road, Kolkata - 700015 as contained
in the letter dated March 16, 2009 and/or similar
statements."
16. The defendants entered appearance in the suit and filed their
respective written statements. In such written statements, the
defendants raised questions on the right, title and interest of the
plaintiff over the suit properties. The defendants raised a counterclaim
in their written statement and prayed for a decree for realization of
2026:CHC-OS:54-DB
₹6,25,75,342/- against the plaintiff. In such suit, the defendant filed
an application seeking attachment before judgment of the properties
belonging to plaintiff in view of their prayer for realization of
₹6,25,75,342/- against the plaintiff. Such application was refused for
which, the defendant/respondent filed an appeal being APOT 441 of
2016.
17. In pursuance of the order dated August 6, 2019 passed in
APOT 441 of 2016, which was subsequently clarified by an order
dated April 18, 2024, the learned Trial Judge proceeded to pass an
order dated January 31, 2025 whereby the original suit being CS 117
of 2009 was directed to be transferred to Commercial Division of this
Court. The suit was transferred accordingly and renumbered as CS-
COM 45 of 2024. The appellant/plaintiff applied for recalling of the
order dated January 31, 2025 which was refused by the impugned
order.
18. As it appears, the impugned order dated September 2, 2025
was passed by learned Single Judge in CS 117 of 2009 exercising its
jurisdiction under Ordinary Original Civil Jurisdiction. The instant
appeal has been preferred in the Commercial Appellate Division of the
High Court apparently, in terms of Section 13 of the Commercial
Courts Act, 2015. Disputes with regard to maintainability of the
appeal in the present form and forum, has been raised by the
defendants/respondents.
2026:CHC-OS:54-DB
19. In Prasad Ecostructure L.L.P. (supra), a Coordinate Bench
of this Court after noting the provisions of Section 13 of the Act of
2015, observed as follows:-
"13. A reading of section 13 makes it plain that it deals with
appeals from orders passed by a commercial court or a
Commercial Division of a High Court. An appeal lies to the
commercial appellate Court in the district if an order is
passed by a court below the level of a district judge and to
the commercial appellate division of the High Court when it
is passed by the district judge. To attract Section 13 the
order has to be passed by the court exercising the
jurisdiction of a commercial court as provided in the said Act.
14. Section 15 operates in an entirely different field. If a civil
court before which a suit is pending decides that the matter
is not commercial in nature, by an application the Appellate
Commercial Division of the High Court may be approached
by a party complaining of such refusal. Then, exercising
jurisdiction as a commercial court under the said Act the
Appellate Division proceeds to decide whether the dispute is
commercial or not.
15. As opposed to this when the civil court under Section 15
decides that the dispute is commercial and should be
transferred to the commercial court and a party is aggrieved
by this decision, a similar provision is not provided in
Section 15.
16. To my mind when an ordinary civil court exercising the
powers vested in it under Section 15 of the Commercial
Courts Act, 2015 adjudicates on whether the suit is to be
transferred to the commercial court or not, it continues to
function as an ordinary civil court and cannot be described
2026:CHC-OS:54-DB
as a commercial court under the said Act. Hence any order
passed by it is not appealable under Section 13 of the said
Act. If the civil court rules that the suit is to be transferred to
the commercial court the remedy under Section 15 is also not
available."
20. As noted hereinabove, the impugned order was passed by
learned Single Judge in the Commercial Division.
21. The initial order of transfer dated January 31, 2025 was
passed under Section 15 of the Act of 2015 by the Non-Commercial
Division of the High Court. Such order is appealable under Clause 15
of the Letters Patent, 1865. The impugned judgment and order,
refusing to recall the order dated January 31, 2025 was passed by the
Commercial Division. Since, the impugned judgment and order does
not qualify the parameters laid down under Section 13 of the Act of
2015, we do not find the present appeal maintainable. However, we
keep open the points relating to the validity and legality of the transfer
of the case from the Non-Commercial Division to the Commercial
Division, as made by the order dated January 31, 2025, open to be
decided in an appropriate proceeding.
22. For the aforesaid reasons, we are of the view that the instant
appeal being AO-COM 25 of 2025 is not maintainable and accordingly
dismissed as not maintainable. We however, clarify that we have not
entered into and decided the merits of the appeal. All points raised by
the parties are kept open to be decided by the appropriate forum.
2026:CHC-OS:54-DB
23. Consequently, all pending applications are disposed of.
24. Urgent photostat certified copy of this judgment, if applied
for, be supplied to the parties on priority basis upon compliance of all
formalities.
[MD. SHABBAR RASHIDI, J.]
25. I agree.
[DEBANGSU BASAK, J.]
