[Cites 23, Cited by 0]
Calcutta High Court
Tractel Tirfor India Pvt. Ltd vs Tractel International S.A.S on 21 January, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
1
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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. 126 of 2023
IN
CS 340 OF 2000
IA NO: GA 2 OF 2024
GA 4 OF 2025
TRACTEL TIRFOR INDIA PVT. LTD.
VS
TRACTEL INTERNATIONAL S.A.S.
For the Appellant : Mr. Abhijit Chatterjee, Sr. Adv.
Mr. Anindya Basu, Adv.
Mr. Amit Kumar Saha, Adv.
For the Respondent : Mr. Debnath Ghosh, Sr. Adv.
Ms. Rajshree Kajaria, Adv.
Mr. Soumabho Ghose, Adv.
Ms. Vrinda Kedia, Adv.
Mr. Ankit Prakash, Adv.
Hearing Concluded on : December 12, 2025
Judgement on : January 21, 2026
DEBANGSU BASAK, J.:-
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Contents
Scope of the Appeal .......................................................................................................................................... 2
Contentions of the Appellant ......................................................................................................................... 2
Contentions of the Respondent No. 1 ......................................................................................................... 6
Genesis ................................................................................................................................................................. 8
Issues .................................................................................................................................................................. 10
Analysis .............................................................................................................................................................. 10
(i)Transfer architecture under Section 15........................................................................................... 10
ii) Proceeding before the Transferee Court. ........................................................................................ 13
(iii) Lodgement of Writ of Summons and its failure. ........................................................................ 15
(iv) Adjudication of a matter where a Court lacks jurisdiction .................................................... 21
Conclusion......................................................................................................................................................... 26
Scope of the Appeal
1. Appellant has assailed the order dated March 28, 2023
passed in IA GA 5 of 2023 in CS 340 of 2000.
2. By the impugned order dated March 28, 2023, learned Single
Judge has dismissed the application of the appellant seeking
extension of time to file written statement.
Contentions of the Appellant
3. Learned Senior Advocate appearing for the appellant has
contended that, the writ of summons of the suit was never served
upon the defendant as, the same was never lodged by the plaintiff.
Therefore, there was no delay in filing the written statement. In fact,
the suit is liable to and should be dismissed for not lodging the writ
of summons.
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4. In support of the contention that, the writ of summons was
not lodged by the plaintiff in the suit, learned Senior Advocate
appearing for the appellant has drawn the attention of the Court to
the order dated November 7, 2025 and the report of the office of the
Sheriff, pursuant to the order dated November 7, 2025. He has
pointed out that, the report of the Office of the Sheriff dated
November 11, 2025 states that, no writ of summons for the suit was
ever lodged. Consequently, he has contended that, the question of
the time period to enter appearance by the appellant in the suit did
not commence. Resultantly, the time period to file written statement
has not commenced.
5. Learned Senior Advocate appearing for the appellant has
contended that, the finding of the learned Single Judge that, writ of
summons was lodged and served upon the appellant, is perverse in
view of the materials on record.
6. Learned Senior Advocate appearing for the appellant has
relied upon Chapter VIII Rules 6 and 7 of the Original Side Rule. He
has contended that, the Rules of the Original Side prescribe a time
limit for the purpose of lodging the writ of summons. After expiry of
such period prescribed, the plaintiff has to obtain leave to lodge the
writ of summons. In the present case, the plaintiff has not lodged
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any writ of summons nor asked for extension of time to lodge the
writ of summons.
7. Learned Senior Advocate appearing for the appellant has
drawn the attention of the Court to Order IX Rule 2 of the Code of
Civil Procedure, 1908 and contended that, in the event of non-
lodgement of the writ of summons the suit is to be dismissed.
8. In support of the contentions that, the suit has to be
dismissed due to non-lodgement of the writ of summons. Learned
Senior Advocate appearing for the appellant has relied upon ILR
1955 Volume 1 Cal 119 (Bengal Chand Company vs. Durga
Sankar Gouri Sankar), 1994 Volume 2 Calcutta High Court
Notes 161 (State Bank of India vs. Tarit Appliances (P) Ltd. &
Ors.), 2005 SCC OnLine Cal 214 (East Bengal Steam Services
Ltd. Vs. East Bengal Steam Service & Engg. Works Workers Co-
operative Industrial Society Ltd. & Ors.), 2007 SCC OnLine Cal
690 (Bhairu Ratan Pachisia & Ors. Vs. International Club &
Ors.), 2007 SCC OnLine Bom 614 (Tardeo Properties Pvt. Ltd. Vs.
Bank of Baroda), 2009 SCC OnLine Cal 251 (Hindusthan Motors
Limited vs. National Insurance Company Limited), 2010 SCC
OnLine Cal 73 (NPR Finance Limited Vs. Deepak Jhunjhunwala).
9. Relying upon 2005 Volume 2 Supreme Court Cases 145
(Iridium India Telecom Ltd. vs. Motorola Inc.), learned Senior
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Advocate appearing for the appellant has contended that, in the
event of a conflict between the provisions of the Code of Civil
Procedure, 1908 and the Letters Patent, 1865, the Letters Patent,
1865 will prevail.
10. Relying upon 1972 Volume 4 Supreme Court Cases 683
(The Pullangoda Rubber Produce Co. Ltd. vs. State of Kerala
and Another), learned Senior Advocate appearing for the appellant
has contended that, an admission can be explained. The admission
that, the appellant had entered appearance in the suit and filed
written statement is to be understood in the context of the materials
presently available that is to say that, the writ of summons in the
suit was never served for the appellant to enter appearance in the
suit.
11. Learned Senior Advocate appearing for the appellant has
contended that, the order dated September 20, 2022 passed by the
learned Single Judge, posting the suit for ex parte hearing is not in
consonance with the provisions of Chapter IX Rule 3 of the Original
Side Rules as the writ of summons for the suit was not lodged for
service.
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12. Learned Senior Advocate appearing for the respondent No. 1
has contended that, the appellant itself stated that it filed written
statement in the suit. He has drawn the attention of the Court to the
order dated December 16, 2020 in this regard.
13. Relying upon the letter issued by the advocate-on-record for
the appellant learned Senior Advocate appearing for the respondent
No. 1 has contended that, the appellant entered appearance in the
suit initially on January 9, 2001 and subsequently with the change
of the advocate-on-record, on April 21, 2022. He has referred to
Chapter VIII Rule 15, of the Original Side Rules and contended that,
by reason of entering into appearance, the appellant waived the
service of the writ of summons.
14. Learned Senior Advocate appearing for the respondent No. 1
has drawn the attention of the Court to the fact that the provisions
of Order IX Rule 2 of the Code of Civil Procedure, 1908 was
introduced on July 1, 2002. Therefore, the authorities cited on
behalf of the appellant on the issue of dismissal of the suit has no
manner of application as, the suit was filed in 2000.
15. Learned Senior Advocate appearing for the respondent No. 1
has questioned the maintainability of the present appeal. He has
submitted that, the suit was transferred to the Commercial Court by
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an order dated January 24, 2023. The impugned order was passed
subsequent to the order of transfer to the Commercial Court on
January 24, 2023. Relying upon 2019 SCC OnLine Cal 3215
(Surajit Sen vs. Royal Bank of Scotland NV) and 2024 SCC
OnLine Cal 2530 (Sabri Properties Pvt. Ltd. and Others vs.
Frostees Exports (India) Pvt. Ltd.), learned Senior Advocate
appearing for the respondent No. 1 has contended that, the fact that,
the Court passing the impugned order dated March 28, 2023 did so
where the applications appeared in the non-commercial matters,
but, did not detract from the fact that, the appeal was not
maintainable.
16. Learned Senior Advocate appearing for the respondent No.1
has relied upon 2021 SCC OnLine Mad 17455 (Aarur
Tamilnadan vs. S. Shankar and Others) on the scope of appeal
under the provisions of the Commercial Courts Act, 2015. He has
relied upon 2025 SCC OnLine SC 582 (Garden Reach
Shipbuilders and Engineers Limited vs. Grse Limited Workmens
Union and Others) on the issue of allocation of business and
determination governing the subject matters which a Bench of the
Court may decide.
17. Learned Senior Advocate appearing for the appellant has
drawn the attention of the Court to Sections 2, 9, 13, 15 of the
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Commercial Courts Act, 2015. He has contended that, by reason
thereof the present appeal is not maintainable.
Genesis
18. The records made available to us have established that, the
present suit was filed on or about August 28, 2000 by the
respondent No. 1. Respondent No. 1 as the plaintiff had sought
reliefs regarding intellectual property rights in the suit. Respondent
No. 1 as the plaintiff had filed an interim application being GA No.
3480 of 2000 in which, from time to time diverse orders were passed.
The appellant as the defendant No. 1 was represented by an
advocate. In such application such advocate had entered appearance
on January 9, 2001. The present advocate-on-record for the
appellant had entered appearance on April 21, 2022.
19. The application of the respondent No. 1 being GA 3480 of
2000 had been dismissed for default on July 23, 2018. The
respondent No. 1 as the plaintiff had filed an application for
restoration of GA No. 3480 of 2000. By an order dated December 16,
2020, The learned Single Judge had allowed GA 2953 of 2019 and
restored GA 3480 of 2000. The order dated December 16, 2020 had
recorded that, the appellant filed written statement. The appellant
had, in fact, not filed any written statement as wrongly recorded on
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December 16, 2000. The impugned order has acknowledged that
such recording was incorrect.
20. By an order dated September 20, 2022 the learned Single
Judge had fixed the suit for ex parte hearing against the appellant
on November 18, 2022.
21. Appellant had applied for recalling of the order dated
November 18, 2022 and for extension of time to file written
statement by way of IA GA No. 5 of 2023 in which the impugned
order was passed rejecting such prayer.
22. By an order dated January 24, 2023 learned Single Judge
had directed the suit to be placed before the appropriate
determination as the subject matter related to intellectual property
rights. The suit had nonetheless appeared in the non-commercial
determination before the learned Single Judge on March 28, 2023,
June 19, 2023, June 26, 2023 and July 5, 2023.
23. We had called for the original plaint and on perusal thereof in
presence of the learned Counsel for the parties we found that the
Department treated the suit to be transferred to the Commercial
Division pursuant to the order dated July 5, 2023.
24. By a report dated March 10, 2025, the office of the Sheriff
has reported that, no writ of summons was ever lodged by the
respondent No. 1 as the plaintiff in CS No. 340 of 2000. Nothing has
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been placed before us to establish that such report is incorrect.
Office of the Sheriff has filed such report pursuant to the order dated
March 3, 2025.
Issues
25. The following issues have arisen for consideration in the
present appeal :-
i) Is the impugned order dated March 28, 2023 a nullity?
ii) Is the present appeal maintainable?
iii) Was the writ of summons in CS 340 of 2000 lodged by the
plaintiff therein?
iv) Was CS 340 of 2000 validly subsisting by reason of non-
lodgement of the writ of summons for an order of transfer under
Section 15 of the Act of 2015 to be passed?
v) To what relief or reliefs are the parties entitled to?
Analysis
(i)Transfer architecture under Section 15.
26. Since an issue of nullity of the impugned order has been
raised a decision on the same would have ramification on the other
issues raised, in the facts and circumstances of the present case. In
fact, decisions on the third and fourth issues would have impact on
the first and the second issues, also.
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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 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.
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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.
30. An evaluation on pendency by the transferee Court would not
involve an elaborate enquiry. Materials on record as on the date of
the transfer must establish that the suit or application or the
arbitration proceeding was incapable of being treated as pending. As
and by way of an example, a suit dismissed for default by the
transferee Court by an order passed prior to the date of transfer, but
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the suit register erroneously does not record the suit to be dismissed
for default, cannot be transferred by the transferee Court under
Section 15 of the Act of 2015 as the suit was not pending on such
date.
31. Similarly, if the Original Side Rules do not permit the suit to
be treated as pending by reason of default of lodging the writ of
summons for a period in excess of 3 years subsequent to the
institution of the suit, the same suit cannot be transferred under
Section 15 of the Act of 2015 as the same was not pending. Section
15 of the Act of 2015 permits transfer of pending suits, application
and arbitration proceeding. Transferee Court is therefore, obligated
by statute, that is, Section 15 of the Act of 2015 to arrive at a finding
that the suit is "pending" on the date of the transfer. Failure to do so
by the transferee Court will impinge upon the jurisdiction of the
transferee Court to exercise powers under Section 15 of the Act of
2015.
ii) Proceeding before the Transferee Court.
32. The respondent No. 1 had filed CS 340 of 2000 seeking relief
with regard to intellectual property rights. The suit having been filed
prior to the Act of 2015 coming into effect, and the same being
shown as pending, interlocutory applications relating to such suit
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appeared in the non-commercial division of this Hon'ble Court,
before the learned Single Judge.
33. The first order on the issue as to whether the suit is required
to be transferred to the Commercial Division or not, is dated January
24, 2023 when the learned Single Judge had directed the suit to be
placed before the appropriate determination as the subject-matter
related to intellectual property rights.
34. None of the parties to the suit had taken steps pursuant to or
in terms of the order dated January 24, 2023. Parties had continued
to treat the suit as a non-commercial matter as will appear from
their conduct subsequently. The suit had appeared in the non-
commercial list of the learned Single Judge on March 28, 2023 when
the impugned order was passed and subsequent thereto on June 19,
2023, June 26, 2023 and July 5, 2023. The application of the
appellant for extension of time to file written statement had been
decided by the impugned order dated March 28, 2023 when the
matter had appeared in the non-commercial list of the learned Single
Judge.
35. Department had transferred the suit to the Commercial
Division pursuant to the order dated July 5, 2023. The order dated
July 5, 2023 which the Department has referred to as the order
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directing transfer of the suit to the Commercial Division is as
follows:-
"The Court : The matter be placed in the Commercial Division and shall
appear in the list on 13th July, 2023 accordingly."
36. The order dated July 5, 2023 as quoted above, does not show
that the learned Single Judge has expressed any view with regard to
the subject-matter of the suit. In other words, learned Single Judge
did not pronounce that the subject-matter of the suit has fallen
within the definition of "commercial dispute" under Section 2 (1)(c) of
the Act of 2015. The learned Judge also did not take into
consideration whether or not the suit was capable of being
considered as pending as on the date of the order of transfer.
37. Reasons being sine qua non for the validity of an order and
the order dated July 5, 2023 suffering from the vice of no reasons,
the same has to be classified as a nullity. In our view, the order
dated July 5, 2023 which the Department has relied upon as the
order of transfer of the suit from the non-commercial to the
Commercial Division of this Hon'ble Court, not being informed with
reasons is a nullity.
(iii) Lodgement of Writ of Summons and its failure.
38. The respondent has filed the suit on August 28, 2000. Report
of the office of the Sheriff dated March 10, 2025 has established that
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no writ of summons was ever lodged by the respondent No. 1 as the
plaintiff in the suit.
39. Chapter VIII Rules 6 and 7 of the Original Side Rules have
specified the time limit for lodging the writ of summons in the suit.
They have also specified that, on the expiry of the time period
specified for lodging the writ of summons, the office of the Sheriff
cannot accept the writ of summons without express leave being
granted by the Court in this regard. Respondent No. 1 as the plaintiff
has not applied for such leave till date. Respondent No. 1 as the
plaintiff has not obtained any leave to lodge the writ of summons till
date.
40. Chapter VIII Rule 15 of the Original Side Rules has
prescribed the method of entering appearance of a defendant in suit.
It has prescribed that, a defendant shall enter appearance to a writ
of summons. Chapter VIII Rule 16 has specified the consequences of
default of entering appearance of a defendant within the time
mentioned in the writ of summons for such appearance. Chapter VIII
Rule 17 has granted liberty to a defendant to enter appearance,
without leave, at any time before the suit has been set down in the
warning list of undefended suits. Rule 18 has dealt with notice of
entering appearance while Rule 19 has provided for appearance with
special leave.
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41. These Rules of Chapter VIII of Original Side Rules has one
common thread that is, the entering of appearance by the defendant
and that the same is to a writ of summons. Lodgement of the writ of
summons with the Sheriff and the service thereof on the defendant
in a suit, is a sine qua non for a valid appearance to be entered into
by a defendant in such suit.
42. In a given case, a defendant can waive the service of the writ
of summons on it by the plaintiff. However, lodgement of the writ of
summons which is a mandate under the Original Side Rules cannot
be waived by the defendant.
43. In the facts and circumstances of the present case, writ of
summons has not been lodged far less served upon the appellant as
the defendant. Question therefore of the defendant having entered
appearance, validly, in the suit does not arise.
44. Tarit Appliances (P) Ltd. (supra) has held that, Article 137
of the Limitation Act, 1963 applies to Chapter XXXVIII Rule 46 of the
Original Side Rules for the purpose of enlarging the time to file the
writ of summons.
45. A learned Single Judge of this Hon'ble Court in Bhairu
Ratan Pachisia & Ors. (supra) has considered Chapter VIII Rules 6
and 7 as well as Chapter XXXVIII Rule 46 thereof. It has held that,
on a conjoint reading of Rules 6 and 7 of Chapter VIII and Rule 46 of
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Chapter XXXVIII, the Sheriff is not to accept any writ of summons,
taken out or delivered to him after expiry of 14 days from the date of
filing of the plaint unless otherwise ordered by the Court. It has
noticed Tarit Appliances (P) Ltd. (supra) and held that, the power
of the Court to entertain an application for extension of time to take
out and deliver the writ of summons to the Sheriff is subject to
Article 137 of the Limitation Act, 1963 which is three years.
46. A Co-ordinate Bench in East Bengal Steam Services Ltd.
(supra) has considered provisions of the Original Side Rules and
Order IX Rule 2 of the Code of Civil Procedure, 1908. It has held
that, Order IX Rule 2 of the Code of Civil Procedure, 1908 applies to
a suit in the Original Side. It has also noted Chapter VIII and Rules 6
and 7 thereof of the Original Side Rules. In the facts of that case, the
Co-ordinate Bench has upheld the order of the learned Single Judge
dismissing the suit for the failure of the plaintiff therein to lodge the
writ of summons.
47. Respondent No. 1 has contended that, Order IX Rule 2 of the
Code of Civil Procedure, 1908 was amended with effect from July 1,
2002 and since the suit was of 2000, neither the amended provision
of Order IX Rule 2 nor Order VII Rule 9 would apply. We are unable
to accept such contention as parties do not have a vested right in the
procedure governing a suit. Procedural amendments to the Code of
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Civil Procedure, 1908 apply to pending cases unless demonstrated to
be unjust. Penal provisions akin to presently subsisting were
existing in the unamended Order IX Rule 2 of the Code of Civil
Procedure, 1908. The amendments introduced cannot be classified
as unjust.
48. Another Co-ordinate Bench in Hindusthan Motors Limited
(supra) has held that, a Court can dismiss the suit if no step is
taken by the plaintiff having the carriage of the proceeding. At the
same time, it has held that, a Court can condone the laches on the
part of the plaintiff in not taking steps. It has referred the questions
as to whether the defendant had acquired any valuable right due to
the delayed service of the writ of summons and whether the Court in
the given circumstances was entitled to condone such delay to a
Larger Bench.
49. A Division Bench of the Bombay High Court in Tardeo
Properties Pvt. Ltd. (supra) has construed the rules governing its
procedure. It has held that, when the records establish that the writ
of summons was never served, mere filing of the Vakalatnama would
not establish to the contrary.
50. The learned Single Judge in Bengal Chand Company
(supra) has held that an illegality in the service of process did not
give the Court jurisdiction over the defendant.
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51. Iridium India Telecom Ltd. (supra) has held that, where
there is a conflict between the provisions of the Code of Civil
Procedure, 1908 and the Rules framed by the High Court then, the
Rules framed under Clause 37 of the Letters Patent, 1865 will
prevail.
52. In view of the discussions above, it has to be held that, the
writ of summons of the suit was never served upon the defendant, as
the same was never lodged.
53. On the parity of the reasoning as that of Tardeo Properties
Pvt. Ltd. (supra), entering of appearance by filing a Vakalatnama by
the appellant is of no consequence and at least it does not waive the
requirement of the plaintiff to lodge the writ of summons.
54. In view of the discussion above, the third issue is answered
by holding that the writ of summons in CS 340 of 2000 was never
lodged by the plaintiffs being the respondent No. 1 herein.
55. A period in excess of three years has elapsed since the suit
was filed. Therefore, in view of Tarit Appliances (P) Ltd. (supra)
which was subsequently followed, the present suit could not have
been proceeded with on January 24, 2023 when the suit was
directed to appear in the Commercial Division or on the date of the
impugned order.
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56. In the circumstances of the present case the concerned suit
was liable to be dismissed and should have been so for not lodging
the writ of summons within the time specified for lodging the same.
Therefore, there could not have been a pending suit on January 24,
2023 when the suit was directed to appear in the Commercial
Division or on March 28, 2023 when the impugned order was passed
or on July 5, 2023 when the suit was directed to be placed in the
Commercial Division.
57. Out of the two essential jurisdictional facts for valid exercise
of powers under Section 15 of the Act of 2015, one was absent in the
facts of the present case. By reason thereof, exercise of powers under
Section 15 of the Act of 2015 was without jurisdiction, on January
24, 2023 or subsequently on July 5, 2023.
58. The fourth issue is consequently answered by holding that,
CS 340 of 2000 was not validly subsisting for it to be transferred to
the Commercial Division under Section 15 of the Act of 2015 by
reason of non-lodgement of the writ of summons within the time
specified.
(iv) Adjudication of a matter where a Court lacks jurisdiction
59. Garden Reach Shipbuilders and Engineers Limited
(supra) has considered the issue of allocation of business for a
learned Judge to decide. It has observed that, any order which a
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Bench-comprising of two Judges or a Single Judge-may choose to
make in a case that is not placed before them/him by the Chief
Justice of the High Court or in accordance with his Lordship's
directions, such an order is wholly without jurisdiction. It has also
held that, an adjudication, beyond allocation, is void and such
adjudication has to be considered a nullity.
60. Garden Reach Shipbuilders and Engineers Limited
(supra) has noticed an authority of the Calcutta High Court, namely,
All India Reporter 1990 Calcutta 168 ( Sohal Lal Baid vs. State
of West Bengal). There the Division Bench has held that, "the power
and jurisdiction to take cognizance of and to hear specified
categories or classes of cases and to adjudicate and exercise any
judicial power in respect of them is derived only from the
determination made by the Chief Justice in exercise of his
constitutional, statutory and inherent powers and from no other
source and no cases which is not covered by such determination can
be entertained, dealt with or decided by the Judges sitting singly or
on a Division Courts till such determination remains operative." It
has also held that, a judgment pronounced by a Court without
investment of jurisdiction is void.
61. In the facts and circumstances of the present case, on the
date of impugned order there was the order dated January 24, 2023
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directing transfer of the suit to the Commercial Division. Therefore,
on the date of the impugned order there was no suit before the
learned Single Judge in the non-commercial Division to pass the
impugned order.
62. The learned Single Judge concerned, on the date of the
impugned judgment and order was having determination/allocation
of business both for non-commercial as also commercial matters.
However, the instant suit and the application in which the impugned
judgment and order was passed had appeared in the list relating to
Non-Commercial Division. Assuming that the suit had stood validly
transferred to the Commercial Division by virtue of the order dated
January 24, 2023 then, the suit along with the applications had
appeared in a wrong list.
63. A Co-ordinate Bench has in Surajit Sen (supra) held that,
when, a suit pertains to a commercial dispute and has to be
regarded as a commercial suit whether or not the inter-locutory
Court was alive to the such fact, when the application for rejection of
the plaint was decided, the Court and parties remained bound by the
Act of 2015 to act in accordance therewith. It has also held that,
with the coming into effect of a Commercial Division under the Act of
2015, it was the duty of the Court or its Department to indicate
matters which pertained to commercial disputes. The fact that no
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such bifurcation of matters has been made would not imply that
upon the setting up of the Commercial Division, the Act of 2015
would not affect matters pertaining to commercial disputes.
64. Surajit Sen (supra) has held that, since Original Side Courts
with regular determination functions both as Commercial Courts
and as Original Side Courts dealing with other civil matters, there is
no requirement, in such a situation, for any application to be made
for transfer from one Court to the another as the same Judge or the
same Bench would be taking both commercial and non-commercial
Original Side matters, in the same Court room for the entire day. In
the facts of that case, the Co-ordinate Bench has held that, no
appeal can be entertained from an order rejecting an application
under Order VII Rule 11 of the Code of Civil Procedure, 1908 in view
of Section 15 of the Act of 2015.
65. In the facts and circumstances of this case, the learned
Judge had two lists bifurcating the Commercial and non-Commercial
matters. Notwithstanding such bifurcation of matters, the suit had
appeared in the wrong cause list.
66. Another Co-ordinate Bench in Sabri Properties Pvt. Ltd.
and Others (supra) has held that, an appeal under Clause 15 of the
Letters Patent, 1865 was abridged by Sections 15 and 21 of the Act
of 2015. In the facts of that case, the Court has held that the suit
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was a commercial cause and therefore an appeal was maintainable
only under Section 13 of the Act of 2015.
67. A Division Bench of the Madras High Court in Aarur
Tamilnadan (supra) has held that, Clause 15 of the Letters Patent,
1865 becomes redundant in suits governed by the Act of 2015.
68. Decision of a Court in the non-Commercial Division is
amenable to appeal under Clause 15 of the Letters Patent, 1865.
Appeal against a decision in a Court in the Commercial Division is
governed by Section 13 of the Act of 2015. In such a scenario
applicability of Clause 15 of the Letters Patent, 1865 is ousted.
69. Exercise of powers of transfer under Section 15 of the Act of
2015 is by a Court in the non-Commercial Division. Section 13 of the
Act of 2015 governs appeals from orders and decrees of the
Commercial Court or the Commercial Division as the case may be.
Section 13 of the Act of 2015 cannot be construed to mean that a
decision of the Court in the non-Commercial Division is also
governed thereby.
70. An order of transfer of a suit to the Commercial Division is
passed under Section 15 of the Act of 2015. However, the same is
passed by a Court other than a Commercial Division or a
Commercial Court, as the case may be. Therefore, the order of
transfer though passed under Section 15 of the Act of 2015 not
2026:CHC-OS:15-DB
being made by a Commercial Division or a Commercial Court as the
case may be, will not be visited by the rigours of Section 13 of the
Act of 2015. Such an order would be governed by Clause 15 of the
Letters Patent, 1865 if passed by the High Court.
71. The first order of transfer dated January 24, 2023 being a
nullity, there being no pending suit to be transferred, the suit was
never validly transferred to the Commercial Division. There being no
valid transfer, subsequent orders passed in the suit are amenable to
judicial scrutiny under Clause 15 of the Letters Patent, 1865.
Conclusion
72. In such context, the present appeal is maintainable. The
second issue is answered accordingly.
73. The fifth issue is answered by holding that, the suit did not
survive the expiry of a period three years from the date of its filing
being August 28, 2000. Therefore, on and from August 28, 2003,
there was no pending suit in the eye of law for it to be transferred to
Commercial Division. Department will treat CS 340 of 2000
presently numbered as IP (COM) 43 of 2024 and all interlocutory
applications pending therein to be dismissed.
2026:CHC-OS:15-DB
74. The impugned judgment and order is set aside. APO 126 of
2023 along with all connected applications are disposed of
accordingly, without any order as to costs.
[DEBANGSU BASAK, J.]
75. I agree.
[MD. SHABBAR RASHIDI, J.]
