Sri Dulan Bhattacharya vs Sri Debabrata Paul @ Tinku
2024 Latest Caselaw 1727 Tri

Tripura High Court

Sri Dulan Bhattacharya vs Sri Debabrata Paul @ Tinku on 7 October, 2024

                    HIGH COURT OF TRIPURA
                          AGARTALA
                       RFA No.16 of 2023
Sri Dulan Bhattacharya.
                                                    -----Appellant(s)
                              Versus
Sri Debabrata Paul @ Tinku,
                                                  -----Respondent(s)

For Appellant(s)      :    Mr. S. Deb, Sr. Adv,
                           Mr. S. Datta, Adv.
For Respondent(s)     :    Mr. S. M. Chakraborty, Sr. Adv,
                           Mr. Suman Bhattacharjee, Adv.

          HON'BLE MR. JUSTICE BISWAJIT PALIT
                              Order
07/10/2024

Learned Senior Counsel, Mr. S. Deb assisted by

Learned Counsel, Mr. S. Datta is present for the appellant.

Learned Senior Counsel, Mr. S. M. Chakraborty assisted by

Learned Counsel, Mr. Suman Bhattacharjee is present for the

respondent.

02. Regarding maintainability of this appeal, we have

already heard Learned Counsels of both the sides at length on the

last date. In course of hearing, Learned Senior Counsel for the

appellant drawn the attention of this Court that the present

appellant filed one suit for realization of money which was valued

at Rs.8,31,507/- before the Court of Learned Civil Judge, Senior

Division, Dharmanagar, North Tripura and the Learned Court

below after completion of trial of the suit dismissed the suit and

challenging that judgment dated 30.07.2022 and decree dated

04.08.2022 delivered by Learned Civil Judge, Senior Division,

North Tripura, Dharmanagar in connection with case No.M.S.03 of

2017, the appellant has preferred this appeal under Section 96 of

CPC before the High Court on the ground of pecuniary jurisdiction.

Learned Senior Counsel further drawn the attention of

this Court that the appellant filed the suit before the Learned Trial

Court below on 17.04.2017 but in the meantime the parliament

enacted Commercial Courts Act, 2015 and referring Section 1 of

the said Act, Learned Senior Counsel further drawn the attention

of the Court that the said Act has come into force with effect from

23.10.2015. But for any reason that was not brought to the

knowledge of Learned Court below as the said suit falls under the

criteria of 'commercial dispute' and Learned Senior Counsel again

submitted that in view of the notification dated 07.04.2016 issued

by the Law Department, Government of Tripura and subsequent

notification dated 11.04.2016 issued by the High Court of Tripura

concurring the said notification of the State Government, since

there are designated Commercial Courts to deal with the

commercial disputes of the specified value as mentioned in

Section 2(i) of the Commercial Courts Act. So, this present matter

needs to be remanded back to the designated Commercial Court

for re-trial of this suit. Learned Senior Counsel further drawn the

attention of the Court referring the provision of Section 14(i) of

the Limitation Act and submitted that if the suit is remanded back

to the concerned designated Commercial Courts, in that case,

Section 14(i) of the Limitation Act would come into play to save

the period of limitation, otherwise, the appellant would be highly

prejudiced.

Learned Senior Counsel in support of his contention

also referred the provision of Section 15 of the Commercial Courts

Act and submitted that although the suit was filed by the appellant

before the Learned Trial Court on 17.04.2017 and the said

Commercial Act has came into operation with effect from

23.10.2015, so, in view of the said provision, the said suit ought

to have been transferred to the concerned designated Commercial

Courts but that provision was not taken into consideration by the

Learned Trial Court at the time of deciding the said suit. So, at

present also there would be no bar to remand back the suit to the

Learned Designated Commercial Courts for re-trial of the subject

matter in dispute.

Learned Senior Counsel for the appellant in support of

his contention further referred the provision of Section 9 of the

CPC and submitted that in view of the said provision of CPC, there

will be no bar to remand the matter to Designated Commercial

Courts at this stage. So, Learned Senior Counsel for the appellant

urged for remanding back the matter to the Designated

Commercial Courts after setting aside the judgment and decree

delivered by Learned Trial Court below.

03. On the contrary, Learned Senior Counsel, Mr. S. M.

Chakraborty assisted by Learned Counsel, Mr. Suman

Bhattacharjee appearing on behalf of the respondent countering

the submission made by Learned Senior Counsel for the appellant

drawn the attention of this Court that in the given case, initially no

such prayer was made before the Learned Court below by either

of the parties and this Court is presently exercising jurisdiction

under Section 96 of CPC and the powers of the appellate Court

has been vested in Section 107 of CPC and furthermore, before

the Learned Court also the appellant could have drawn the

attention of the Court referring the provision of Order VII, Rule 10

of CPC. Even there was also no such direction by the Learned Trial

Court. Furthermore, no such step was also taken by the appellant-

plaintiff under Section 21 of CPC before the Learned Trial Court.

So, at this belated stage when the judgment and decree have

been delivered by the Learned Court, there is no such scope on

the part of the First Appellate Court to entertain the submission

made by Learned Senior Counsel for the appellant for remanding

back the suit to the Designated Commercial Courts, as this Court

has got no legal jurisdiction to consider the same as a appellate

authority.

04. I have heard Learned Senior Counsels of both the

parties at length. For the sake of convenience, I would like to refer

the relevant provisions of law as referred by Learned Senior

Counsel at the time of hearing of arguments from the side of the

appellant:

(A) Section 1 of Commercial Courts Act:

1. Short title, extent and commencement.-(1) This Act may be called the Commercial Courts Act, 2015.

2. It extends to the whole of India.

3. It shall be deemed to have come into force on the 23rd day of October, 2015.

Section 2 (c) (i) of Commercial Courts Act:

2(c) "commercial dispute" means a dispute arising out of-

(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents.

Section 2(i) of the Commercial Courts Act:

2(i) "Specified Value", in relation to a commercial dispute, shall mean 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] rupees or such higher value, as may be notified by the Central Government."

Section 3 of the Commercial Courts Act:

3. Constitution of Commercial Courts.- The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Courts at District

level, as it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on those courts under this Act:

[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level:

Provided further that with respect to a territory over which the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary.]

(B) Section 15 (2) of Commercial Courts Act:

15. Transfer of pending cases.- (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).

(C) Section 14(1) of the Limitation Act:

14. Exclusion of time of proceeding bona fide in court without jurisdiction.-(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (D) Section 9 of CPC:

9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred.

Explanation I.- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II.- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.

Now again for the sake of convenience, I would like to

refer the relevant provision of law as referred by Learned Senior

Counsel at the time of hearing of arguments from the side of the

respondent:

Order VII, Rule 10 of CPC:

10. Return of plaint.- (1) Subject to the provisions of Rule 10-A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

[Explanation.- For the removal of doubts, it is hereby declared that a court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub- rule.] (2) Procedure on returning plaint.- On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

Section 21 of CPC:

(1) Objections to jurisdiction.- (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequence failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequence failure of justice.

Section 107 of CPC:

Powers of Appellate Court.-(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

05. Now, after hearing Learned Senior Counsels of both the

sides at length and also after going through the aforesaid

provisions of law referred by Learned Senior Counsels, it appears

that before the Learned Trial Court no such application was filed

by the present appellant to refer the matter to the Designated

Commercial Courts. Even, the Court suo moto also did not take

any step to refer the matter to the Designated Commercial Courts.

More so, the judgment before the Learned Trial Court by this time

was delivered and decree was prepared accordingly, dismissing

the suit of the appellant-plaintiff and challenging that judgment,

the appellant preferred this appeal before the High Court. Even in

the memo of appeal, no such assertions is made by the present

appellant for remanding back the matter to the Designated

Commercial Courts. This present appeal is preferred under Section

96 of CPC and the power of the appellate Court is mentioned in

Section 107 of CPC.

06. It is the settled position of law that in view of the

provision of Section 15 of the Commercial Courts Act all the

pending suits and applications relating to commercial disputes

shall be transferred to the Commercial Court. But here in the

given case, the suit was finally disposed of by delivering the

judgment and decree by the Learned Trial Court below.

07. In this regard, Hon'ble the Supreme Court of India in

Sirajudheen vs. Seenath and Others dated 27.02.2023

reported in (2023) SCC OnLine SC 196 wherein in para Nos.28

and 29, Hon'ble the Apex Court observed as under:

"28. With respect, what turns on the observations in the impugned judgment is that the High Court

was unable to arrive at a conclusion on the basis of the material on record. However, fact of the matter remains that on the basis of the same material on record, the Trial Court had indeed arrived at a definite conclusion that the plaintiff had failed to establish her case and hence, the suit was liable to be dismissed. As indicated hereinabove, the High Court has not at all referred to the findings of the Trial Court and it is difficult to find from the judgment impugned as to why at all those findings of the Trial Court were not to be sustained or the decree was required to be reversed.

29. After having taken note of the salient features of the impugned judgment as also the significant omissions therein, if we refer to the provisions empowering the Appellate Court to make an order of remand, it is difficult to find any justification for remand by the High Court in the present case. As noticed, the scope of remand in terms of Rule 23 of Order XLI CPC is extremely limited and that provision is inapplicable because the suit in question had not been disposed of on a preliminary point. The remand in the present case could only be correlated with Rule 23-A of Order XLI CPC and for its applicability, the necessary requirements are that "the decree is reversed in appeal and a re-trial is considered necessary". As noticed hereinabove, there is no reason whatsoever available in the impugned judgment as to why and on what basis the decree was reversed by the High Court. Obviously, the reversal has to be based on cogent reasons and for that matter, adverting to and dealing with the reasons that had prevailed with the Trial Court remains a sine qua non. Thus, remand in the present case cannot be held justified even in terms of Rule 23-A of Order XLI CPC."

From the principle of law laid down by the Hon'ble Apex

Court in the afore noted case and after hearing Learned Senior

Counsels of both the sides at length, being an appellate Court, at

this stage, I do not find any scope to remand back the matter to

the Designated Commercial Courts, as Section 107 of CPC does

not empower this Court to refer the matter to the Designated

Commercial Courts. Furthermore, Section 15 of Commercial

Courts Act, 2015 also does not authorize any Court to

refer/remand back the suit to any competent Court, if the

judgment and decree is pronounced by the Court where the suit

was pending.

Hence, the submission made by Learned Senior

Counsel for the appellant is not considered regarding

maintainability of this appeal and the same is accordingly, stands

rejected.

List the matter on 26.11.2024 for hearing.

                                                                                     JUDGE




MOUMITA             Digitally signed by
                    MOUMITA DATTA

DATTA               Date: 2024.10.08
                    16:56:19 +05'30'
Purnita