Tripura High Court
Sri Nikhil Debnath vs Sri Pranab Kumar Saha on 19 March, 2025
Page 1 of 14
HIGH COURT OF TRIPURA
AGARTALA
CRP No.59/2024
Sri Nikhil Debnath, son of Late Akhil Chandra Debnath, Permanent resident of:
Dhaleswar Road Number 14, Police Station-East Agartala, District-West
Tripura. Presently residing at: Bidurkarta Chowmuhani, presently residing at
top Floor of Gill Nation, beside Abhisekh Restaurant Bidurkarta Chowmuhani,
Agartala, P.S.-West Agartala, P.O.-Agartala, PIN-799001, District-West
Tripura.
......... Petitioner-Judgment Debtor(s).
VERSUS
Sri Pranab Kumar Saha, Son of Late Jagadish Chandra Saha, C/O. Maha Laxmi
Apartment, Agartala, Police Station-West Agartala, District-West Tripura.
.........Respondent-Decree Holder(s).
For Petitioner(s) : Mr. Kushal Deb, Advocate,
Mr. Dipankar Das, Advocate.
For Respondent(s) : Mr. Pranabashis Majumder, Advocate,
Mr. Dhrubajyoti Saha, Advocate.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Date of hearing and judgment: 19th March, 2025.
Whether fit for reporting : YES.
JUDGMENT & ORDER(ORAL)
Heard Mr. Kushal Deb, learned counsel appearing for the
petitioner-judgment debtor and Mr. Pranabashis Majumder, learned counsel
appearing for the respondent-decree holder.
2. Petition under Section 47 of the Code of Civil Procedure, 1908
(CPC, for short) by the judgment debtor in C.M. (J) No.45 of 2022 arising out
of Execution (M) No.01 of 2020 has been rejected by the impugned order dated
09.04.2024 by the Executing Court of learned Civil Judge (Sr. Division), Court
No.2, West Tripura, Agartala. Judgment debtor/petitioner herein had
questioned the jurisdiction of the learned trial Court in passing the judgment
and decree as the subject matter of the case fell under Commercial Courts Act,
2015. As such, the learned trial Court lacked jurisdiction on the principle of
coram non judice. Since the question of jurisdiction goes to the root of the
matter and if the judgment and decree is a nullity in the eye of law, it could be
raised at any stage including the stage of execution under Section 47 of the
CPC. In support of this plea, learned counsel for the petitioner had referred to
the case of Sarwan Kumar & another vrs. Madan Lal Aggarwal reported in
AIR 2003 SC 1475 and M/s. National Highway Authority of India vrs. M/s.
B. Seenaiah & Company (Projects) Ltd. [F.M.A. No.254 of 2012 of Calcutta
High Court].
3. The opposite party/decree holder filed a written objection thereto.
It took a plea that the learned Executing Court cannot go beyond the decree in
an application under Section 47 of the CPC. It was further pointed out by the
decree holder/respondent herein that the original judgment and decree was
passed ex parte on 21.11.2019 in M.S. No.12 of 2019. The MFA No.03 of
2022 instituted against it was also dismissed by order dated 30.09.2022 by this
Court as the connected condonation application was dismissed. The learned
trial Court upon consideration of the rival submission of the parties rejected the
prayer in the following manner:-
"Perused the application field by the Jd/Petitioner U/s. 47 of CPC as
well as the W/O filed by the OP/DH.
The Jd/Petitioner submitted that the decree passed in the main suit
cannot be executed as the suit should have been tried by Commercial Court
and not by an Ordinary Civil Court, being barred by the Commercial Courts
Act, 2015.
The principle of Section 47 of CPC is that all the questions arising
between the parties relating to execution, discharge and satisfaction of a
decree in a suit shall be determined in the execution proceeding.
An Executing Court cannot go behind the decree already passed and
cannot entertain the question of jurisdiction of the Trial Court, where the Trial
Court has already passed judgment after considering all aspects in terms of
jurisdiction. Here, in the main suit the Jd/Petitioner did not appear before the
Court even after receiving the summons and the suit proceeded ex-parte
against him and judgment and decree was also passed ex-parte. He did not
raise any point therein by contesting the suit.
The Executing Court does not have jurisdiction to entertain an
objection as to the validity of the decree even on the ground of absence of
jurisdiction [V.D. Modi Vs R.A. Rehman AIR 1970 SC 1475]. Once the
decree has become final, the Executing Court cannot go behind the decree
except the matter relating to execution, discharge, and satisfaction of a decree.
No fresh plea can be taken by a J/d in the execution proceeding, wherein he
remained absent in the main proceeding inspite of receiving the summons.
Hence, considering the ambit of Sec.47 of CPC and the submissions
of both sides, I am not satisfied with the application filed by the Jd/Petitioner
U/s.47 of CPC and I am of the opinion that the said application is not
maintainable and is hereby rejected.
Hence, the instant application is disposed of on contest.
Make necessary entry in the relevant register as well as in the CIS."
4. I have heard learned counsel for the parties and taken note of the
materials placed from record. On behalf of the petitioner, it has been urged that
the agreement which gave rise to the connected litigation arose out of a
commercial contract and thus the suit came under the purview of the
Commercial Courts Act, 2015. It is further urged that since the agreement
executed on 04.05.2015 came under the purview of Commercial Courts Act,
2015 which was brought into effect from 23.10.2015, the judgment and decree
dated 21.11.2019 and 22.11.2019 respectively passed by the learned Civil
Judge (Sr. Division), Court No.2, West Tripura, Agartala was hit by the
principles of coram non judice and hence, non-executable.
5. In order to substantiate the plea, learned counsel for the petitioner
has made specific reference to the definition of commercial dispute under
Section 2(c) of the Act of 2015, in particular Section 2(c)(vi) and 2(c)(vii).
According to him, since the agreement involved a construction contract for a
multi-storied building with parking and commercial spaces, intended for sale to
third parties, it inherently related to trade and commerce and fell within the
definition of a "commercial dispute". The agreement was not for personal or
self use. He has also referred to the explanation to Section 2(c) which clarifies
that a dispute remains "commercial" even if it involves recovery of immovable
property or monetary claims (for example, unpaid dues) or if it involves public
functions (for example, agreements involving the State or private entities
engaged in public functions).
6. According to the petitioner, if the dispute exceeds the specified
value of Rs.3,00,000/- in terms of Section 12 of the Act of 2015, the suit would
only be entertained by the Commercial Court. In the instant case, the claim was
for Rs.30,00,000/-. The respondent's attempt to characterize the agreement as
non-commercial is misconceived since it specifically provided for construction
of G+4 building, commercial arrangement for sharing of constructed flat and
monetary consideration of Rs.50,00,000/- as compensation. The unregistered
nature of the agreement in such a case is irrelevant to the classification of a
commercial dispute under Section 2(c)(vi) of the Act. The current use of land is
not determinative. The nature of the contract itself brings it within the ambit of
"construction and infrastructure contracts". The agreement dated 04.05.2015
being a construction contract for the development of a G+4 apartment building,
therefore, clearly fell within the definition of a "commercial dispute" under
Section 2(c)(vi) of the Commercial Courts Act, 2015. He has also repudiated
the contention of the respondent that the Act is inapplicable due to the
agreement's pre-enactment execution date as Section 15 clearly provides that
all suits and applications relating to commercial disputes above the specified
value shall be transferred to the jurisdictional commercial court, irrespective of
when the cause of action arose.
7. It is further submitted that if the trial Court lacks jurisdiction
under the Commercial Courts Act, 2015, it strikes at the root of the decree's
validity and as such, the decree is non-executable. In that regard, he has
referred to the case of Kiran Singh Vrs. Chaman Paswan reported in AIR
1954 SC 340. According to the petitioner, the Executing Courts can scrutinize
jurisdictional issues since a decree passed without jurisdiction is like a lifeless
body that cannot be enforced. In this regard, he has referred to the decision in
case of Ramesh Chandra Sankla vrs. Vikram Cement reported in (2008) 14
SCC 58. Therefore, allowing the execution of a void decree would lead to a
miscarriage of justice.
8. It is further submitted that jurisdictional defects are not subject to
limitations and can be challenged at any stage including during execution.
Learned counsel for the petitioner has also questioned the observations of the
learned Executing Court relying upon the decision in V.D. Modi vrs. R.A.
Rehman reported in (1970) 1 SCC 670. He submits that the said decision has
introduced a nuanced perspective on challenging jurisdictional defects during
execution proceedings which creates a tension between two lines of authority
which must be resolved contextually, such as the earlier judgment in Kiran
Singh (supra).
9. It is submitted that questions relating to territorial or pecuniary
jurisdiction may be raised at the earliest stage of the suit which, if not raised,
cannot be challenged later under Section 47 of the CPC during execution,
unless the jurisdictional defect is so glaring that it constitutes an "error apparent
on the face of the record". However, the issue of subject matter jurisdiction is
not one which cannot be raised in later stages of the proceedings. As such, the
impugned decree cannot be executed.
10. On behalf of the respondent, it is urged that the impugned order
may not be set aside and this Court may hold that the judgment and decree
dated 21.11.2019 and 22.11.2019 respectively passed by the learned Civil
Judge (Sr. Division), Court No.2, West Tripura, Agartala is executable not hit
by the principles of coram non judice.
11. On the part of the respondent, it has been contended that the
definition of commercial dispute under Section 2(1)(c) of the Act of 2015 must
depend upon a strict construction of the provision of Commercial Courts Act,
otherwise it would defeat the very object and purpose of the said Act, i.e.
speedy disposal of high value commercial disputes.
12. In this regard, he has relied upon the decision of the Apex Court in
the case of Ambalal Sarabhai Enterprises Limited vrs. K.S. Infraspace LLP
& another reported in (2020) 15 SCC 585 where the provisions under Section
2(1)(c)(vii) of the Act were under consideration. It is submitted that the Apex
Court held that for a dispute to be a commercial dispute under Section
2(1)(c)(vii), the agreement between the parties must refer to immovable
property used or being used exclusively in trade or commerce. The word
"used" occurring in Section 2(1)(c)(vii) denotes "actually used" and it cannot
be either "ready for use" or "likely to be used" or "to be used". Merely because
the property is likely to be used in relation to trade and commerce, the same
cannot be a ground to attract jurisdiction of a Commercial Court. Such a wide
interpretation would defeat the object of the Commercial Courts Act with
regard to speedy disposal of commercial disputes thereunder.
13. It is further urged that merely because the plot of land, i.e. the
immovable property is likely to be used in relation to construction as
mentioned in Section 2(1)(c)(vi), i.e. "construction and infrastructure contracts
including tenders", the same cannot be a ground to attract the jurisdiction of
Commercial Court. In the instant case, neither the agreement between the
parties refers to the nature of the immovable property being exclusively used in
trade or commerce as on the date of agreement, i.e. 04.05.2015 nor the relief
prayed for by the plaintiff was in relation to the construction and infrastructure
contracts. The agreement provided for paying Rs.50 lakhs for compensation in
respect of the immovable property which would be put for development/
construction of flats or car parking or for commercial use in future. The said
compensation amount was just in respect of the use of owner's property for
such construction by demolishing the pre-existing old building which was kept
unused for prolonged years.
14. Compensation is the amount of money a party is entitled to
receive when the other party breaks the contract, when a penalty is specified or
when a loss or damage occurs. The compensation mentioned in the agreement
dated 04.05.2015 denotes General Damages which can be contemplated by the
parties to a contract at the time of entries into a contract. Therefore, the
impugned order dated 09.04.2024 passed by the learned Civil Judge (Sr.
Division), Court No.2, West Tripura, Agartala in connection with case No.
C.M.(J) 45 of 2022 arising out of Execution(M) No.01 of 2020 is proper. The
decree is not hit by the principles of coram non judice as the main suit, i.e.
M.S. 12 of 2019 was a simple money recovery suit in respect of breach of the
terms of contract for non payment of Rs.10 lakhs as compensation out of total
Rs.50 lakhs of compensation as clearly indicated in the agreement. There is no
dispute resolution clause or any jurisdiction clause in the agreement for the
parties to contest it as a suit of commercial nature. The petitioner has failed to
understand the actual position in law. Petitioner has sought to introduce the
agreement dated 04.05.2015 though the same was never indicated in the prayer
portion of the main money recovery suit, i.e. M.S. 12 of 2019. The judgment
debtor never contested the money suit in the Court below even after receipt of
summons. It reflects the mala fide intention of the petitioner/judgment debtor
just to harass the respondent-decree holder and defeat the fruits of decree by
one or the other means.
15. It is further submitted that the appeal bearing No.MFA 03 of 2022
preferred by the judgment debtor before this Court against the impugned
judgment and decree dated 21.11.2019 and 22.11.2019 respectively was
dismissed on 30.09.2022 on the ground that petitioner had not approached the
Court with clean hands. This creates doubt about the bona fide of the petitioner.
Therefore, learned counsel for the respondent submits that the instant revision
petition is not maintainable. The civil suit for recovery of money would not fall
within the category of cases covered within the scope and ambit of the
Commercial Courts Act, 2015. It may, therefore, be dismissed.
16. I have considered the submissions of learned counsel for the
parties and also taken note of the relevant materials placed from record.
17. The narration of facts recorded above, at the outset, indicates that
the money suit being M.S. 12 of 2019 was decided ex parte vide judgment and
decree dated 21.11.2019 and 22.11.2019 respectively. The first appeal MFA
No.03 of 2022 preferred by the aggrieved judgment debtor was also dismissed
by this Court vide order dated 30.09.2022 on the grounds of limitation. In the
present revision petition, the judgment debtor/plaintiff has failed to bring on
record the plaint which is a very vital document to examine the plea raised by
him at the stage of execution of the proceedings under Section 47 of the CPC.
However, the judgment and decree passed by the learned Civil Judge (Sr.
Division), Court No.2, West Tripura, Agartala dated 21.11.2019 and
22.11.2019 respectively in Money Suit No.12 of 2019 (Annexure-3) shows that
the suit was for declaration and for recovery/ realization of money amounting
to Rs.30,00,000/- only along with up to date interest from the defendant.
18. According to the plaintiff, as per the terms and conditions of the
agreement dated 04.05.2015 entered into with the defendant who is a promoter/
developer for construction of multi-storied residential complex on the land of
the plaintiff, the defendant was supposed to pay Rs.50 lakhs in total to the
plaintiff within a certain period and that period had expired in September,
2016. The defendant had paid Rs.40 lakhs to the plaintiff and the remaining
amount of Rs.10 lakhs had become outstanding. Plaintiff issued notice to the
defendant on 17.08.2017 which remained unresponded. The plaintiff instituted
the suit seeking recovery of Rs.10 lakhs and compensation of Rs.20 lakhs from
the defendant. The following issues were raised for determination by the
learned trial Court on the basis of the pleadings in the plaint since the
defendant did not appear and file any written statement:
(i) Whether, the suit is maintainable in its present form and
nature?
(ii) Whether, the plaintiff is entitled to recovery of money
amounting to Rs.30,00,000/- along with interest from the defendant?
(iii) To what other relief or reliefs the parties are entitled?
19. The plaintiff examined 3(three) witnesses and proved 9(nine)
number of documents. The learned trial Court answered the issue No.(i) in
favour of the plaintiff as the plaintiff had a valid cause of action which was
supported by evidence. As regards the issue No.(ii), the learned trial Court
upon perusal of the exhibits and the oral evidence held that as per the
agreement, Exbt. 1(a) to 1(d), it was agreed between the plaintiff and the
defendant that the defendant shall pay compensation of Rs.50 lakhs to the
plaintiff out of which Rs.5 lakhs had to be paid on the date of signing the
developer's agreement and the balance amount of Rs.45 lakhs had to be paid in
five equal installments of Rs.9 lakhs each in the interval of two months from
the third month from the date of undertaking the construction of the proposed
new building. Despite notices issued upon the defendant, he failed to pay the
remaining amount. As such, the learned trial Court held that the plaintiff is
entitled to realization of Rs.10 lakhs along with interest from the defendant.
However, it refused to allow compensation of Rs.20 lakhs as there were no
pleadings and supporting evidence to satisfy the Court as to how the said
amount of compensation has been ascertained. This issue was partly decided in
favour of the plaintiff. The third issue was accordingly answered in affirmative.
The plaintiff was held entitled to recovery of Rs.10 lakhs only from the
defendant along with interest @12% per annum from the date of the decree till
its realization. The suit was accordingly decreed ex parte.
20. What transpires on a bare perusal of the judgment of the learned
trial Court that the relief prayed for by the plaintiff was simple recovery of
money undertaken to be paid as compensation by the defendant under the
agreement dated 04.05.2015 whereby the defendant had agreed to pay
compensation of Rs.50 lakhs to the plaintiff for using his private land for the
purposes of construction of a multi-storied apartment. The claim of Rs.50 lakhs
agreed between the parties obviously did not involve any interpretation of
construction and infrastructure contracts or was contemplated as compensation
in lieu of construction of the multi-storied building on the part of the defendant.
The agreement may have contained several terms in relation to the construction
of the multi-storied apartment on the private land of the plaintiff but the term
relating to the payment of compensation of Rs.50 lakhs to the plaintiff was
apparently in lieu of use of the private land of the plaintiff. The learned trial
Court was not called upon to examine any other terms and conditions of the
development agreement which could have been interpreted in a manner as
being commercial dispute in relation to construction and infrastructure
contracts as sought to be projected on behalf of the judgment debtor at the
stage of execution proceedings. Moreover, since none of the other terms of the
agreement dated 04.05.2015 were required to be called upon for interpretation
as to whether the agreement relating to the immovable property of the plaintiff
was to be used exclusively in trade or commerce, there was no basis for the
learned trial Court to refuse to entertain the suit as a pure money suit over
which the learned Court of Civil Judge (Sr. Division) had ordinary jurisdiction
to decide. These issues were neither raised by the defendant nor required to be
decided by the learned trial Court. However, since at the stage of execution
proceedings such an issue has been raised under Section 47 of the CPC by the
judgment debtor and has been squarely rejected by the learned Executing
Court, this Court has endeavoured to examine it to test the plea of lack of
jurisdiction raised by the judgment debtor at the stage of execution of the
judgment and decree passed ex parte against him as it goes to the root of the
matter.
21. The Apex Court in the case of Ambalal Sarabhai Enterprises
Limited vs. KS Infraspace LLP and Anr. (supra) on the question of whether a
dispute falls in the category of commercial dispute in terms of Section
2(1)(c)(vii) of the Act categorically observed as under:
"37. A dispute relating to immovable property per se may not be a
commercial dispute. But it becomes a commercial dispute, if it falls
under sub-clause (vii) of Section 2(1)(c) of the Act viz. "the agreements
relating to immovable property used exclusively in trade or commerce".
The words "used exclusively in trade or commerce" are to be interpreted
purposefully. The word "used" denotes "actually used" and it cannot be
either "ready for use" or "likely to be used" or "to be used". It should be
"actually used". Such a wide interpretation would defeat the objects of
the Act and the fast tracking procedure discussed above."
22. The discussion made hereinabove would also show that the plea
raised by the petitioner is not one of patent lack of jurisdiction. It is not one
where the terms and conditions of the agreement required construction in the
light of the provisions of Commercial Courts Act to come to a finding that the
dispute or claim raised by the plaintiff fell under the category of commercial
disputes. The claim was pure and simple money claim on failure of the
defendant to pay compensation in lieu of use of the private land of the
petitioner though for the purposes of construction of a multi-storied building.
Since the other terms and conditions of the agreement are not at all required to
be gone into in view of the limited relief of compensation raised by the plaintiff
on the basis of the cause of action that had arisen in his favour on failure of the
defendant to pay the compensation within time, the endeavour of the judgment
debtor to raise such a plea by drawing the Court into construction of the other
terms and conditions of the agreement dated 04.05.2015 is not only wholly
unnecessary but untenable on facts also. The learned Executing Court,
therefore, rightly refused to entertain such a plea at the behest of the judgment
debtor under Section 47 of the CPC.
23. Section 47 of the CPC reads as under:
"47. Questions to be determined by the Court executing decree.-- (1) All
questions arising between the parties to the suit in which the decree was
passed, or their representatives, and relating to the execution, discharge or
satisfaction of the decree, shall be determined by the Court executing the
decree and not by a separate suit.
(2) ****
(3) Where a question arises as to whether any person is or is not the
representative of a party, such question shall, for the purposes of this section,
be determined by the Court.
[Explanation I.--For the purposes of this section, a plaintiff whose suit has
been dismissed and a defendant against whom a suit has been dismissed are
parties to the suit.
Explanation II.--(a) For the purposes of this section, a purchaser of property
at a sale in execution of a decree shall be deemed to be a party to the suit in
which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to
such purchaser or his representative shall be deemed to be questions relating
to the execution, discharge or satisfaction of the decree within the meaning of
this section.]"
It provides that all questions arising between the parties to the suit
in which the decree was passed, or their representatives, and relating to the
execution, discharge or satisfaction of the decree, shall be determined by the
Court executing the decree and not by a separate suit. The learned Executing
Court has apparently not committed any error in deciding the objection raised
by the judgment debtor on the question of jurisdiction of the learned trial
Court.
24. The Executing Court is obliged to execute the decree in a time
bound manner as has been held in the case of Rahul S Shah vrs. Jinendra
Kumar Gandhi & others reported in (2021) 6 SCC 418. If the Executing Court
fails to execute the decree within a period of six months, it has to record
reasons in writing.
The execution case is pending since the year 2022. There is an
obligation upon the judgment debtor to satisfy the decree which has attained
finality. The defendant/judgment debtor had not contested the suit despite
service of notice which led to passing of the ex parte judgment and decree
against him which was affirmed by the appellate Court. Though at the stage of
execution the judgment debtor sought to raise a novel plea that the learned trial
Court lacks jurisdiction and, therefore, the decree is inexecutable, in view of
the reasons recorded hereinabove, this Court is of the view that such a plea is
not sustainable in law or on facts.
25. Therefore, this Court does not find any reason to interfere in the
impugned order dated 09.04.2024 passed by the learned Civil Judge (Sr.
Division), Court No.2, West Tripura, Agartala in C.M. (J) No.45 of 2022
arising out of Execution (M) No.01 of 2020. The learned Executing Court
would endeavour to execute the decree without further delay.
26. The instant revision petition is dismissed.
Pending application(s), if any, also stands disposed of.
(APARESH KUMAR SINGH), CJ
Pulak
PULAK BANIK Digitally signed by PULAK BANIK
Date: 2025.04.03 13:01:47 +05'30'
