Calcutta High Court
Piyush Bhartia vs Arun Kumar Kedia on 6 March, 2025
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
BEFORE:
THE HON'BLE JUSTICE PARTHA SARATHI SEN
IA NO. GA/1/2024
In
EC/33/2024
PIYUSH BHARTIA
Vs
ARUN KUMAR KEDIA
For the decree-holder : Mr. Aurin Chakraborty, Adv.
Mr. Jatan Monga, Adv.
For the judgment-debtor : Mr. Varun Kothari, Adv.
Mr. A. Agarwalla, Adv.
Ms. P. Garain, Adv.
Heard on : March 6, 2025
Judgment on : March 6, 2025
PARTHA SARATHI SEN, J.:
1. This is an application at the instance of the judgment debtor under Section 47 of the Code of Civil Procedure whereby and whereunder the judgment debtor has challenged the executability of the decree in its present form and has thus prayed for dismissal of the instant execution case.
2. In course of his argument Mr. Kothari, learned Counsel appearing on behalf of the judgment debtor, at the very outset, draws attention of 2 this Court to paragraph no. 2 of the plaint, a copy of which has been annexed with the affidavit-in-opposition of the decree holder at page no.8. It is submitted by Mr. Kothari that on conjoint perusal of the said plaint together with its annexures at page no.27 of the said opposition, it would reveal that a loan of Rs.50 Lakh was granted by the plaintiff to the defendant who is the proprietor of a firm.
3. It is further submitted by Mr. Kothari that from the averments of the plaint as filed before the learned trial Court and the documents in support of the plaint, it would reveal that the said loan was disbursed by the plaintiff to the defendant basically for a commercial purpose which is why an acknowledgment receipt was granted by the defendant in the letterhead of the said firm by putting his signature. It is further submitted by Mr. Kothari that from page no.27 of the said opposition being a copy of the annexure to the plaint it would reveal that the said document is in the nature of a mercantile document and from the said mercantile document it would reveal further that for repayment of the said loan the debtor was supposed to pay interest at the rate of 20% to the creditor in discharge of such loan and such rate of interest clearly indicates that by no stretch of imagination the said loan can be considered as an accommodation friendly known.
4. Mr. Kothari, at this juncture, draws attention of this Court to Section 2(1)(c) of the Commercial Courts Act, 2015 (hereinafter referred to as the said Act of 2015, in short). It is submitted by Mr. Kothari that on comparative study of the acknowledgment as has been annexed at 3 page no.27 with the averments made in the plaint as filed by the decree holder before the learned trial Court in the perspective of Section 2(1)(c)(i) of the said Act of 2015 it would reveal that the said acknowledgment dated 13.08.2018 is in the nature of a mercantile document and therefore the dispute with regard to non-payment of such money lent and advanced comes under the purview of 'commercial dispute' and thus the suit in which the decree is passed ought to have been filed before a Commercial Court which the learned trial Court has failed to visualize.
5. In his next limb of submission Mr. Kothari contends further that from the tabular statement as has been filed in the instant execution case, it would reveal that the decree holder has made an amendment with regard to the quantum of the decretal amount as sought to be executed in the instant execution case in view of the fact that decree holder has already received a sum of Rs.5 Lakh from the judgment debtor.
6. It is submitted by Mr. Kothari that since the decree holder has not come with clean hands before this Court, no relief may be granted to the decree holder for suppression of material fact which is sought to be cured by taking resort to the provisions relating to amendment of execution application.
7. It is further submitted by Mr. Kothari that since before the learned trial Court the decree was passed ex parte, the judgment debtor did 4 not get any opportunity to raise the point of jurisdiction though the point of maintainability of the said suit was taken in the written statement as filed before the learned trial Court. It is submitted further that in the event this Court finds that the decretal Court lacks jurisdiction to pass the decree, the executing Court must not be hesitant to pass an appropriate order under Section 47 of the Code of Civil Procedure with regard to the non-executability of the decree which is why the Legislatures in their own wisdom has incorporated Section 47 of the Code of Civil Procedure.
8. In course of his argument on behalf of the judgment debtor, reliance was placed upon the following decisions:-
i) Padma Logistics and Khanij Pvt. Ltd. Vs. Ideal Unique Realtors Pvt. Ltd. reported in 2022 SCC Online Cal 126:
(2022) 231 AIC 587: AIR 2022 (NOC 523) 257.
ii) Sunder Dass Vs. Ram Prakash reported in (1977) 2 SCC 662.
9. By placing reliance upon the aforementioned two reported decisions, it is submitted by Mr. Kothari that a Coordinate Bench of this Court in the reported decision of Padma Logistics (supra) distinguished a loan transaction which was a friendly and hand loan in connection with a commercial transaction in execution of a mercantile document. Placing reliance upon the reported decision of Sunder Dass (supra) Mr. Kothari submits that in the said decision the Hon'ble Apex Court had made it clear that point of lack of inherent jurisdiction resulting 5 invalidity of the decree can very well be set up in an execution proceeding.
10. It is thus submitted by Mr. Kothari that on the basis of the materials as have been placed before this Court and in view of the aforementioned two reported decisions cited from the side of the judgment debtor, a favourable order may be passed in terms of the prayer made in GA/1/2024.
11. Per contra, Mr. Chakraborty, learned Counsel appearing on behalf of the decree holder, at the very outset, draws attention of this Court to page no. 135 of the said opposition being a copy of the order dated 25.07.2022 as passed by a Coordinate Bench of this Court wherefrom it would reveal that during the pendency of CS/32/2021 the parties were directed to exchange their notes and submissions on the returnable date. It is submitted by Mr. Chakraborty in the written statement as filed by the present judgment debtor before the trial Court the point of jurisdiction was not taken and for not availing the said opportunity the judgment debtor may be debarred from raising the self-same point at the stage of execution of the decree. It is submitted by Mr. Chakraborty that from the averments made in the said plaint it would reveal that the said loan was given by the plaintiff to the defendant on account of their long acquaintance between each other and thus by no stretch of imagination it can be said that the said loan was given for any commercial purpose as wrongly argued by the learned Advocate for the judgment debtor.
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12. Mr. Chakraborty also placed reliance upon Section 2(c)(i) of the said Act of 2015. It is submitted by him that simply because the acknowledgment letter dated 13.08.2018 was issued by the defendant/judgment debtor in the letterhead of its proprietorship firm, the same does not make the said document mercantile in nature in order to come under the purview of commercial dispute as has been dealt with in paragraph 2(1)(c)(i) of the said Act. Mr. Chakraborty placed reliance upon the following two decisions, namely,
i) Ambalal Sarabhai Enterprises Limited Vs. K. S. Infraspace LLP and Another reported in (2020) 15 SCC 585.
ii) The judgment dated 13.08.2021 as passed in CS/99/2020 (Ladymoon Towers Private Limited Vs. Mahendra Investment Advisors Private Limited) passed by a Co-ordinate Bench of this Court.
13. It is submitted by Mr. Chakraborty that in the context of the aforementioned two reported decisions it would reveal that the letter of acknowledgment dated 13.08.2018 is a mere acknowledgement of the loan as has been given to the defendant by the plaintiff without having any reference for using the said loan for trade and commerce. It is thus submitted by Mr. Chakrabroty that it is a fit case for dismissal of the petition under Section 47 of the CPC as filed by the judgment debtor.
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14. This Court has meticulously has gone through the entire materials on record. This Court has given due consideration over the submissions of the learned Advocates for the contending parties.
15. On careful perusal of the averments as made in the plaint in CS/32/2021 together with its annexures more specifically the copy of the letter dated 13.08.2018 it appears to this Court that it was the plaint case that on account of long acquaintance between the plaintiff and the defendant the plaintiff extended a loan of Rs.50 Lakhs in favour of the defendant which the defendant acknowledged by issuing a letter dated 13.08.2018. Admittedly, such letter of acknowledgement was issued in the letterhead of the proprietorship firm of the defendant and the defendant/judgment debtor has put his signature on such letter of acknowledgment either as a proprietor or as a representative of the same proprietorship firm. On careful scrutiny of the said copy of the letter dated 13.08.2018 together with the averments made in the plaint, it nowhere appears to this Court that the said loan was given by the plaintiff to the defendant for any trade, commerce or business.
16. At this juncture, this Court considers that it would be proficient to look to the provisions of Section 2(1)(i)(c) of the said Act of 2015 which reads as under:-
"commercial dispute" means a dispute arising out of-8
i) Ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;
ii) ......................................................................
iii) ......................................................................
iv) ....................................................................
v) ....................................................................
vi) ....................................................................
vii) ....................................................................
viii) ....................................................................
ix) ....................................................................
x) ....................................................................
xi) ....................................................................
xii) ....................................................................
xiii) ....................................................................
xiv) ....................................................................
xv) .................................................................... xvi) .................................................................... xvii) .................................................................... xviii) .................................................................... xix) .................................................................... xx) .................................................................... xxi) .................................................................... xxii) .................................................................... xxiii) ...................................................................."
17. On perusal of the aforementioned legislative provision, it appears to this Court that in order to come within the ambit of Section 2(1)(c)(i) of the said Act of 2015 it must be shown that the transaction in question occurred between the merchants and the documents executed by them is in the nature of a mercantile document. On careful consideration of the copy of the letter dated 13.08.2018 it never transpires to this Court that the same can be considered as a mercantile document. This Court finds no force in the submission of Mr. Kothari that since the said letter was typed in the letterhead of a proprietorship firm the same became a mercantile document unless 9 from the wordings of the said letter it would reveal that the said loan was disbursed for the purpose of a mercantile transaction.
18. It is trite law that the point of lack of jurisdiction of the decretal Court can very well be raised at the stage of execution and for the aforesaid reason the Legislature thought it fit to incorporate the provision of Section 47 of the Code of Civil Procedure. However, there lies a restriction to that effect.
19. In the reported decision of Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman & Ors. reported in AIR 1970 SC 1475 : 1970 (1) SCC 670, the Hon'ble Apex Court expressed the following view:
"When the decree is made by a Court which is not inherent jurisdiction to make it, objection as to its validity may be raised in its execution proceedings only if the objection appears on the face of the record. But where the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the grounds of absence of jurisdiction."
20. It thus appears to this Court that while recognising the judgment debtor's right to challenge the validity of a decree under Section 47 of the Code of Civil Procedure regarding lack of inherent jurisdiction of the decretal Court, the Hon'ble Apex Court put a rider on such right that the objection with regard to the jurisdiction of the decretal Court must appear on the face of the record and/or requires to be raised and 10 decided at the trial or which could have been but have not been raised earlier.
21. Mr. Kothari in course of his argument was very vocal that the decree which is sought to be executed before this Court is ex parte in nature and therefore the defendant/judgment debtor got no opportunity to raise the point of lack of jurisdiction before the trial Court. The argument as advanced by Mr. Kothari, is not convincing in view of the fact that in the written statement the defendant though raised the question of maintainability of the suit, but the question of lack of jurisdiction of the trial court was not taken by the defendant.
22. Mr. Kothari made a futile attempt to convince this Court that the point of maintainability includes the point of jurisdiction, but on careful consideration of the pleadings as made in the written statement, this Court hardly finds any averment with regard to the lack of inherent jurisdiction as raised for the first time before this Court.
23. In view of the discussion made hereinabove, this Court thus finds no merit in the instant application.
24. Accordingly, the application being IA No.GA/1/2024 as filed under Section 47 of the Code of Civil Procedure is thus dismissed. 11
25. There shall, however, be no order as to costs.
26. Let the execution case being EC/33/2024 be listed under the heading 'For Hearing' on April 3, 2025 for further consideration.
(PARTHA SARATHI SEN, J.) mg/spal.