Calcutta High Court
Dalgreen Agro Pvt. Ltd vs Shaikh Asadur Rahman & Ors on 19 November, 2024
IN THE HIGH COURT AT CALCUTTA
(ORIGINAL SIDE)
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
GA No. 8 of 2023
In
CS No. 58 of 2016
Dalgreen Agro Pvt. Ltd.
Versus
Shaikh Asadur Rahman & Ors.
Mr. Anirban Ray
Mr. Jayanta Sengupta
Mr. Pratik Shanu
Mr. Srinjoy Bhattacharya
... For the plaintiff.
Mr. Sarosij Dasgupta
Ms. Saheli Bose
... For the defendant nos. 1 to 3.
Mr. Reetobrata Mitra
Mr. Satyaki Mukherjee
Mr. Aditya Mondal
...For the defendant no. 6.
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Mr. Srijib Chakraborty
Mr. Sunny Nandy
...For the defendant no.7
Hearing Concluded On : 30.08.2024
Judgment on : 19.11.2024
Krishna Rao, J.:
1. The plaintiff has filed the present application praying for the following reliefs:
"(a) The Judgment and decree passed in the instant suit dated 15th May, 2023 be drawn up by the concerned Department of this Hon'ble Court as a decree passed in a Commercial Suit under the Commercial Division of this Hon'ble Court exercising the Ordinary Original Civil Jurisdiction within 4 weeks from the date of the order to be passed herein or as may be deemed fit and proper;
(b) In the alternative, an order allowing the petitioner to cause necessary amendments to the cause papers filed in the instant suit recording that the instant suit is a commercial suit tried by this Hon'ble Court in its Commercial Division and all consequential orders;
(c) Ad-interim order in terms of prayer above;
(d) To pass such other or further order or orders as this Hon'ble Court may deem fit and proper."
2. The plaintiff has filed a suit being the C.S. No. 58 of 2016 before this Court (Ordinary Original Civil Jurisdiction, Original Side) praying for the following reliefs:
"(a) A decree for a sum of US $ 428500 as pleaded in paragraph 46 to be expressed in Indian currency as on date of decree;3
(b) Interest and pendent lite at the rate of 18%;
(c) Interest upon judgment @18% per annum as pleaded in paragraph 47;
(d) Interest at the rate of 18% per annum from due dates of payment of the Letters of Credit referred to in paragraph 47 till date of Institution of suit;
(e) Alternately decree for Rs.4 Crores as damages as pleaded in paragraph 48;
(f) In the further alternative, an enquiry into damages and the decree for such sums that may be found due and payable upon such enquiry;
(g) Receiver;
(h) Attachment;
(i) Costs;
(j) Such other and further reliefs."
3. On 15th May, 2023, this Court passed a judgment directing the defendants to pay a sum of US $428500 along with interest at the rate of 18% per annum from 1st June, 2015 till realisation of the decretal amount.
4. After the judgment, when the department has proceeded for drawing up for decree in terms of the judgment dated 15th May, 2023, the department noticed that by an order dated 14th November, 2017, this Court directed that the matter be placed under the heading "Commercial Division" but no steps have been taken by the Advocates-
on-record of the plaintiff for making appropriate amendment in the cause title of the plaint in the front as well as in the back side of the plaint by adding the word "Commercial Division", due to which the 4 department could not able to draw decree in terms of the judgment dated 15th May, 2023.
5. On the receipt of report from the department (Master & Official Referee) of this Court, the matter was listed as "To be mentioned" and when the same was brought to the notice of the parties, the plaintiff has filed the present application.
6. Mr. Anirban Ray, Learned Advocate representing the plaintiff submits that by an order dated 14th November, 2017, this Court directed to place the matter under the list of "Commercial Division" and has not issued any new timeline or new direction for holding any case management hearing. He further submits that no directions, including directions to amend the plaint, or to file Statement of Truth, were given to comply with any procedure required to be complied with in case of institution of a fresh suit before the Commercial Division.
7. Mr. Ray submits that after the suit was transferred to the Commercial Division, the case has actually been tried as commercial suit following the procedure laid down in the Code of Civil Procedure, 1908 as amended by the Commercial Courts Act, 2015 and the appearing defendants had also not objected for the same.
8. Mr. Ray submits that the evidence of the parties to the suit were also recorded by following the procedure of the Commercial Courts Act, 2015 as both the parties have also filed their affidavit of evidence. He submits that this Court has also heard the arguments of the parties on 5 several dates under the Commercial Division and on 15th May, 2023 has passed judgment in the Commercial Division which is reflected in the cause title of the judgment.
9. Mr. Ray submits that the plaintiff has filed the present application only praying for a direction to allow the plaintiff to correct the cause title of the plaint by adding the word "Commercial Division" in the front sheet and back sheet of the plaint so as to enable the department to draw a decree in terms of the judgment passed by this Court dated 15th May, 2023.
10. Mr. Ray submits that the plaintiff is not praying for any amendment in any of the paragraphs of the plaint or any amendment in the pleadings. He submits that only because after the transfer of the suit, the cause title of the suit was not amended due to which the department is not in a position to draw up a decree since this Court has passed the decree in the Commercial Division.
11. Mr. Ray in support of his submissions relied upon the following judgments:
(i) Pratibha Singh and another v. Shanti Devi Prasad and another reported in AIR 2003 SC 643.
(ii) Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon reported in (1969) 1 SCC 869.
(iii) Jayalakshmi Coelho v. Oswald Joseph Coelho reported in AIR 2001 SC 1084.6
(iv) Delta International Limited v. Messrs Tor-Isteg Steel Corporation reported in 2002 SCC OnLine Cal 318.
(v) National Rubber Works v. Smt. Daisy Mantosh reported in AIR 2003 Calcutta 284.
(vi) Punjab State Electricity Board v. Kewal Singh reported in 2000 SCC OnLine P&H 1221.
12. Mr. Reetobrata Mitra, Learned Advocate representing defendant no.6 submitted that the plaintiff in its application admitted its mistake and thus the plaintiff cannot take advantage of its own mistake. He submitted that the plaintiff has prayed for amendment of the plaint after the judgment is passed on 15th May, 2023 by invoking the provisions of Sections 152 and 153 of the Code of Civil Procedure, 1908 but there is no mistake in the judgment either clerical or arithmetical.
13. Mr. Mitra submitted that the suit was transferred to the Commercial Division by an order dated 14th November, 2017 but the plaintiff instead of taking appropriate steps to amend the cause title and to file affidavit in terms of the Commercial Courts Act, 2015 was sitting tight over the matter and after judgment is delivered, the plaintiff has filed the present application which is not maintainable under law as after the judgement is passed, this Court has become functus officio. He submits that the Court having functus officio can no longer go beyond the decree and can no more exercise its power under Section 153 of the Code of Civil Procedure, 1908 read with Order 6, Rule 17 of the Code of Civil Procedure, 1908.
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14. Mr. Mitra submitted that the Power of the Court under Section 152 of the Code is limited to rectification of clerical and arithmetical errors arising from any accidental slip or omission but in the instant case there is no clerical or arithmetical error on the part of this Court or its ministerial department. He submits that the plaintiff has admitted that it is the mistake on the part of the plaintiff who has not taken appropriate steps for amendment in the plaint at the appropriate stage or even before the delivery of the judgment.
15. Mr. Mitra submitted that after the judgement is pronounced and signed any alteration or addition is not at all permissible except under Section 152 and Section 114 of the Code of Civil Procedure, 1908.
16. Mr. Mitra in support of his submissions relied upon the following judgments:
(i) Mehta Suraya and Etc v. United Investment Corporation reported in (2002) 2 Cal LT 272.
(ii) Dwaraka Das v. State of M.P. & Another reported in (1999) 3 SCC 500.
(iii) Century Textiles Industries Limited v. Deepak Jain & Another reported in (2009) 5 SCC 634.
(iv) Vinod Kumar Singh v. Banaras Hindu University & Ors. reported in (1988) 1 SCC 80.
(v) Binod Kumar Toppo v. State of West Bengal reported in (2011) 3 CHN 299.8
(vi) Dy. Director, Land Acquisition v. Malla Atchinaidu & Ors. reported in (2006) 12 SCC 87.
(vii) Rashmi Metaliks Limited v. Soneko Marketing (P) Limited, being the APO/53/2023.
17. Mr. Srijib Chakraborty, Learned Advocate representing defendant no.7 has adopted the submissions of Mr. Mitra and relied upon the same judgements.
18. The plaint was presented before this Court on 17th February, 2016 and the same was admitted subject to scrutiny by the department and leave under Clause 12 of the Letters Patent and under Order 2, Rule 2 of CPC which was also granted to the plaintiff.
19. Though the Commercial Courts Act, 2015 was notified on 1st January, 2016 but no Commercial Court was established in this Court till the month August, 2017 and thus the suit was preceded before Ordinary Original Civil Jurisdiction.
20. After establishment of Commercial Court, by an order dated 14th November, 2017, upon the submissions made by the Counsel for the parties, this Court directed to place the suit under the heading "Commercial Division". Subsequent to the order dated 14th November, 2017, the suit was listed before the Commercial Division. It is found from several daily orders, sometime the matter was listed as non- commercial matter or sometimes it was listed as a commercial matter. 9 The evidence of the parties in the suit conducted as per the provisions of the Commercial Courts Act, 2015 as both the parties have filed their affidavit of evidence. None of the parties have raised any objection with regard to conducting evidence and exhibiting documents during the evidence of the parties. The parties have argued the matter before the Commercial Court and this Court has passed judgment in the Commercial Division. After delivery of the judgment dated 15th May, 2023, when the department of this Court proceeded for drawing up of a decree, the department noticed that by an order dated 14th November, 2017, this Court transferred the suit before the Commercial Division and this Court has passed judgment in the Commercial Division but after transfer of the case to the Commercial Division, the cause tile of the plaintiff in front as well as in the back, amendment was not carried out by incorporating the words "Commercial Division" due to which, the department could not able to draw up of a decree in terms of the judgment dated 15th May, 2023.
21. The plaintiff in the present application has prayed for an order directing the department for drawing up a decree in a Commercial Suit under the Commercial Division of this Court exercising the Ordinary Original Civil Jurisdiction within a period of 4 weeks from the date of the order or in the alternative to allow the plaintiff to cause necessary amendments to the cause papers filed in the instant suit recording that the instant suit as a Commercial Suit tried by this Court in its Commercial Division.
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22. This Court by an order dated 14th November, 2017 has transferred the suit to Commercial Division under Section 15 of the Commercial Courts Act, 2015 which reads as follows:
"15. Transfer of pending cases.--(1) 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 a High Court where a Commercial Division has been constituted, shall be transferred to the Commercial Division.
(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).
(3) Where any suit or application, including an application under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of Specified Value shall stand transferred to the Commercial Division or Commercial Court under sub-section (1) or sub-section (2), the provisions of this Act shall apply to those procedures that were not complete at the time of transfer.
(4) The Commercial Division or Commercial Court, as the case may be, may hold case management hearings in respect of such transferred suit or application in order to prescribe new timelines or issue such further directions as may be necessary for a speedy and efficacious disposal of such suit or application in accordance [with Order XV-A] of the Code of Civil Procedure, 1908 (5 of 1908):11
Provided that the proviso to sub-rule (1) of Rule 1 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to such transferred suit or application and the court may, in its discretion, prescribe a new time period within which the written statement shall be filed.
(5) In the event that such suit or application is not transferred in the manner specified in sub-
section (1), sub-section (2) or sub-section (3), the Commercial Appellate Division of the High Court may, on the application of any of the parties to the suit, withdraw such suit or application from the court before which it is pending and transfer the same for trial or disposal to the Commercial Division or Commercial Court, as the case may be, having territorial jurisdiction over such suit, and such order of transfer shall be final and binding." In the case of Nirman Consultants Pvt. Ltd. Vs. NNE Ltd. reported in 2019 SCC Online Del 11088, the Hon'ble Division Bench of Delhi High Court held that:
"In our view, Section 15 clearly and explicitly mandates that all pending suits and applications including the application under the Arbitration and Conciliation Act relating to a commercial dispute of a specified value shall be transferred to a Commercial Division. Use of the word "shall" leaves no room for any doubt that in such a case the provisions of the Commercial Courts Act will apply to procedures that were not complete at the time of transfer. It is not as if the legislature was unmindful of the fact that there would be some implications on the existing matters before sub- section 3 of Section 15 was enacted. It was clarified that the provisions of the act in those matters shall apply to those procedure that were not complete at the time of transfer."
The unreported judgment of the Hon'ble Division Bench of this Court in the case of Rashmi Metaliks Limited Vs. Soneko 12 Marketing (P) Limited in APO No. 53 of 2023 with C.S. No. 25 of 2014 dated 4th July, 2024, held that:
"The facts emerging from the pleadings and the record of the Court is that the Co-ordinate Bench presided over by one of us (Soumen Sen, J.) by an order dated 25th February, 2019 directed that suit to be re-numbered as a commercial suit and the appellant/defendant was directed to file written statement within three weeks from that date. On and from 25th February, 2019, the suit can only be heard by the learned Single Judge having the determination that is to say to try the suit as a commercial suit. A separate list of commercial suit is required to be published and the suit is required to be heard following the procedure under the Commercial Courts Act, 2015. Once a suit is directed to be heard as a commercial suit, the procedure prescribed under the Commercial Courts Act, 2015 is required to be followed. It involves filing of a statement of truth, discovery and inspection within the stipulated time and in the manner as prescribed under the relevant rules."
In the present case none of the parties have raised any objection with regard to transfer of the case to the Commercial Division and none of the parties even at the time of argument of the suit has raised any objection that no procedure is followed after the transfer of the suit to the Commercial Division.
23. Now the only question whether this Court has power to allow the plaintiff to make necessary amendment in the cause title of the suit in front as well as in back page by incorporating the words "Commercial Division".
24. The plaintiff has not prayed for any amendment or correction in the judgment dated 15th May, 2023. Only because after the transfer, 13 amendment was not carried out in the plaint by incorporating the words "Commercial Division" in the cause title, it is not possible for the department to draw up a decree in terms of the judgment dated 15th May, 2023.
25. In the case of Delta International Limited Vs. Messrs Tor-Isteg Steel Corporation reported in 2002 SCC OnLine Cal 318, the Coordinate Bench of this Court held that:
"9. Therefore, the situation is unique. In such unique situation inherent power of the Court will govern the filed. Even in addition to power of the Court under sections 152 and 153 in the miscellaneous provisions of the Code of Civil Procedure. There, I find that clerical or arithmetical mistakes in judgment, degrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on application of any of the parties. Similarly, in respect of general power of amendment I find that the Court may at any time and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. If both the provisions are analogously real purport, will come out. Even the judgment, decrees or orders are there but the Court can not be debarred from making amendment for such purpose at any point of time. The popular concept is that a justice is not only be done but also seem to be done and if I accept such concept with the guidance of law, I cannot debur myself from granting appropriate order/s in this respect.
10. Thus, there should be an order that the plan which has already been exhibited in the suit be treated as part and parcel of the plaint and the department is entitled to proceed on the basis of such exhibit to draw up and complete the decree 14 passed by this Court on 31st July, 1996. The amendment by way of insertion of plan in the plaint and drawing up will be made as expeditiously as possible but not beyond the period of 6 weeks from the date of passing the order."
26. This Court finds that the plaintiff has not prayed for any amendment or correction in the judgment dated 15th May, 2023. The plaintiff has filed the present application so as to enable the plaintiff to amend the cause title of the plaint in the front and back page by incorporating the two words "Commercial Division" after the words "Original Side". By an order dated 14th November, 2017, this Court already transferred the suit to Commercial Division, none of the parties have raised any objection. The plaintiff has not carried out the amendment in the cause title of the plaintiff by incorporating the words "Commercial Division". By incorporating the words "Commercial Division" will not change the nature and character of the suit as this Court by taking into consideration that the dispute between the parties are commercial in nature, accordingly, the suit was transferred to the Commercial Division. If this Court allows the plaintiff to carry out the amendment in the plaint by incorporating the words "Commercial Division, none of the parties would be prejudiced. If the said amendment is not allowed, the plaintiff will suffer irreparable loss and injury and the plaintiff will not be in a position to get the benefit of the judgment dated 15th May, 2023. If the defendants are aggrieved with the judgment and decree, the defendants have their remedy to challenge the same. 15
27. In view of the above, this Court allows the plaintiff to take appropriate steps for amendment in the plaint only to the effect to incorporate the two words "Commercial Division" in the cause title of the front and back page of the plaint after the words "Original Side" within two weeks from date. After the amendment is carried out, the department is directed to draw up decree within two weeks thereafter. It is found from the judgment dated 15th May, 2023 at page 31 of the second paragraph of conclusion portion inadvertently it was record "within 60 days from date", the same may be deleted.
28. G.A. No. 8 of 2023 is disposed of.
(Krishna Rao, J.)