Calcutta High Court
Surajit Sen vs The Royal Bank Of Scotland Nv on 28 August, 2019
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
OD 3
GA 938 of 2019
With
APO 82 of 2019
CS 26 of 2005
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
SURAJIT SEN
Versus
THE ROYAL BANK OF SCOTLAND NV
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
The Hon'ble JUSTICE SUVRA GHOSH Date : 28th August, 2019.
APPEARANCE:
Mr. Utpal Bose,Sr. Adv.
Mr. Aryak Dutt,Adv.
Mr. Suman Dutt,Adv.
Ms. Shrayashee Das,Adv.
Ms. Aishwarya Chatterjee,Adv.
The Court :- The appeal arises out of an order dated November 20, 2018 by which the defendant's application for rejection of the plaint stood dismissed. 2
The plaintiff claimed a debt to be due from the defendant in respect of a banking transaction. A suit was instituted in a Court at Bruges, Belgium and a decree obtained. Since there is no reciprocal agreement between Belgium and India, a fresh suit was filed here based on the foreign judgment. At the time of the institution of the suit, the plaintiff carried on banking activities in India and was a scheduled bank under the Recovery of Debts Due to Banks and Financial Institutions Act,1993. In other words, claims pertaining to debts due to the plaintiff, within the meaning of the relevant expression in Section 2(g) of the Act of 1993, had to be carried to the appropriate Debts Recovery Tribunal and could not be instituted or even pursued in a civil Court.
The suit remained pending for several years and in course of such pendency the plaintiff bank ceased to carry on banking business in this country and, at any rate, its name was removed from the schedule of banks and financial institutions entitled to approach the Debts Recovery Tribunal under the Act of 1993 or under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. An application under Order VII Rule 11 of the Code for rejection of the plaint was filed by the defendant. By the time such application was taken up for consideration, the plaintiff was no longer a scheduled bank. The grievance of the defendant-appellant is that the matter had to be considered by the trial court with reference to the institution of the suit and, if at the time of the institution of the suit, the plaintiff was not entitled to carry the claim to a civil Court, the subsequent change of status of the plaintiff could not validate the action.3
Before, however, such grievance of the appellant can be addressed, it appears to the Court that the subject-matter of the suit is such as would make the claim a commercial dispute within the meaning of Section 2(c) of the Commercial Courts Act, 2015. The claim of the plaintiff arises out of an ordinary transaction of a banker, notwithstanding such claim having resulted in a foreign decree. Section 2(c) of the Act of 2015 defines "commercial dispute" and begins with the wide words "means a dispute arising out of -". Even though it is a foreign decree which is sought to be enforced by way of the present suit, the disputes between the parties to the suit arise out of ordinary transactions of bankers and, as such, the suit has to be regarded as a commercial suit to which the provisions of the said Act of 2015 would apply. The Act of 2015 does not permit an appeal to be carried from any order other than as provided under the Civil Procedure Code. By virtue of the non-obstante clause in Section 13(2) of the said Act, no appeal may be received under Clause 15 of the Letters Patent, which is otherwise applicable to this Court in exercise of its original jurisdiction.
The appellant refers to Section 15 of the Act of 2015 and submits that in the absence of an application for transfer of the suit to the commercial division, the suit could not have been regarded as one pertaining to commercial disputes. It is further contended on behalf of the appellant that, at any rate, the interlocutory Court while dealing with the application for rejection of the plaint did not treat the suit as a commercial suit or one covered by the Act of 2015.
Section 15 contemplates a commercial Court being physically different from a Court which decides other suits. In such a scenario, when a matter 4 pertaining to a commercial dispute is not transferred upon the Act of 2015 coming into effect to any commercial Court which may have been constituted thereunder, it would require a petition for transfer to be filed by any party to such suit. As it happens, in this Court, Original Side Courts with regular determination function both as commercial Courts and as Ordinary 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 another as the same Judge or the same Bench would be taking both commercial matters and non-commercial Original Side matters in the same court-room the entire day.
Indeed, upon the said Act of 2015 coming into effect and a commercial division or commercial appellate division being set up in this Court, it was the duty of the Court or its department to indicate matters which pertained to commercial disputes. The fact that no such bifurcation of matters has been done would not imply that upon the setting up of the commercial division, the Act of 2015 would not affect matters pertaining to commercial disputes.
Since it is indisputable that the present suit pertains to a commercial dispute and has to be regarded as a commercial suit, whether or not the interlocutory Court was alive to such aspect when the application for rejection of the plaint was decided, the Court and the parties remain bound by the Act of 2015 to act in accordance therewith. As a consequence, no appeal can be entertained from an order rejecting an application under Order VII Rule 11 of the Code as the Civil Procedure Code of 1908 does not provide for an appeal 5 therefrom. Since an appeal is a creature of a statute and there is no statute that the appellant can cite which authorises the present appeal, APO No. 82 of 2019 and GA No. 938 of 2019 are found to be incompetent and dismissed as not maintainable.
There will be no order as to costs.
(SANJIB BANERJEE, J.) (SUVRA GHOSH, J.) S.Chandra