Calcutta High Court
Surendra Kumar Banthia (Huf) & Ors vs Usha Agarwal on 13 February, 2020
Equivalent citations: AIRONLINE 2020 CAL 73
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
G.A. No. 2235 of 2019
With
C.S. No. 117 of 2019
SURENDRA KUMAR BANTHIA (HUF) & ORS.
Versus
USHA AGARWAL
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 13th February, 2020.
Appearance:
Mr. S. Dutt, Adv.
Mr. A. Chowdhury, Adv.
Mr. A. Mondal, Adv.
...for the plaintiff Mr. Rudrajit Sarkar, Adv.
Mr. Satadeep Bhattacharya, Adv.
Mr. Aasish Chowdhury, Adv.
Mrs. Aindrila Basu, Adv.
...for the defendant/petitioner The Court : G.A. No. 2235 of 2019, new G.A. No. 2 of 2019 is an application at the behest of the defendant under Order VII Rule 11 of the Code of Civil Procedure, 1908.
Learned Advocate appearing for the defendant submits that, the suit being filed in the commercial division, the plaintiff did not undertake a pre-institution mediation as mandated under Section 12A of the Commercial Courts Act, 2015. The plaintiff did not seek any urgent relief in the suit. Therefore, in absence of leave being obtained under Section 12A of the Act of 2015, the suit is not maintainable in the Commercial Division.2
Learned Advocate appearing for the plaintiff submits that, the subject- matter of the suit is not a commercial dispute within the meaning of the Act of 2015. He submits that, they lent and advanced money to the defendant and that, the plaintiff is seeking to recover the same along with interest. Therefore, the Court may be pleased to treat the instant suit as one not to be under the Commercial Division. Consequently, leave under Section 12A of the Act of 2015 need not be obtained.
Learned Advocate appearing for the defendant point out the averment made by the plaintiff in paragraph 19 of the plaint.
In paragraph 19 of the plaint, the plaintiff claims that the subject-matter of the present suit is a commercial dispute within the meaning of the Act of 2015.
The plaintiff at the hearing of the present application, however, contends that, the transaction is simpliciter of money lent and advanced. Therefore, the subject-matter of the suit need not be considered as one of a commercial dispute within the meaning of the Act of 2015.
Section 2(1)(c) of the Act of 2015 defines a commercial dispute. Section 2(1)(c)(i) is relevant for the purpose of instant suit. It is as follows:-
"2(1)(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."
Under Section 2(1)(c)(i) of the Act of 2015, ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile 3 documents, including enforcement and interpretation of such documents will constitute a commercial dispute.
In the present case, a HUF along with its members lent and advanced money to the defendant who is a sole proprietor of a firm. The plaintiffs do not claim and cannot be said to be either merchants, bankers, financiers or traders. Therefore, in my view, the transaction involved in the suit cannot be said to be one embracing a commercial dispute within the meaning of the Act of 2015.
In such circumstances, the instant suit need not be treated as to be one in the Commercial Division.
In such circumstances, the objection under Section 12A of the Act of 2015 as raised by the defendant is of no consequence.
Old G.A. no. 2235 of 2019, new G.A. No. 2 of 2019 in C.S. No. 117 of 2019 is disposed of by treating the suit not to be in the Commercial Division as filed but as one in the regular business of the Court. The department will made necessary endorsements in the cause title of the pleadings of the suit and suit register.
(DEBANGSU BASAK, J.) TO