In the High Court at Calcutta

Civil Appellate Jurisdiction

Appellate Side

The Hon’ble Mr. Justice Sabyasachi Bhattacharyya

And

The Hon’ble Mr. Justice Supratim Bhattacharya

F.M.A. No. 854 of 2024

Ramen Roy

-Versus-

Sambriddhi Real Estate Private Limited and others

With

F.M.A. No. 859 of 2024

Ashis Sarkar alias Ashis Kumar Seal alias Ashis Seal

and others

-Versus-

Sambriddhi Real Estate Private Limited and others

For the appellants : Mr. Anindya Mitra, Ld. Sr. Adv.,

Mr. Soumya Roychowdhury,

Mr. Sharanya Chatterjee,

Mr. Satyam Mukherjee,

Mr. Awani Kumar Roy,

Mr. Surajit Biswas,

Ms. Ankita Roy,

Mr. Suhbhajit Barman,

Ms. Ojasvi Gupta,

Mr. Kaustav Misra,

Mr. Arijeet Bera, ... Advs.

For the respondents : Mr. Anirban Roy,

Mr. Debjit Basu, ... Advs.

Heard on : 22.06.2026

2

Reserved on : 22.06.2026

Judgment on : 30.06.2026

Sabyasachi Bhattacharyya, J.:-

1. The two appeals are taken up together for hearing, since the issues involved

are similar.

2. The appellants (owners) in both the appeals entered into registered

development agreements and powers of attorney, all dated February 10,

2016, with the respondents (developers) in respect of two properties, similar

in nature for both the properties. The registered development agreements

were numbered as 1039 and 1038, whereas the powers of attorney as 1072

and 1061 respectively.

3. Subsequently the appellants, alleging that the respondents were not

completing the development work within time, filed two suits for cancellation

of the said development agreements and powers of attorney . By the

impugned judgments, applications filed by the defendants/respondents

under Order VII Rule 10 of the Code of Civil Procedure (for short, “the Code”)

were allowed, thereby returning the plaints to be presented before the

concerned Commercial Court at Rajarhat, on the ground that the suits

involved “commercial disputes” within the contemplation of the Commercial

Courts Act, 2015 (hereinafter referred to as “the CC Act”) and, accordingly,

were not maintainable before the ordinary Civil Court.

3

4. Learned senior counsel appearing for the plaintiffs/appellants argues that

the development agreements are registered documents and, apart from

construction, also contemplate transfer of ownership rights and title in

respect of the subject-properties in praesenti in favour of the respondents.

As such, those are not agreements for construction and infrastructure

simpliciter; thus, Section 2(1)(c)(vi) of the CC Act is not applicable.

Accordingly, as per the appellants, the dispute involved in the suits is not a

“commercial dispute” within the contemplation of the CC Act.

5. In support of such contention, learned senior counsel takes the court

through various clauses of the agreement and cites Rameshwar and others

v. State of Haryana and others, reported at (2022) 17 SCC 1. In the said

judgment, the Hon’ble Supreme Court was pleased to distinguish between

pure construction contracts for carrying out the work of construction for

monetary consideration and agreements which contemplate transfer of a

complex of rights associated with ownership, which were construed to be

rights in rem.

6. Learned senior counsel next argues that the “specified value” as defined in

Section 2(1)(i), read with Section 12 of the CC Act, has to be read

harmoniously with the Court Fees Act and is linked with the reliefs sought

in the suit. Thus, it is contended that since the primary relief claimed in the

suits is cancellation of the respective agreements and powers of attorney,

the self-assessed valuation given in the plaint is to be the determinant of the

specified value.

4

7. In support of such submission, learned senior counsel relies on Mrs. Soni

Dave v. M/s. Trans Asian Industries Expositions Pvt. Ltd., reported at 2016

SCC OnLine Del 4282, and Hindustan Petroleum Corporation, represented by

Chairman and Managing Director and Another v. Muhammed Illiyas and

Others, reported at 2022 SCC OnLine Ker 4594 , where a learned Single

Judge of the Delhi High Court and a Division Bench of the Kerala High

Court respectively observed that Section 12 of the CC Act, providing for

determination of specified value, is not intended to provide for a new mode

of determining the valuation of the suit for the purpose of jurisdiction and

court fees and it would be incongruous to hold that while for the purpose of

payment of court fees, the deemed fiction provided in the Court Fees Act for

determining the value of the property is to apply, but not for determining the

specified value under the Commercial Courts Act.

8. It was further observed that the plaintiff, being the dominus litis, can choose

the court definitely having jurisdiction and determine the valuation of the

suit for the purpose of the reliefs prayed for.

9. It was held by the Delhi High Court that provisions such as Section 21 of

the CC Act have to be read and interpreted by finding out the extent to

which the Legislature intended to give it an overriding effect and the context

in which such a provision is made and on a consideration of purpose and

policy underlying the enactment. It was also held to be relevant to consider

whether the conflicting enactment can be described as a special one , in

which case the special one may prevail over the more general one,

notwithstanding that the general one is later in time.

5

10. Thus, it is argued that the suit, as framed, does not come within the

purview of the CC Act at all.

11. Learned senior counsel further argues that if the plaint is to be returned to

be presented afresh, the reliefs might be barred by limitation due to no fault

of the plaintiffs/appellants, since the application under Order VII Rule 10 of

the Code was filed by the defendants/respondents after more than three

years had elapsed from the filing of the suit. It is argued alternatively that

in the event this Court holds in favour of the suit being of a commercial

nature, the same may be transferred to the appropriate commercial court

instead of the plaint being returned and refilled.

12. Learned senior counsel appearing for the plaintiffs/appellants next contends

that in the event the plaint is presented as it is or afresh after being

returned, the rigours of Section 12A of the CC Act would apply. In similar

circumstances, it is argued, a Division Bench of this Court , in Awam

Marketing LLP v. M/s Orient Beverages Limited and Ors. [APO/144/2023

with CS/85/2016], transferred the suit to the commercial court. In Patil

Automation Private Limited and others v. Rakheja Engineers Private Limited,

reported at (2022) 10 SCC 1, the Hon’ble Supreme Court had observed that

if the suit was filed prior to the date of the said judgment, that is, August

20, 2022, the plaint would not be rejected for non-compliance of Section

12A of the CC Act, which was held to be mandatory in the said judgment.

(In the present case, the suits were filed in the year 2020).

13. The same view was reiterated in Dhanbad Fuels Private Limited v. Union of

India and another, reported at (2025) 9 SCC 424, where the Hon’ble

6

Supreme Court held that in cases which were pending before the said cut-off

date, in the event Section 12A of the CC Act is not complied with, the court

shall keep the suit in abeyance and refer the parties to time -bound

mediation in accordance with the said Section if an objection is raised by the

defendant by filing an application under Order VII Rule 11 of the Code.

14. Learned senior counsel relies on an unreported judgment of the Hon’ble

Supreme Court in Aase Ram v. Amit Kumar [Civil Appeal No. 9481/2025] ,

where the Hon’ble Supreme Court, in a case where the suit was filed before

an ordinary Civil Court but was commercial in nature, directed the plaint to

be returned instead of rejecting it under Order VII Rule 11 of the Code.

15. Thus, it is argued that in no event can the plaint be rejected; the best course

would be to transfer the suit to the commercial court having jurisdiction, as

done by the co-ordinate Bench in Awam Marketing LLP (supra)

1

.

16. Learned counsel appearing for the respondents, on the other hand, submits

that the delay in filing the application under Order VII Rule 10 of the Code

was not attributable to the defendants/respondents but to the

plaintiffs/appellants themselves. The suit was filed as long back as in the

year 2020, but the same was kept defective till January 20, 2022 due to

non-payment of appropriate court fees. Despite repeated opportunities

being given by the trial Court, the plaintiffs/appellants failed to comply with

the trial Court’s directions to put in the deficit court fees and the matter

reached such a fix that the suit was on the verge of being dismissed due to

1

Awam Marketing LLP v. M/s Orient Beverages Limited and Ors. [APO/144/2023 with

CS/85/2016]

7

non-compliance of the Court’s order. Only at this juncture, an application

for amendment of the plaint was filed on January 20, 2022 to cure the

defect, which was subsequently allowed and the amended plaint filed on

February 23, 2022. It is contended by the respondents that during this

entire period, summons of the suit was not served on the

defendants/respondents but only near the end of the year 2022 did the

defendants receive such summons. The application for return of plaint was

filed thereafter on May 11, 2023. Hence, the argument of the appellants

that the defendants/respondents were responsible for the delay ought not to

be accepted.

17. Learned counsel for the respondents cites a Division Bench judgment of this

Court passed in Ashok Saraf and others v. Asansol Durgapur Development

Authority, reported at 2025 SCC OnLine Cal 8829. In the said judgment, it

is argued, the Court had considered Rameshwar (supra)

2

and had observed

that the same was rendered in the context of land acquisition proceedings

and the ratio therein was not applicable to the context of the CC Act. In the

said judgment, it is argued, the Court observed that if an agreement was for

construction and infrastructure and there were other components to the

agreements as well, it would come within the ambit of Section 2(1)(c)(vi) of

the CC Act.

18. The judgments of the Kerala High Court and the Delhi High Court cited by

the appellants, it is contended, did not take into account Section 21 of the

2

Rameshwar and others v. State of Haryana and others , reported at (2022) 17 SCC 1

8

CC Act, which lends overriding effect to the CC Act over all other statutes,

including the Court Fees Act.

19. Learned counsel appearing for the respondents next argues that on a

composite reading of Section 12(1)(c) and Section 2(1)(c)(vi) of the CC Act, it

would be evident that the ‘specified value’ has to be determined in the

context of the CC Act and not as per the Court Fees Act. as per the said

provisions, if the reliefs sought in the suit arise out of an agreement for

construction and infrastructure, including tender, and relates to immovable

properties or rights therein, in whatever form, the market value of the

property determines the specified value. Thus, the argument that a

harmonious construction has to be arrived at between the Court Fees Act

and the CC Act is not tenable in the eye of law.

20. Learned counsel relies on a Division Bench judgment of the Telangana High

Court in Bhojraj Srinivas v. Bhojraj Divya, reported at 2023 SCC OnLine TS

4488, where the Court relied on a Larger Bench decision of the Allahabad

High Court in Ananti v. Channu, reported at 1929 SCC OnLine All 47, which

was also approved by the Hon’ble Supreme Court, to arrive at the conclusion

that if the objection as to jurisdiction is only one relating to territorial limits

or pecuniary limits, the plaint will be ordered to be returned for presentation

to the proper court, but if, on the other hand, it is found that, having regard

to the nature of the suit, it is not cognizable by the class of courts to which

the court belongs, the plaintiff’s suit will have to be dismissed in its entirety.

Hence, it is argued that the reliefs claimed in the instant suits, in their

present form, relate to commercial disputes and the suits had to be filed

9

before the concerned commercial court under the trappings of the CC Act.

Since those were filed before the ordinary civil court as a regular civil suit,

those were not maintainable and, in fact, ought to have been dismissed or

the plaints thereof rejected altogether.

21. Thus, it is argued that the present appeals ought to be dismissed.

22. Upon consideration of the arguments advanced by the respective parties, it

transpires that the germane issues which fall for consideration are as

follows:

(i) Whether the disputes involved in the suits are “commercial disputes”

coming within the ambit of the CC Act;

(ii) Whether the ‘specified value’ in respect of the suits is to be determined

by the market value of the properties involved;

(iii) In the event the suits are found to be commercial in nature, what would

be the appropriate course of action for the trial Court to adopt.

23. The said issues are decided as follows:

(i) Whether the disputes involved in the suits are “commercial

disputes” coming within the ambit of the CC Act

24. In Ashok Saraf (supra)

3

, this Bench had taken into consideration

Rameshwar (supra)

4

and had observed that the consideration before the

3

Ashok Saraf and others v. Asansol Durgapur Developm ent Authority, reported at

2025 SCC OnLine Cal 8829

4

Rameshwar and others v. State of Haryana and others , reported at (2022) 17 SCC 1

10

Hon’ble Supreme Court in Rameshwar (supra)

5

was entirely different from

the context of the CC Act. Certain land-owners challenged a land

acquisition proceeding as fraudulent, inasmuch as the said machinery was

used to further private ends by compelling the land-owners to transfer lands

to colonisers/developers on the one hand and on the other by cancelling the

land acquisition process. In such context, the Hon'ble Supreme Court

entered into the question whether the agreements entered into by the land-

owners effected transfer of title or were pure construction agreements in

nature. The Hon'ble Supreme Court came to the conclusion that the

agreements were not mere construction agreements but effected transfer of

right, title and interest in the land and came to its conclusions in respect of

compensation payable and other ancillary reliefs.

25. This Bench went on to observe that Blue Nile Developers Private

Limited v. Movva Chandra Sekhar, reported at 2021 SCC OnLine AP 3964, a

Division Bench judgment of the Andhra Pradesh High Court, was apposite to

the context, where the Division Bench came to the conclusion that the

Legislature had included various types of commercial transactions within

the fold of “commercial dispute” and either giving restrictive meaning or

reading of a clause in isolation and expansion of one word only would

hamper and frustrate the meaningful definition of the said clause. The Court

went on to hold that sub-clause (vi) of Section 2(1)(c) of the CC Act would

take within its fold not only construction contracts or infrastructure

contracts simpliciter but also contracts which had components of both.

5

Rameshwar and others v. State of Haryana and others , reported at (2022) 17 SCC 1

11

26. In order to avoid the perception of the parties that this Bench seeks to

blindly affirm its earlier decision in Ashok Saraf (supra)

6

, we choose to

undertake an independent enquiry into the issue as well.

27. Section 2(1)(c)(vi) of the CC Act is set out hereinbelow:

“2. Definitions.–(1) In this Act, unless the context otherwise

requires.—

***

(c) “commercial dispute” means a dispute arising out of—

***

(vi) construction and infrastructure contracts, including tenders;”

28. It is to be noted that the expression used in Clause (c) is “a dispute arising

out of”, thereby lending expansive connotation to the term “commercial

dispute”. Thus, any dispute arising out of construction and infrastructure

contracts, including tenders, would come within the ambit of sub-clause (vi)

thereof.

29. The question which arises is whether, to come under the purview of the CC

Act, such a contract would have to be for construction and infrastructure

simpliciter or may also come within the purview of the Act even if, apart

from construction and infrastructure, there are other elements involved.

30. The thrust of the CC Act can be deciphered from the Statement of Objects

and Reasons of the said statute, which highlights speedy disposal of high

value commercial disputes which involve complex facts and questions of law

and give rise to a need to provide for an independent mechanism for their

6

Ashok Saraf and others v. Asansol Du rgapur Development Authority , reported at

2025 SCC OnLine Cal 8829

12

early resolution, with the object in mind that early resolution of commercial

disputes shall create a positive image to the investors’ world about the

independent and responsive Indian legal system.

31. Thus, the underlying refrain of the CC Act is that, in order for the trappings

of the said statute to apply, a dispute has to be commercial in essence.

32. Section 2(1)(c) has to be read in such context . The said provision

encompasses all disputes arising out of various classes of transactions and

agreements, including construction and infrastructure contracts. Thus, in

order to come within the ambit of the Act, the contract from which the

dispute emanates has to be for construction and infrastructure.

33. It is to be noted that sub-clause (vi) of Section 2(1)(c) does not use the

expression “only” to circumscribe the phrase “construction and

infrastructure contracts”. Thus, on a plain reading of the said Clause, any

contract which has ingredients of construction and infrastructure comes

within the definition of “commercial dispute” if the dispute arises out of

such contract. The inclusion of other components, including transfer of a

portion of the bundle of ownership rights associated with the subject-land,

would only be superfluous in determining wheth er Section 2(1)(c)(vi) is

attracted. Even if there are elements of transfer in the contract, if it is

essentially for construction and infrastructure, disputes arising out of the

same comes within the definition of commercial dispute in terms of the said

provision. The determinant would be whether the contract giving rise to the

dispute contemplates construction and infrastructure, irrespective of

whether or not it has other ingredients.

13

34. In Rameshwar (supra)

7

, as explained in Ashok Saraf (supra)

8

, the scope of

consideration was different. The Hon’ble Supreme Court , in Rameshwar

(supra)

6

, took into consideration an earlier synonymous judgment, reported

at (2018) 6 SCC 215, where the Court found that the State machinery was

used to further private ends and such a decision to withdraw from

acquisition was fraud on the power under the Acquisition Act. In the said

context, the Hon’ble Supreme Court embarked upon an enquiry into the

nature of the transactions involved and held that collaboration agreements,

which enable the colonizers/developers to retain a significant portion of the

constructed area as consideration, are not in the nature of pure

construction contracts, since an analysis of those agreements depicts the

transfer of crucial rights and interests in the property, which otherwise are

enjoyed only by the land-owner, falling short only in respect of the “title”.

35. The backdrop of the examination in Rameshwar (supra)

9

was whether the

transactions entered into by the land-owners after issuance of a notice

under Section 4 of the Land Acquisition Act, 1894 were “transfers” or mere

agreements for construction, since the Hon’ble Supreme Court invalidated

transfers which took place after such notice. The said consideration,

however, had nothing to do with whether a dispute is commercial in nature

or not.

7

Rameshwar and others v. State of Haryana and others , reported at (2022) 17 SCC 1

8

Ashok Saraf and others v. Asansol Durgapur Development Authority , reported at

2025 SCC OnLine Cal 8829

9

Rameshwar and others v. State of Haryana and others , reported at (2022) 17 SCC 1

14

36. The Hon’ble Supreme Court, in the said judgment, was not considering at all

whether a contract loses its character as one for construction and

infrastructure merely by including elements of transfer of a portion of the

complex of rights associated with ownership.

37. Thus, in the light of the above discussions, the essence of Section 2(1)(c)(vi)

of the CC Act is whether a contract is for construction and infrastructure,

irrespective of whether there are additional ingredients to it. Undisputedly,

the agreements in the instant case are for construction and infrastructure,

since a housing project, by its very nature, pertains to infrastructure.

38. Thus, this issue is decided against the appellants. We come to the

conclusion that a development agreement, essentially for construction and

infrastructure, does not lose such character merely because in addition to

such component, other rights are created in favour of the developer.

(ii) Whether the ‘specified value’ in respec t of the suits is to be

determined by the market value of the properties involved

39. The appellants rely on the judgments of the Delhi High Court and Kerala

High Court in this context. In Mrs. Soni Dave (supra)

10

, a learned Single

Judge of the Delhi High Court sought to mitigate the rigour of Section 21 of

the CC Act by importing the provisions of the Court Fees Act and linking the

determination of ‘specified value’ with the reliefs claimed in the suit.

10

Mrs. Soni Dave v. M/s. Trans Asian Industries Expositions Pvt. Ltd., reported at

2016 SCC OnLine Del 4282

15

However, with respect, such a construction is alien to the CC Act itself.

Section 21 of the CC Act is set out below:

“21. Act to have overriding effect.—Save as otherwise provided,

the provisions of this Act shall have effect, notwithstanding anything

inconsistent therewith contained in any other law for the time being in

force or in any instrument having effect by virtue of any law for the

time being in force other than this Act.”

40. From the said provision, it is evident that it lends overriding effect to the CC

Act in an unbridled manner over all other statutes in force and instruments

having effect by virtue of any law other than the CC Act. Such a blanket

provision does not leave scope for any mitigation of such rigour by importing

provisions of other Acts, which are specifically sought to be overridden.

Such a construction would be patently contrary to Section 21 itself.

41. The Delhi High Court, in order to dilute the rigour of Section 21 of the CC

Act, took into consideration the principles of interpretation of statute with

regard to conflict between special and general statutes. Although the Court

Fees Act is a special statute in respect of court fees, the distinction between

a special and a general statute is a general principle, which must give way to

the specific language of the statute, as incorporated in Section 21 of the CC

Act. In view of the clear language of Section 21 itself, such general principles

cannot be imported to dilute the overriding effect introduced by the said

provision. The CC Act was enacted much subsequent to the Court Fees Act

and the Legislature was well aware of the existing statutes at that point of

time, which were specifically sought to be overridden by the provisions of the

16

CC Act in case of conflict. Hence, with utmost respect, we cannot but differ

from the proposition enunciated in Mrs. Soni Dave (supra)

11

. In Hindustan

Petroleum Corporation (supra)

12

, the Kerala High Court adopted the principle

laid down in Mrs. Soni Dave (supra)

9

and proceeded on the premise that the

plaintiff, being the dominus litis, has the right to determine the valuation of

the suit as per its choice. However, the specific language of Section 21 of

the CC Act does not accommodate any such principle.

42. Even otherwise, the matrices of valuation of a suit and determination of

‘specified value’ under the CC Act operate in separate fields and cannot be

mixed up with each other.

43. It may very well be that, for the purpose of valuation of the suit, the reliefs

claimed have to be looked into. The Suits Valuation Act, 1887 enables the

provisions of the Court Fees Act to apply in respect of valuation of suits,

linking the same with the reliefs claimed. In the State of West Bengal, the

West Bengal Court Fees Act, 1970, under Section 7, enumerates the manner

in which suits are to be valued and court fees are to be paid. However, for

the purpose of determining ‘specified value’ under the CC Act, the Court is

to look at Section 12 of the CC Act. In the present case, Clause (c) of Section

12(1) of the CC Act applies, which reads as follows:

11

Mrs. Soni Dave v. M/s. Trans Asian Industries Expositions Pvt. L td., reported at

2016 SCC OnLine Del 4282

12

Hindustan Petroleum Corporation, represented by Chairman and Managing

Director and Another v. Muhammed Illiyas and Others , reported at 2022 SCC OnLine

Ker 4594

17

“12. Determination of Specified Value.—(1) The Specified Value of the

subject-matter of the commercial dispute in a suit, appeal or application

shall be determined in the following manner—

***

(c) where the relief sought in a suit, appeal or application relates to

immovable property or to a right therein, the market value of the

immovable property, as on the date of filing of the suit, appeal or

application, as the case may be, shall be taken into account for

determining specified value;”

44. Hence, the determinant of ‘specified value’ under the CC Act is the market

value of the immovable property in respect of which, or a right wherein,

relief has been sought in a suit. Thus, whatever relief is sought in a suit

relating to an immovable property or to a right therein, the ‘specified value’

would be determined by the market value of the immovable property.

Reading Section 12 (1) (c) in conjunction with Section 2(1)(c)(vi) of the CC

Act, if a suit raises a commercial dispute arising out of a construction and

infrastructure contract and the relief sought in the suit relates to immovable

property or to a right therein, it is the market value of the immovable

property alone which will be the yardstick of calculation of the ‘specified

value’.

45. It is well-settled that if the language of th e statute is clear and

unambiguous, no external or internal aid of interpretation can be imported

to construe the same. Hence, a harmonious construction of Section 12 with

the relevant provision of the West Bengal Court Fees Act is not only

unnecessary, but entirely extraneous and superfluous.

18

46. Accordingly, it is the market value of the immovable property, in respect of

which relief has been sought in the present suits, which is the sole

determinant of the ‘specified value’. It is found from the registered

agreements, filed along with the plaint and relied on in the plaint in each of

the suits, that the market value of the subject property in both the suits is

above Rs. 30,00,000/-, which is the specified value for the court concerned.

As per the certificates issued by the Registrar, which were filed along with

the plaint by the appellants themselves, the market value of the property

involved in FMA 854 of 2024 is Rs. 34,65,000/- and that in FMA 859 of

2024 is Rs. 5,28,49,097/-, both exceeding Rs. 30,00,000/-. Hence, the

specified values of both the suits are above the pecuniary limit stipulated for

the courts concerned, thus taking the suits within the domain of commercial

suits, triable by a commercial court under the regime of the CC Act.

47. Hence, this issue is also decided against the appellants.

(iii) In the event the suits are found to be commercial in nature,

what would be the appropriate course of action for the trial

Court to adopt

48. In Patil Automation Private Limited (supra)

13

, the Hon’ble Supreme Court was

considering the mandatory nature of Section 12 -A of the CC Act in a

proceeding which had already been instituted as a commercial suit. In such

context, it was observed that although the said provision was mandatory, if

13

Patil Automation Private Limited and others v. Rak heja Engineers Private Limited,

reported at (2022) 10 SCC 1

19

the suit was filed prior to August 20, 2022, that is, the date of the said

judgment, the court would not reject the plaint outright. The said

proposition was further developed in Dhanbad Fuels Private Limited

(supra)

14

, where the Hon’ble Supreme Court observed that if the suit was

instituted without complying with Section 12-A prior to August 20, 2022

and was pending adjudication before the trial Court, the court shall keep the

suit in abeyance and refer the parties to time -bound mediation in

accordance with the said Section if an objection is raised by the defendant

by filing an application under Order VII Rule 11 of the Code or in cases

where the parties express an intent to resolve the dispute by mediation,

instead of rejecting the plaint. There is no doubt that in the present case,

both the suits were filed in the year 2020, that is, before the cut-off date.

However, since the suits were filed as ordinary civil suits before the court of

ordinary civil jurisdiction, the applicability of Section 12-A of the CC Act is a

non-issue. Thus, the ratio laid down in the aforementioned judgment is not

attracted at all.

49. In Bhojraj Srinivas (supra)

15

, a Division Bench of the Telangana High Court

held that if the jurisdiction relates to territorial or pecuniary limits of the

court, the plaint will be ordered to be returned, whereas if it is found that,

having regard to the nature of the suit, it is not cognizable by the class of

courts to which the court belongs, the suit has to be dismissed in its

14

Dhanbad Fuels Private Limited v. Union of India and another , reported at (2025) 9

SCC 424

15

Bhojraj Srinivas v. Bhojraj Divya, reported at 2023 SCC OnLine TS 4488

20

entirety. However, the said proposition is general in nature and may apply

in cases where there is a complete bar to the institution of the suit.

50. In cases where a commercial suit has been instituted before a regular civil

court, however, the ratio laid down by the Hon’ble Supreme Court in Aase

Ram (supra)

16

, is applicable. The Hon’ble Supreme Court was pleased to

observe that if the civil court is of the view that the dispute , being

commercial in nature, has to go also before the commercial court, then the

plaint has to be returned under Order VII Rule 10 of the Code and the entire

plaint cannot be rejected under Order VII Rule 11 of the Code.

51. Insofar as the decision of the coordinate Bench of this Court in Awam

Marketing LLP (supra)

17

is concerned, in the particular facts of the said case,

the coordinate Bench directed the suit to be transferred to the Commercial

Division of this Court. However, the said question did not specifically fall for

consideration and as such, the said direction did not form a part of the ratio

decidendi of the judgment and, as such, is not a binding precedent.

52. With utmost respect, Section 15 of the CC Act does not permit the court to

transfer a suit, which has been instituted after the enactment of the CC Act

before the ordinary civil court, to be transferred to a commercial court or the

Commercial Division of this Court. The limited scope of operation of Section

15 vis-à-vis transfer is only in respect of suits and applications which were

already pending at the juncture when the CC Act came into force. Since, at

the time of institution of the said suits and applications, the CC Act was not

16

Aase Ram v. Amit Kumar [Civil Appeal No. 9481/2025]

17

Awam Marketing LLP v. M/s Orient Beverages Limited and Ors. [APO/144/2023 with

CS/85/2016]

21

in operating, it was not possible for the plaintiffs/applicants to file the suit

before the concerned commercial court or Commercial Division. As such,

Section 15 of the CC Act permits the court to transfer such pending suits,

after coming into force of the CC Act, to the appropriate commercial

courts/Commercial Division having determination under the CC Act.

53. The CC Act came into force with effect from December 31, 2015. Thus,

when the instant suits were filed in the year 2020, the CC Act was already

in force. Hence, there is no scope of transfer of the said suits under Section

15 of the CC Act. The matter here pertains to the lack of subject-matter

jurisdiction of the ordinary civil courts, thus, hitting at the root of the

inherent jurisdiction of such courts to entertain or adjudicate such the

suits. Unlike dearth of territorial or pecuniary jurisdiction, where the

objection in that regard has to be taken at the first instance (rendering such

objection a waivable right) in case the court lacks inherent jurisdiction to

adjudicate on the subject-matter involved, there is no recourse left before

the court to proceed with the suit. Since the very institution of such a suit

is without inherent jurisdiction ab initio, the said threshold defect cannot be

cured merely by transferring the suit to the court having determination.

54. This is not a case where the initial defect, hitting at the root, can be rectified

later. The domain of operation of and paradigm contemplated under the CC

Act is entirely different than the trappings of a regular civil suit under

Section 9 of the Code. As opposed to an ordinary civil suit, in respect of

commercial suits coming within the purview of the CC Act, there are several

distinguishing features, even apart from the mandatory requirement of

22

Section 12-A of the CC Act, including but not limited to mandatory timelines

for filing written statement and other statutory mechanisms and devices

incorporated in the CC Act to ensure speedy disposal of commercial

disputes.

55. The hierarchy of courts envisaged under the CC Act is a self-sufficient

regime of specifically designated courts, distinct and different from the civil

courts having jurisdiction under the Code of Civil Procedure and/or the

Bengal, Agra and Assam Civil Courts Act, 1887. Thus, the only recourse

opened to the trial Court in the present case was to return the plaint for

being presented before the appropriate commercial court having jurisdiction.

56. The appellants vociferously allege that the suit, if presented afresh at this

juncture after the plaint being returned, might be barred by limitation due

to the fault of the defendants/respondents. However, we are unable to

accept such contention. It is only the plaintiffs who are to blame, if anyone,

for the delay in filing the application under Order VII Rule 10 of the Code.

The suit was filed with initial defect of court fees and despite several

directions by the trial Court, the plaintiffs chose not to put in the deficit

court fees and ultimately, only on January 20, 2022, filed an application

under Order VI Rule 17 of the Code to amend the plaint, such amendment

being designed to rectify the defect as to deficit court fees by changing the

reliefs sought. The amended plaint was filed only on February 23, 2022 and

the summons was served on the defendants/respondents for the first time

near the end of the year 2022. Therefore, the defendants/respondents had

no option before the end of 2022 to appear in the suit or to have knowledge

23

thereof, let alone file any application for return of the plaint. Only after

entering appearance in the suit, the application under Order VII Rule 10

was filed on May 11, 2023, for which the defendants/respondents cannot be

blamed in any manner. Hence, if the rigours of limitation visit the

plaintiffs/appellants while filing the suit afresh, it is for the plaintiffs to

argue before the concerned court as to whether Section 14 of the Limitation

Act will be attracted, in view of the plaintiffs having bona fide proceeded with

the suits in their present form before the ordinary civil court. If such a plea

is raised, it will be open for the court concerned, where the plaint is

presented afresh after being returned, to consider in accordance with law

the applicability of Section 14 of the Limitation Act.

57. However, such inconvenience of the plaintiffs/appellants cannot be a

consideration in deciding the appropriate course of action in case a suit is

filed before the ordinary civil court which inherently lacks jurisdiction to

decide on the subject-matter of the dispute.

58. In such view of the matter, the appropriate course of action in the present

case is precisely the one adopted by the learned trial Judge, that is,

returning the plaint under Order VII Rule 10 of the Code for being presented

before the Commercial Court having jurisdiction. It is also the appropriate

course of action in terms of the dictum of the Hon’ble Supreme Court in

Aase Ram (supra)

18

.

59. This issue, thus, is decided accordingly.

18

Aase Ram v. Amit Kumar [Civil Appeal No. 9481/2025]

24

CONCLUSION

60. In view of the above findings, the learned trial Judge is found to have been

justified in returning the plaints of both the suits, to be presented before the

Commercial Court having jurisdiction.

61. Thus, both the appeals fail.

62. Accordingly, FMA No. 854 of 2024 is dismissed on contest, thereby affirming

the impugned judgment and order, bearing Order No. 22 dated May 17,

2024 passed by the learned Civil Judge (Senior Division), Third Court at

Barasat, District-North 24 Parganas in Title Suit No. 58 of 2020.

63. Similarly, FMA No. 859 of 2024 is also dismissed on contest, thereby

affirming the impugned judgement and order, bearing Order No. 22 dated

May 17, 2024 passed by the learned Civil Judge (Senior Division), Third

Court at Barasat, District-North 24 Parganas in Title Suit No. 57 of 2020.

64. Interim orders, if any, stand vacated.

65. There will be no order as to costs.

66. Urgent certified copies, if applied for, be supplied to the parties upon

compliance of all formalities.

(Sabyasachi Bhattacharyya, J.)

I agree.

(Supratim Bhattacharya, J.)