DIVIJ MERCANTILES PRIVATE LIMITED vs ASHOKA HAWAI AND SHOES PVT LTD
- Court
- Calcutta High Court
In the High Court at Calcutta
Commercial Division
Original Side
Judgment (2)
PRESENT :
THE HON’BLE JUSTICE
ANIRUDDHA ROY
CS-COM/354/2024
[Old Case No.CS/41/2022]
IA NO: GA/1/2022, GA-COM/7/2024,
GA-COM/11/2025
DIVIJ MERCANTILES PRIVATE IMITED
VS
ASHOKA HAWAI AND SHOES PVT LTD
For the plaintiff : Mr. Jishnu Chowdhury, Sr. Adv.
Mr. Hemant Tiwari, Adv.
Mr. Shantanu Mishra, Adv.
For the defendant : Mr. V.V.V. Sastry. Adv.
Ms. Khushi Gupta, Adv.
Heard on : September 7, 2026
Judgment on : September 7, 2026
[In Court]
2
ANIRUDDHA ROY, J :
FACTS:
1. This is an application filed by the defendant praying for rejection
of plaint on two fold grounds:
(i) The suit is not a commercial suit within the meaning of
Sub-section (c) to Section 2 read with Sub-section (f)
to Section 2 of the Commercial Courts Act, 2015
(hereinafter , CC Act .) and
(ii) The suit is barred under the provision of the Bengal
Money-Lenders Act, 1940 (hereinafter , BML Act ).
2. It is noted that beyond 120 days of service of writ of summons,
the defendant has filed the written statement on the basis of
concession given by the plaintiff. However, subsequently the
plaintiff has filed an application being IA NO.GA-COM/7/2024
praying that the written statement filed by the defendant be
taken off the file. Such application is pending.
3. The defendant has applied for rejection of plaint.
SUBMISSIONS:
4. Mr. V.V.V. Sastry, learned advocate appearing for the defendant
has referred to the plaint and submits that the basis and
foundation of the plaint is that the plaintiff allegedly has
advanced a sum of Rs. 65,000,00/- to the defendant. The
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defendant has failed and neglected to return the money. Plaintiff
has served legal notice. Then the plaintiff has filed the instant
suit claiming principal along with interest.
5. Mr. Sastry has drawn attention of this Court to the statements
of the plaintiff at page 27 of the application with regard to the
documents relied upon by the plaintiff and the copies of the
document annexed to the plaint and submits that the plaintiff
has not whispered of any mercantile document or any written
agreement in support of the transaction. Nowhere in the plaint
any averment has been made to bring the plaint within the four
corner of the definition of commercial disputes within the
meaning of the said CC Act. Hence, the instant suit is not a
commercial suit and the plaint filed should be rejected. In
support, Mr. Sastry has referred to the following judgments:
(i) In the matter of: Prime Hitech Textiles LLP versus
Manish Kumar, reported at 2022 SCC OnLine Cal
2326 and
(ii) In the matter of: Meena Vohra vs. Master Hosts Pvt.
Ltd. and Others, reported at 2025 SCC OnLine Del
1758.
6. On the second issue raised by Mr. Sastry, the plea taken under
BML Act , he submits that in absence of any declaration being
made in the plaint by way of averments or by disclosing
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document that the plaintiff carries on business as a money
lender having a valid certificate under BML Act, the cause of
action pleaded in the plaint is also barred by law under the
provision of BML Act and the plaint should be rejected. In
support, Mr. Sastry submits that the Hon’ble Supreme Court
had considered the issue under BML Act and passed orders
dated July 23, 2024 at page 4 to the supplementary affidavit,
February 16, 2026 and at page 11 to the supplementary
affidavit and April 6, 2026 at page 13 to the supplementary
affidavit In the matter of: Raj Kumar Santoshi versus
Prashant Malik, rendered in SLP (Crl.) No. 5485 of 2024.
He submits irrespective of the matter where the issue has been
raised that the lenders do not have requisite certificate under
the BML Act, the Court should ensure that the proceedings
instituted by such money lender are nipped in the bud.
7. Mr. Shantanu Mishra, learned advocate led by Mr. Jishnu
Chowdhury, learned senior advocate appearing for the plaintiff
submits that the definition under Sub-section (c ) to Section 2
of CC Act is exhaustive in its nature and not restricted to any
written contract only. The provision is illustrative and not a
narrow one. There is no specified category of document
mentioned under the Act which can only be defined as
mercantile document. Sub-section (f) to Section 2 of CC Act is
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also exhaustive and illustrative. The documents referred to in
the plaint and the transaction based thereupon, as pleaded in
the instant plaint, are required to be ascertained first whether
those documents are in the nature of mercantile document or
not. Once the requirements of such ascertainment comes, it
becomes a triable issue calling upon a detail fact finding enquiry
and in such situation, plaint cannot be rejected summarily. In
support, he has relied upon the following decisions:-
(i) In the matter of: STRONG TOWERS PRIVATE
LIMITED versus KARNANI CONSTRUCTIONS AND
OTHERS, reported at 2025 SCC OnLine Cal 7853;
(ii) In the matter of: ADM Agro Industries Kota & Akola
Pvt. Ltd. versus Aone Agro Products Pvt. Ltd. and
another, rendered in FMAT 259 of 2024 IA NO: CAN
2 of 2024 dated January 21, 2025 passed by
Hon’ble High Court, Calcutta and
(iii) In the matter of: DIVIJ MERCANTILES PVT LTD
versus SMT. SABITA RUNGTA AND ORS, rendered in
APOT 52 of 2025 with CS-COM/536/2024 dated
April 27, 2026 passed by Hon’ble High Court,
Calcutta;
8. Referring to Section 13 of BML Act , Mr. Mishra, learned
advocate appearing for the plaintiff submits that there is no
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absolute bar, at the threshold, to maintain the present plaint on
the basis of the averments made therein. Sub-section (3) to
Section 13 of BML Act provides, if the money lender fails to
pay penalty within the time fixed under Sub-section (2) or
within such further time as the Court may allow, the Court may
dismiss the suit. This specifically shows that the Court has the
authority to allow the money lender to cure the defect, if any, by
exercising its discretion before rejecting the plaint and if the
money lender cures the defect by paying the penalty, as provided
under the statute, the Court is not empowered to dismiss the
suit on the ground of absence of requisite licence under BML
ACT. In support, he has relied upon a decision In the matter
of: Dutta Vinimay Private Limited versus Dinesh Singh,
reported at 2026 SCC OnLine Cal 4625.
9. In the light of the above submissions, the plaintiff submits that
this is not a fit case, where the plaint should be rejected.
DECISION:
10. After hearing the rival contentions of the parties and upon
perusal of the materials on record, it appears to this Court from
a meaningful reading of the plaint that the plaintiff has
instituted the suit with the case that the plaintiff has lent and
advanced money to the defendant and the defendant has failed
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and neglected to return it. The relevant averments from the
plaint are quoted below:
“ 1 . The plaintiff is a company within the meaning of the
Companies Act 2013, having its registered office at
rd
‘Tobacco House’, Room No.305(S), 3 Floor, 1, Old Court
House Corner, Kolkata – 700001, within in the
jurisdiction aforesaid. The plaintiff is engaged, inter
alia, in the business of financial intermediation and
financial activities.
*
3. The defendant was in need of funds and approached the
plaintiff on or about January 2020. Pursuant to
discussions held, inter alia, at the office of the plaintiff
situated within the jurisdiction aforesaid, the plaintiff
agreed to advance funds to the defendant which will be
repayable at 12 % interest per annum. The parties
agreed that the interest would continue to be paid by the
defendant without fail every month and in the event,
there was default in payment of interest in any month,
the plaintiff would be entitled to recall the loan at such
time as it deemed fit.
4. The plaintiff advanced a sum of Rs.65,00,000/- (Rupees
sixty-five lakhs) to the defendant by way of bank transfer
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from the plaintiff’s bank account maintained with HDFC
Bank, Stephen House Branch, within the jurisdiction
th th
aforesaid, between 18 January 2020 and 18
September 2020. The sums have been received by the
defendant. The said sums were repayable with interest
at 12% per annum. A copy of the ledger maintained by
the plaintiff is annexed hereto and marked as Annexure
“B”. A copy of the bank statement of the plaintiff’s bank
account maintained with HDFC Bank, Stephen House
Branch, for the period January 2020 to March 2021 is
annexed hereto and marked as Annexure “C”.
5. In respect thereof, the defendant has made part-payment
of a sum of Rs.1,37,650/- (Rupees one lakh, thirty-seven
th
thousand, six hundred and fifty), on 10 October 2020
on account of repayment of interest as evident from the
bank statement annexed hereto as Annexure “C”.
6. In addition thereto, the defendant has from time to time,
nd
and until 2 August 2021, the defendant has paid TDS
of a sum of Rs.39,437/- (Rupees thirty-nine thousand,
four hundred and thirty seven) for the Financial Year
2020-2021 and Rs.3,600/- (Rupees three thousand and
six hundred) for the Financial Year 2019-2020 in respect
of the interest repayable to the plaintiff. In this regard, a
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copy of the Form 26AS of the plaintiff maintained with
the Income Tax Department, Government of India, is
annexed hereto and marked as Annexure “D”.
7. From the above, it is clear that the principal sum received
by the defendant is admitted and the interest payable
thereon is also admitted. However, although the
defendant has paid/deposited the TDS amount against
the interest payable with the government, the defendant
has failed and/or neglected to pay the interest against
the same to the plaintiff, save and except a sum of
Rs.1,37,650/- (Rupees one lakh, thirty-seven thousand,
six hundred and fifty) to the plaintiff, as detailed in
paragraph 5 above.”
11. On reading of the definition of commercial dispute as defined
under Sub-section (c) to Section 2 of CC Act , it appears to this
Court that there is no mention of any written contract. However,
the expression is there mercantile documents with regard to
the transaction specified thereunder. The definition of
document as defined under Sub-section (f) to Section 2 of CC
Act speaks of documents of several kinds.
12. On a conjoint and harmonious reading of these two provisions of
CC Act in the light of the averments made in the plaint, this
Court finds that the financial transaction between the parties, as
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pleaded in the plaint on the basis of the available documents
disclosed and mentioned in the plaint, the nature of transaction
between the parties is required to be ascertained first. From the
case made out in the plaint, it cannot be summarily said that
the transaction between the parties, ex facie , is not a
commercial transaction or that the dispute stated in the plaint,
ex facie , is not a commercial dispute within the meaning of CC
Act, unless a proper trial takes place on the issue.
13. The provisions laid down under Rule 11 to Order VII of CPC is
not a mandate on the Court. The provision only mandates on a
meaningful reading of the plaint, if the plaint, ex facie, is found
to be, inter alia , barred by any law, the plaint shall be rejected,
at the threshold. However, if on a meaningful reading of the
plaint, the Court finds an arguable case is there to ascertain the
nature and character of the plaint case by holding a fact finding
enquiry, then such a plaint cannot be rejected, at the threshold
in a summary manner and the plaint must stand for trial.
Plaintiff cannot be non-suited, at the threshold, in a summary
manner so loosely and hastily if an arguable and a triable case
is pleaded in the plaint.
14. Insofar as, the issue raised under the BML Act , as narrated
above, after reading the provisions laid down under Section 13
of BML Act , this Court has already rendered its view In the
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matter of: Dutta Vinimay Private Limited (Supra) that since
a curing provision is there under the statute, the money-
lender/plaintiff should be granted an opportunity before
rejecting the plaint.
15. The order of the Hon’ble Supreme Court referred on behalf of the
defendant In the matter of: Raj Kumar Santoshi (Supra) was
not under a situation where the maintainability of a civil suit
was under challenge and a plaint was demanded for rejection.
The order was passed in connection with a criminal proceeding.
16. In the matter of: Prime Hitech Textiles LLP (supra) , a co-
ordinate Bench has returned the plaint since it had found an
unimpeachable case for rejection of plaint that the transaction
stated in the plaint was not of commercial in nature. In the
instant case, from reading of the statements made in the plaint,
this Court finds to determine the issues raised by the defendant,
the same requires a properly constituted trial of the suit and
hence the instant plaint cannot be rejected at the threshold.
Thus, the ratio in the said judgment would not apply in the facts
of the instant case.
17. In the matter of: Meena Vohra (supra) , a co-ordinate Bench of
Delhi High Court found an unimpeachable case that the
disputes in the subject suit therein did not qualify as a
commercial dispute. In the instant case, from reading of the
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statements made in the plaint, this Court finds to determine the
issues raised by the defendant, the same requires a properly
constituted trial of the suit and hence the instant plaint cannot
be rejected at the threshold. Thus, the ratio in the said judgment
would not apply in the facts of the instant case.
18. In view of the foregoing reasons and discussions, this Court is of
the considered and firm view that the instant plaint shall stand
for trial where the defendant shall be at liberty to take all points
of maintainability of the suit along with other issues and the
issue regarding maintainability, if raised, shall also be tried
during the trial of the suit along with other issues.
19. It is made clear that, this Court has not gone into the merits of
the issues raised by the defendant and the defendant shall be at
liberty to raise the issues as the point of maintainability during
the trial.
20. It is noted that, the defendant shall also be entitled to raise its
issue with regard to the provisions under BML Act at the time of
trial and this Court has not expressed any opinion on the same,
at this stage.
21. It is also made clear that, this Court has not expressed any
opinion on filing of the written statement by the defendant and
the application pending in connection therewith filed by the
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plaintiff. The application shall be decided in accordance with
law.
22. Resultantly, the instant application IA No.GA-COM/11/2025
stands dismissed , without any order as to costs.
23. The other two applications shall appear under the appropriate
heading in due course.
(ANIRUDDHA ROY, J.)
Arsad
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