B.N.NOBBIS AND CO AND ORS vs KAMALES MALLIK AND ORS

OD-1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE

RVWO/18/2026
IA No. GA/1/2026

B. N. NOBBIS AND CO AND ORS
-VS-
KAMALES MALLIK AND ORS

BEFORE:
The Hon’ble JUSTICE DEBANGSU BASAK
-AND-
The Hon’ble JUSTICE MD. SHABBAR RASHIDI


For the Petitioner : Mr. Mainak Bose, Sr. Adv.
Mr. Shuvasish Sengupta, Adv.
Mr. Anurag Bagaria, Adv.
Ms. Pallavi Sengupta, Adv.

For the Respondent no.1 : Mr. Kushal Chatterjee, Adv.
Mr. Arindam Paul, Adv.
Ms. Debarati Das, Adv.

For the Respondent no.2 : Mr. D. N. Sharma, Sr. Adv.
Mr. Altamas Alim, Adv.
Mr. S. R. Saha, Adv.
For the Respondent
nos.3, 4, 5 & 9 : Ms. Ishita Chakraborty, Adv.

For the Respondent no.7 : Mr. A. P. Gomes, Adv.

For the Respondent no.11 : Mr. Subhendu Bandopadhyay, Adv.
Mr. Saikat Pal, Adv.

HEARD ON : 30.06.2026
DELIVERED ON : 30.06.2026

DEBANGSU BASAK, J.:-

1. Review applicant seeks review of the judgment and order dated
April 24, 2026 passed in APD/9/2025.

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2. In the appeal in which, the judgment under review was passed, we
held that, the judgment and order under appeal before us was a
nullity due to lack of jurisdiction of the learned Trial Judge in
trying and deciding a suit involving a commercial dispute within
the meaning of the Commercial Courts Act, 2015. The suit
involved a commercial dispute. Despite the coming into effect of
the Act of 2015 and the Commercial Division established, the suit
was heard in the non-commercial division.
3. Learned Senior Advocate appearing for the review applicant
submits that, two days prior to the judgment and order under
review, Hon’ble Supreme Court on April 22, 2026, in Civil Appeal
No. Of 2026 [SLP (C) No.8111 of 2026] (Shri Balaji Industrial
Engineering Ltd. (formerly known as Balaji Industrial Products
Ltd.) -Vs- Steel Authority of India Ltd – IISCO Steel Plant
[Formerly known as IISCO Steel Plant]) reversed a decision of
the High Court, rendered in APO/65/2024 (Steel Authority of India
Limited –Vs- Shri Balaji Industrial Products Limited). He submits
that, the decision dated February 2, 2026 of the High Court was
considered by the Judgment and order under review.
4. Learned Senior Advocate appearing for the review applicant relies
upon (2016) 3 Cal LT 38 (Nihar Ranjan Biswas –Vs- The State
of West Bengal), AIR 1967 Cal 518 (Tinkari Sen and Others –
Vs- Dulal Chandra Das and Others), (2003) 10 Supreme Court
Cases 228 (Amarjit Kaur –Vs- Harbhajan Singh and Another)
and (2005) 4 Supreme Court Case 741 (Board of Control For

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Cricket in India and another -Vs- Netaji Cricket Club and
others) in support of the contention that, the present review is
maintainable. He contends that, the decision of Shri Balaji
Industrial Engineering Ltd. (Supra ) rendered by the Supreme
Court on April 22, 2026 is a binding precedent. The same,
however, could not be drawn to the attention of the Court on the
date when, the judgment and order under review was passed
since, the learned counsel for the review applicant was unaware of
such decision. He submits that, a binding precedent not noticed
by a Court, is a good ground for review when attention of the Court
is drawn to such binding precedent.
5. Learned advocate for the respondent submits that, the discovery of
a subsequent binding authority is no ground for review. He relies
upon (2024) 7 Supreme Court Cases 315 (Government Of NCT
of Delhi, Through its Secretary, Land and Building Department
and Anr -Vs- K. L. Rathi Steels Limited and Others) . He
submits that the view expressed in Shir Balaji Industrial
Engineering Ltd. (supra) was contrary to (1982) 1 Supreme
Court Cases 552 (State of Madhya Pradesh -Vs- Dewadas and
Others).
6. Referring to Shri Balaji Industrial Engineering Ltd. (Supra)
rendered by the Supreme Court on April 22, 2026, learned
advocate appearing for the respondent submits that, the same
cannot be said to be a settled law requiring the High Court to take
notice of the same as a ground for review and allow the review

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proceeding. He submits that, the ratio laid down in Shri Balaji
Industrial Engineering Ltd. (Supra) , is contrary to the ratio of an
earlier decision of the Supreme Court, rendered in Dewadas and
Others (Supra) and therefore cannot be treated as a settled view.
7. Respondent no.1 filed a suit for recovery of possession and mesne
profit being CS/244/2008. In such suit, a decree dated January 9,
2024 was passed. Being aggrieved by such judgment and decree
dated January 9, 2024 passed in CS/244/2008, the respondent
no.1 preferred an appeal therefrom. Such appeal was disposed of
by the judgment and order under review. As noted above, we
disposed of the appeal of the respondent no.1 holding that, the
decree dated January 9, 2024 was a nullity.
8. In the judgment and order under review, we held that the, suit
involved a commercial dispute within the meaning of the
Commercial Courts Act, 2015. We held that, the learned Trial
Judge who passed the decree dated January 9, 2024 was not with
the requisite determination/roster governing Commercial Division
of the High Court. Consequently, judgment and decree dated
January 9, 2024 was held to be a nullity.
9. While holding that the judgment and decree dated January 9,
2024 to be a nullity, we took note of various provisions of the Act
of 2015 as also the practice directions. We also took note of our
decision rendered in at least two of the appeals on similar point.
10. One of our decisions on the issue of lack of jurisdiction/roster
rendered in Steel Authority of India Limited Vs Shri Balaji

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Industrial Engineering Ltd. on February 2, 2026 was carried in
appeal before the Hon’ble Supreme Court. The Hon’ble Supreme
Court in Shri Balaji Industrial Engineering Ltd. (Supra) , held
that, the Division Bench was not justified in setting aside the
decision of the learned Single Judge solely on the ground of lack of
jurisdiction without examining the merits of the case.
11. The decision of the Hon’ble Supreme Court rendered in Shri Balaji
Industrial Engineering Ltd. (Supra) is binding on us. The same
was rendered on April 22, 2026 while the judgment and order
under review is dated April 24, 2026.
12. On April 24, 2026, when, we passed the judgment and order under
review, our attention was not drawn to Shri Balaji Industrial
Engineering Ltd. (Supra) by either of the parties. Justification for
our attention not being drawn to the binding precedent of Shri
Balaji Industrial Engineering Ltd. (Supra) canvassed on behalf of
the review applicant is that the learned counsel for the review
applicant was not aware of the same on April 24, 2026.
13. In Nihar Ranjan Biswas (Supra) , one of us sitting singly allowed a
review on the ground that, the binding precedent was not brought
to the notice of the Court. In doing so, reliance was placed on a
Co-ordinate Bench decision reported in AIR 1967 Cal 518
( Tinkari Sen and Others –Vs- Dulal Chandra Das and Others)
and (2003) 10 Supreme Court Cases 228 (Amarjit Kaur –Vs-
Harbhajan Singh and Another).

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14. The Co-ordinate Bench in Tinkari Sen and Others (supra) held
that overlooking a proposition of law well-settled and beyond
controversy furnished a good ground for review as it is an error
apparent on the face of the record.
15. Amarjit Kaur (supra) held that, rejecting a review application
summarily despite a judgment of the Supreme Court being
brought to the notice of the review Court without expressing any
view on the matter was a sufficient ground of setting aside an
order made on the review petition.
16. Essentially, the two authorities noted above, are of the view that,
non–consideration of binding precedent is a good ground for
review.
17. In Board of Control for Cricket in India (supra) , the Supreme
Court while dealing with the powers of review held that, as follows:
89. Order 47 Rule 1 of the Code provides for filing an
application for review. Such an application for review would
be maintainable not only upon discovery of a new and
important piece of evidence or when there exists an error
apparent on the face of the record but also if the same is
necessitated on account of some mistake or for any other
sufficient reason.
90. Thus, a mistake on the part of the court which would
include a mistake in the nature of the undertaking may also
call for a review of the order. An application for review
would also be maintainable if there exists sufficient reason
therefor. What would constitute sufficient reason would
depend on the facts and circumstances of the case. The
words “sufficient reason” in Order 47 Rule 1 of the Code are
wide enough to include a misconception of fact or law by a
court or even an advocate. An application for review may be
necessitated by way of invoking the doctrine “actus curiae
neminem gravabit”.

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18. On the issue of maintainability of the appeal, K. L. Rathi Steels
Limited and Others (supra) held that, a decision of a higher
forum rendered subsequent to the order under review is no ground
for grant of review. In the facts of the present case, the binding
precedent which the review applicant seeks to rely upon was
passed prior to the judgment and order under review.
19. The contention that, the ratio laid down in Shri Balaji Industrial
Engineering Ltd. (Supra) need not be followed in view of the
dictum of Dewadas and Others (supra) should not be entered into
by us. We find that Shri Balaji Industrial Engineering Ltd.
(Supra) is a binding precedent on us and was delivered prior to the
judgment and order under review.
20. In such circumstances, we allow the prayer for review.
21. Since our decision on lack of jurisdiction rendered in the judgment
and order under review is incorrect, in view of Shri Balaji
Industrial Engineering Ltd. (Supra) the finding that, the
judgment and decree dated January 9, 2024 is a nullity is recalled.
22. In terms of the ratio laid down in Shri Balaji Industrial
Engineering Ltd. (Supra) , the appeal is required to be heard on
merits.
23. We held in the judgment and order under review, particularly in
paragraph 8 thereof, that the suit was for recovery of possession
and the suit property was being utilized for commercial
exploitation by running an office therefrom.

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24. In our view, the subject matter of the suit involves a commercial
dispute within the meaning of Section 2(i)(c)(vii) of the Act of 2015.
At the time of institution of the suit, the suit property was being
used for commercial exploitation by the tenants therein.
25. In such circumstances, the direction contained in paragraph 17 of
the judgment and order under review is modified. The appeal is
transferred to the Commercial Division for hearing on merits.
26. The Registry is directed to transfer the appeal being APD/9/2025
from the Non-commercial Division to the Commercial Division and
renumber the same appropriately. Immediately on transferring and
renumbering of APD/9/2025, the Registry will treat APD/9/2025
as disposed of in the Non-commercial Division.
27. List the appeal in the Commercial Division four weeks hence.
28. The Registry will treat the paper book filed in APD/9/2025 as the
paper book in the Commercial Division.


(DEBANGSU BASAK, J.)

29. I agree.

(MD. SHABBAR RASHIDI, J.)





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