LMJ INTERNATIONAL LIMITED vs CONCAST STEEL AND POWER LIMITED AND ORS
- Court
- Calcutta High Court
1
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
Present:
The Hon’ble Justice Debangsu Basak
And
The Hon’ble Justice Aryak Dutt
APOT 70 of 2022
IA NO: GA 1 of 2022
LMJ International Limited
vs.
Concast Steel & Power Limited and Ors.
For the Appellant :Mr. S.N. Mitra, Ld. Advocate General
Mr. D. N. Sharma, Sr. Adv.
For the Respondent No. 1:Mr. Rupak Ghosh, Adv.
Mr. Pourush Bandopadhyay, Adv.
Mr. Rajesh Upadhyay, Adv.
For the Respondent No. 2: Mr. Jayanta Kr. Mitra, Sr. Adv.
Mr. Trilok Bose, Sr. Adv.
Mrs. Suchismita Ghosh, Adv.
Mr. Pradip Kr. Sarawagi, Adv.
Hearing Concluded on : September 03, 2026
Judgement on : September 16, 2026
DEBANGSU BASAK, J.:-
1. Appellant has assailed the judgment and order dated
March 8, 2022 passed in IA GA 7 and 8 of 2021 in CS 77 of
2013.
SACHIN
KAHAR
Digitally signed by
SACHIN KAHAR
Date: 2026.09.16
12:07:48 +05'30'
2
2. For the sake of convenience, the parties before us are
referred to in the same order as they have appeared before the
learned Single Judge and as in the plaint.
3. Appellant before us is the defendant no. 2 and had
filed IA GA 7 of 2021 seeking dismissal of the suit on the
ground of abatement. Plaintiff had however filed IA GA 8 of
2022 seeking amendment of the plaint and substitution of the
plaintiff consequent upon the liquidator being appointed in
respect of the plaintiff.
4. By the impugned judgment and order, learned Single
Judge has allowed amendment of the plaint to bring on record
the liquidator appointed in respect of the plaintiff. Learned
Single Judge has dismissed the application being IA GA 7 of
2021 seeking abatement of the suit.
5. Learned Advocate appearing for the plaintiff has
contended that, the subject matter of the dispute between the
parties to the suit are commercial disputes within the
meaning of Section 2(1)(c)(i) of the Act of 2015. He has referred
to the pleadings in the plaint. He has contended that, the
cause of action of the plaintiff emanates out of High Sea Sales
effected in respect of the metallurgical coke. He has contended
that, the tripartite agreement has been sought to be brought
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about is false and fabricated. Such tripartite agreement
according to him has a bearing on the title to the goods
concerned. Interpretation of such tripartite agreement has
fallen for consideration in the suit. Therefore, the subject
matter of the disputes involved in the suit has fallen within
the meaning of Section 2(1)(c)(i) of the Act of 2015.
6. Learned Advocate appearing for the plaintiff has
contended that, the transactions between the parties are
commercial in nature. According to him all ingredients of
Section 2(1)(c)(i) of the Act of 2015 have been satisfied.
7. On the second issue, learned Advocate appearing for
the plaintiff has contended that, there was no delay on the
part of the plaintiff applying for substitution and amendment.
He has referred to Order XXII Rule 4 and Rule 8 of the Code of
Civil Procedure, 1908. He has also referred to the list of dates.
He has contended that, there was no delay on the part of the
plaintiff applying for substitution and consequential
amendment particularly in view of the intervening COVID
period.
8. Learned Advocate appearing for the plaintiff has relied
upon AIR 1948 Bom 47 (Velji Sivji and Another vs.
Mathuradas Haridas) and contended that, there was no
4
refusal on the part of the plaintiff to apply for substitution.
According to him, Limitation Act, 1963 is not attracted in the
facts and circumstances of the present case. He has relied
upon XLIII ILR ALL 621 (Khunni Lal vs. Rameshar) in
support of his contention.
9. Learned Senior Advocate appearing for the defendant
No. 1 has contended that, the suit does not involve a
commercial dispute within the meaning of Section 2(1)(c) of
the Act of 2015. According to him, the character of a suit is
determined by the substance of the plaint read as whole and
not the ancillary relief, the status of the parties or the
commercial setting in which the controversy has arisen.
10. Learned Senior Advocate appearing for the defendant
No. 1 has contended that, the pleadings in the plaint would
demonstrate that the genesis and substance of the suit is a
claim founded upon title to and alleged wrongful detention of
goods, alleged fraud and fabrication of the tripartite agreement
dated March 28, 2012. None of such cause of action pleaded
in the plaint, would arise out of any category enumerated
under Section 2(1)(c) of the Act of 2015.
11. Learned Senior Advocate appearing for the defendant
No. 1 has contended that, Section 2(1)(c) of the Act of 2015 is
5
not attracted because there is no privity of contract between
the plaintiff and the defendants. The plaintiff is not a party to
any mercantile document. He has contended that, the plaintiff
although not a party to the only mercantile document
purports to repudiate the same as forged.
12. Learned Senior Advocate appearing for the defendant
No. 1 has contended that the ancillary prayer for damages
partakes the character of principal relief and cannot
independently impress the suit with a commercial character.
13. Learned Senior Advocate appearing for the defendant
No. 1 has contended that, the present appeal arises from an
order passed in the non-commercial jurisdiction. He has
pointed out that, at no point of time the alleged commercial
character of the suit was raised. The appellant has not raised
such point even in the memorandum of appeal.
14. Learned Senior Advocate appearing for the defendant
No. 1 has relied upon 2020 (15) SCC 585 (Ambalal
Sarabhai Enterprises Limited vs. K. s. Infraspace LLP
and Another) to contend that, the provisions of the Act of
2015 must be strictly construed. He has contended that, any
doubtful or fraudulent case must be resolved against the
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commercial jurisdiction and in favour of the Ordinary Original
Civil Jurisdiction.
15. Learned Senior Advocate appearing for the defendant
No. 1 has relied upon 2025 SCC OnLine Ker 1840 (Teliz
Realtors vs. JTL Projects Private Limited) for the
proposition that, the character of the suit is determined by the
substance of the plaint. He has relied upon 2021 SCC Online
Bom 13984 (Bharat Huddanna Shetty vs. Ahuja
Properties & Developers and others) , 2022 (1) Bom CR 527
(Glasswood Realty Pvt. Ltd. and Others vs. Chandravilas
Kailashkumar Kothari) , 2021 SCC OnLine Cal 4240
(Ladymoon Towers Private Limited vs. Mahendra
Investment Advisors Private Limited) , 2019 SCC OnLine
Del 9954 (Kailash Devi Khanna and Others vs. DD Global
Capital Ltd. and Others ), 2020 SCC OnLine Mad 28051 (R.
Kumar and Another vs. T.A.S. Jawahar Ayya and Others )
and 2022 SCC OnLine Del 3635 (IHHR Hospitality
(Andhra) Pvt. Ltd. vs. Seema Swami and Others) in this
regard. He has contended that, the plaintiff has no cause of
action founded on the tripartite agreement, not being party
thereto. Its cancellation has been sought only as an ancillary
relief.
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16. Learned Senior Advocate appearing for the defendant
No. 1 has contended that, Section 2(1)(c) of the Act of 2015 is
attracted where there is a privity of contract between the
plaintiff and the defendants to the suit in respect of a
mercantile document. He has relied upon 2025 SCC OnLine
Del 1758 (Meena Vohra vs. Master Hosts Pvt. Ltd. and
Others) for the proposition that, both the two ingredients of
Section 2(1)(c)(i) must exist simultaneously for it to be
attracted.
17. Learned Senior Advocate appearing for the defendant
no. 1 has contended that, in the event, the suit is treated as
one to involve all the commercial disputes within the meaning
of the Act of 2015 though, present appeal is not maintainable
in view of Section 13 of the Act of 2015. He has relied upon
2018 (14) SCC 715 (Kandla Export Corporation and
Another vs. OCI Corporation and Another) , 2020 Volume 4
SCC 234 (BGS SGS Soma JV vs. NHPC Limited) , 2023 SCC
OnLine Bom 2667 (Bank of India vs. M/s Maruti Civil
Works) in support of his contention.
18. Relying upon 2026 SCC OnLine 1264 (Shri Balaji
Industrial Engineering Ltd. vs. Steel Authority of India
Ltd.) , learned Senior Advocate appearing for the defendant No.
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1 has contended that, where, the parties have participated in
the proceeding without raising an objection, then, the same
does not affect the jurisdiction of the Court passing the order.
The present plaintiff is claiming title to the goods through the
original plaintiff. Therefore, according to him, it cannot be said
that, the suit does not involve a commercial dispute within the
meaning of Section 2(1)(c) of the Act of 2015.
19. Learned Senior Advocate appearing for the defendant
no. 1 has contended that, his client is supporting the stand of
the plaintiff so far as the substitution of the plaintiff by the
Liquidator is concerned.
20. Learned Senior Advocate appearing for the defendant
no. 2 has contended that, the disputes involved in the suit are
not commercial disputes within the meaning of the Act of
2015. In support of his contention, he has referred to the
pleadings and the prayers made in the plaint.
21. Referring to the plaint, learned Senior Advocate
appearing for the defendant no. 2 has contended that
defendant no. 1 is the clearing agent. Defendant no. 2 has
been impleaded although, there is no contractual relationship
between the plaintiff and the defendant no. 2.
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22. Learned Senior Advocate appearing for the defendant
no. 2 has contended that the suit does not survive upon the
plaintiff going into liquidation. He has referred to the list of
dates. He has pointed out, the plaintiff went into Corporate
Insolvency Resolution Process on April 7, 2022. In such
proceedings, an order of winding up in respect of the plaintiff
was passed on September 26, 2018. A liquidator was
appointed in respect of the affairs of the plaintiff. Such
liquidator did not take any step to bring itself on record
despite being aware of the suit and as such the suit had
abated.
23. Learned Senior Advocate appearing for the defendant
no. 2 has contended that, the liquidator of the plaintiff was
well aware of the pendency of the suit. In support of such
contention, he has referred to the order dated January 21,
passed by the Appeal Court. He has pointed out that, the
application for substitution was filed on January 10, 2022.
24. In support of his contention that, suit stands abated,
learned Senior Advocate appearing for the defendant no. 2 has
relied upon Order XXII Rule 8 of the Code of Civil Procedure,
1908 and 1994 1 SCC 235 (State of West Bengal vs.
National Builders) , 2008 (13) SCC 30 (Entertainment
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Network (India) Limited vs. Super Cassette Industries
Limited) 2008 (8) SCC 321 (Perumon Bhagvathy
and
Devaswom vs. Bhargavi Amma) .
25. Two issues have fallen for consideration in the present
appeal which are as follows:-
i. Whether the subject matter of the suit falls
within the meaning of a commercial dispute
under Section 2(1)(c) of the Commercial
Courts Act, 2015 or not, and
ii. Whether the learned Single Judge was
correct in allowing application for
substitution and amendment and rejecting
the application for abatement or not.
26. Since, our jurisdiction to hear the present appeal in
the non-commercial Division would depend upon the answer
to the issue No. I raised in the present appeal, we have to deal
with the same first.
27. Plaintiff filed a suit against the appellant and two of
the respondents in the present appeal and has sought inter
alia for the following reliefs :-
a) A decree for specific delivery of 11, 074.090 MT
of coke lying at R-5 SAIL Yard, Visakhapatana
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and Ripley Godown (EC Bose) at Visakhapatnam
by the defendant No. 1;
b) A decree for specific delivery of 5000 MT of the
metallurgical coke lying at the defendant No. 2
godown at Sri Munisuvrata Agri International
Limited park, near Naval dockyard,
Vishakhapatnam – 530028 by the defendant no.
2.
c) Decree for delivery up and cancellation of the
alleged tripartite agreement dated March 23,
2012 purportedly entered into between the
defendant Nos. 1, 2 and 3, a copy whereof is
annexure “C” to the plaint.
d) The orders dated December 5, 2012 and
December 6, 2012 passed in A.P No. 933 of 2012
(LMJ international Limited Vs. Sarat Chatterjee &
Co. (VSP) Private Limited) and the Orders dated
December 21, 2012 and January 31, 2013 in A.P.
No. 1068 of 2012 (LMJ International Limited Vs.
Sarat Chatterjee & Co. (VSP) Private Limited) be
recalled;
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e) The orders passed in G.A. no. 289 of 2013 in C.S.
no. 17 of 2013 in so far as the same puts any
embargo to the plaintiff’s claim in this suit be
suitably modified.
f) Permanent injunction restraining the defendant
no. 1 through its servants, agents, assigns or
otherwise howsoever from dealing with, disposing
of or in any manner encumbering the
metallurgical coke which arrived by the vessel
m.v. Filia Joy and m.v. Glovis Master and lying at
R-5 SAIL Yard in Vishakhapatnam and Reply
Godown (E.C. Bose) also at Vishakhapatnam,
except to deliver the same to the plaintiff.
g) Permanent injunction restraining the defendant
no.2 whether by itself or through its servants,
agents, assigns or otherwise howsoever from
dealing with, disposing of or in any manner
encumbering the metallurgical coke received by it
from the defendant no. 1 lying at defendant no. 2
godown at Sri Munisuvrata Agri International
Limited, zone-IX Exim port near Naval Dockyard
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Visakhapatnam 530028 except to the extent of
making over the same to the plaintiff.
h) In the event, it be found that any part of the
metallurgical coke received by the defendant no.2
from the defendant no. 1 has been removed by
the defendant no.2 from the defendant no.2
godown at Sri Munisuvrata Agri International
Limited Zone IX, Exim Park, near Naval
Dockyard, Vishakhapatnam – 530 028, then and
in that event, an enquiry into damages and a
decree for such sum as may be found due and
payable thereupon.
i) Alternatively and enquiry into the damages
suffered by the Plaintiff due to the loss in the
metallurgical coke that was to be delivered to the
plaintiff;
j) Receiver.
k) Injunction.
l) Costs.
m) Further and/or other reliefs;
28. In the suit, plaintiff has claimed ownership of a portion
of the imported metallurgical coke. According to the plaintiff,
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specified quantities of metallurgical coke had been imported
through two vessels namely M.V. Filia Joy and M.V. Glovis
Master. According to the plaintiff, the defendants have
fabricated a tripartite agreement dated March 23, 2012 and
collusively obtained orders in AP No. 933 of 2012 and AP No.
1068 of 2012.
29. Averments made in the plaint have relevance for
determining as to whether the suit involves a commercial
dispute within the meaning of the Act of 2015 or not. In the
present case, the suit of the plaintiff was pending when the
Act of 2015 had come into effect. Suit had therefore been filed
in the non-Commercial Division of the High Court as,
Commercial Division of the High Court on the date of filing of
the suit was yet to be constituted.
30. On coming into effect of the Act of 2015, the Court
before, which the suit was pending, was required to direct
transfer of the suit, in the event the disputes in the suit had
involved commercial disputes within the meaning of the Act of
2015.
31. In the facts and circumstances of the present case,
none of the parties had raised the point of suit involving
commercial dispute within the meaning of the Act of 2015 and
15
therefore the suit was required to be transferred to the
Commercial Division at the Trial Court stage. The present
appeal has been filed by the defendant no. 1 who has
contended before us that, the suit does not involve a
commercial dispute within the meaning of the Act of 2015.
Consequently the Memorandum of Appeal, given the stand of
the defendant no. 1 in relation to the dispute involved in the
suit is concerned, does not contain a ground that the suit
involves a commercial dispute within the meaning of the Act of
2015.
32. However, and in the course of hearing of appeal
plaintiff has contended that the suit involves a commercial
dispute within the meaning of the Act of 2015 and therefore
has requested the Court to invoke jurisdiction under Section
15 of the Act of 2015 to transfer the suit to the Commercial
Division.
33. It is in this context of the request of the plaintiff that
we have framed the first issue for consideration.
34. The plaintiff had filed the suit in 2013. During the
pendency of the suit, IBBI had applied for appointment of an
insolvency resolution professional in respect of the plaintiff on
November 7, 2017. On January 4, 2018 consequent upon a
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resolution passed by the Committee of Creditors a liquidator
had been appointed in respected of the plaintiff. National
Company Law Tribunal had by an order dated September 26,
2018 appointed a liquidator over the affairs of the plaintiff.
The liquidator so appointed had issued publication in
newspaper on September 29, 2018.
35. The liquidator had appeared in proceeding before the
Appeal Court in relation to the suit on August 13, 2019 when,
the liquidator wanted time to file an application which was
allowed. Liquidator had appeared before the Division Bench
on September 3, 2019 and sought time to file an application
subject to payment of cost. Liquidator had appeared on
December 20, 2019 before the Division Bench. Liquidator had
also appeared on January 21, 2020 before the Division Bench
where the liquidator was granted opportunity to take steps for
impleadment.
36. The liquidator had appeared before the learned Special
Officer on January 13, 2021, September 10, 2021 and
September 17, 2021.
37. Defendant No. 1 had applied on October 8, 2021 being
GA 7 of 2021 for dismissal of the suit on account of
appointment.
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38. By an order dated November 22, 2021 the liquidator
had appeared before the learned Single Judge. Liquidator had
affirmed an affidavit-in-opposition to GA 7 of 2021 on
December 5, 2021.
39. By an order dated January 5, 2022, the Division
Bench had disposed of the appeal with a direction upon the
learned Single Judge to dispose of the application as a special
case.
40. Liquidator had taken out the application seeking
substitution and consequential amendment being GA 8 of
2021 on January 10, 2022.
41. Supreme Court in Ambalal Sarabhai Enterprises
Limited (supra) has held that, averments of the plaint would
be relevant for determination as to whether, the suit is
required to be tried by the Commercial Court under the Act of
2015 or not. It has also held that, the provisions of the Act of
2015 are to be strictly construed.
42. The Kerala High Court in Teliz Realtors (supra) has
held that, a suit for recovery of money where according to the
pleadings in the plaint the only intention of the defendant was
to embezzle money of the plaintiff, was held not to be in the
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nature of a commercial transaction falling within the Act of
2015 but in the nature of fraudulent transaction.
43. Bombay High Court did not find a suit for recovery of
money lent and advanced to be one involving a commercial
dispute within the meaning of the Act of 2015 in Glasswood
Realty Pvt. Ltd. and Others (supra) . In the facts of that
case, a friendly loan has been held not to fall within the
meaning of commercial dispute under the Act of 2015.
44. Bombay High Court in Bharat Huddanna Shetty
(supra) has held that, a suit for recovery of money in respect
of a friendly loan where, the plaintiff had gone beyond the call
of business, not to be a commercial dispute within the
meaning of the Act of 2015.
45. BGS SGS Soma JV (supra) has held that, only such
orders which are enumerated under Section 37 of the
Arbitration and Conciliation Act, 1996 are appealable.
46. On the issue of appealability of an order passed by the
Commercial Court of the Commercial Division, the Bombay
High Court in Bank of India (supra) has held that, the order
rejecting an application under Order VII Rule 10 and Rule
11(d) of the Code of Civil Procedure, 1908 is not appealable
under the Act of 2015.
19
47. Supreme Court in Shri Balaji Industrial
Engineering Ltd. (supra)
has held that, a proceeding under
Section 37 of the Act of 1996, even if it involves a commercial
dispute and such proceeding was not heard by the
Commercial Court, nonetheless, if the Hon’ble Judge had the
determination as a Commercial Court, then, such order
cannot be faulted on the ground of lack of jurisdiction.
48. In Ladymoon Towers Private Limited (supra) , the
suit had involved recovery of loan. The statements in the
plaint had evinced that the directors of the plaintiff and the
defendant were known to each other which served as reason
for the plaintiff to grant a short-term loan. In such
circumstances, the Court has held that, suit did not involve a
commercial dispute.
49. In Kailash Devi Khanna and Others (supra) the
plaintiff had filed a suit in Commercial Division seeking to
recover money lent and advanced. Since, in the facts of that
case, the transaction did not involve any mercantile
document, the suit was held not to involve a commercial
dispute within the meaning of the Act of 2015.
50. In Meena Vohra (supra) the suit was not based on any
transaction involving mercantile documents nor had the
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plaintiff acted in the capacity of a financer. Therefore, the suit
has been held not to involve commercial dispute within the
meaning of the Act of 2015.
51. In R. Kumar and Another (supra) the plaintiff had
granted loan and as security thereof, the defendant had
offered mortgage of an immoveable property. The transactions
as pleaded by the plaintiff had been found not to involve
commercial dispute within the meaning of the Act of 2015.
52. In IHHR Hospitality (Andhra) Pvt. Ltd. (supra) the
plaintiff had claimed that its employee had access to various
bank accounts of the plaintiff. Such employee had embezzled
huge amounts through forge cheques as also by making
fraudulent direct transfers from the bank account. The court
had held that, since the basic question was recovery of money
on account of embezzlement, it cannot be held to be a suit
involving a commercial dispute within the meaning of the Act
of 2015.
53. All commercial disputes do not come within the
definition of the commercial disputes as appearing in the Act
of 2015. The Act of 2015 has defined “commercial dispute” in
Section 2(1)(c). It is only those commercial disputes which
have been defined in Section 2(1)(c) of the Act of 2015 are
21
required to be decided by the Commercial Court or the
Commercial Division or the Commercial Appellate Division as
the case may be.
54. Authorities cited that the Bar, have required the
averments in the plaint to be considered in order to determine
whether the disputes in the suit involve a commercial dispute
within the meaning of the Act of 2015 or not. Provisions of the
Act of 2015 have to be strictly construed. Those suits which
involve a commercial dispute but do not fall within the
meaning of Act of 2015 are to be decided by a regular Suit
Court. In other words, such suits are to be decided by the
Courts which are not Commercial Courts or Commercial
Division or the Commercial Appellate Division within the
meaning of the Act of 2015.
55. The decision as to whether or not the suit involves a
commercial dispute within the meaning of the Act of 2015 has
to be arrived at on the basis of the averments made in the
plaint and on a strict construction of the provisions of the Act
of 2015. It would therefore necessarily mean that, the facts of
each case would have to be evaluated on the anvil of the
averments made in the plaint and the strict constructions of
the provisions of the Act of 2015.
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56. In the facts and circumstances of the present case,
each of the parties are business entities. Plaintiff has claimed
title to certain portion of the metallurgical coke which was
imported by two vessels on High Sea Sales. Transactions
relating to metallurgical coke and in fact, title thereto, would
necessarily involve commercial instruments entered into
between the legal entities involved in commerce with regard to
the metallurgical coke in the suit. That apart, plaintiff has
sought a declaration with regard to a tripartite agreement.
Such tripartite agreement had been entered into by three legal
entities in furtherance of their acts of commerce relating to the
portion of the metallurgical coke over which the plaintiff has
claimed title.
57. Contention of the plaintiff is that, the subject matter of
the suit therefore, falls within the meaning of Section 2(1)(c)(i)
of the Act of 2015. Section 2(1)(c)(i) of the Act of 2015 has
specified that, commercial disputes means a dispute arising
out of the ordinary transactions of merchants, bankers,
financers and traders such as those relating to mercantile
documents, including enforcement and interpretation of such
documents.
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58. Section 2(1)(c) of the Act of 2015 or any other
provisions of the Act of 2015 have not ousted jurisdiction of a
Commercial Court or the Commercial Division or the
Commercial Appellate Division as the case may be to decide
an issue of fraud relating any commercial dispute within the
meaning of the Act of 2015.
59. In order a dispute constitutes a commercial dispute
under Section 2(1)(c)(i) of the Act of 2015, there must be:-
(a) Ordinary transactions of merchant, bankers, financers and
traders, and
(b) Such ordinary transactions must relate to mercantile
documents.
Enforcement and interpretation of mercantile documents
are included in the scope and ambit of Section 2(1)(c)(i) of
the Act of 2015.
60. Therefore under Section 2(1)(c)(i) of the Act of 2015,
two essential ingredients must exists simultaneously. The
transactions in the suit must be ordinary transaction of
merchants, bankers, financers and traders and that, there are
mercantile documents with regard to such ordinary
transactions between such entities. Section 2(1)(c)(i) of the Act
of 2015 encompasses a request for enforcement and
24
interpretation of mercantile documents. It would also allow an
issue of fraud relating to such mercantile document to be
decided should the same be raised.
61. In the facts and circumstances of the present case, the
various mercantile documents have to be considered at the
trial to pronounce on the claims made by the plaintiff. Such
mercantile documents relate to title to the portion of the
metallurgical coke imported by two vessels. While the parties
had developed jural relationship amongst each other, they had
been acting as ordinary merchants and traders in respect of
the acts of commerce, that is, High Sea Sales of metallurgical
coke. Parties had acted as merchants and traders while
entering into the mercantile documents relating to the goods
involved.
62. Plaintiff has claimed title to a portion of the
metallurgical coke in respect of which the defendants had
entered into jural relationship, on the strength of a scheme of
the amalgamation being sanctioned in respect of the original
plaintiff. The plaintiff at the time of filing of the suit therefore,
had stepped into the shoes of the original plaintiff so far as it
related to the portion of the metallurgical coke imported.
Therefore by virtue of the sanctioned scheme of Amalgamation
25
which the plaintiff has pleaded, the parties to the suit have
jural relationship which require consideration by the suit
Court. In our view, jural relationship between the parties to
the suit have been established on a meaningful and purposive
reading of the plaint.
63. Ambalal Sarabhai Enterprises Limited (supra)
has required the Courts to consider the averments made in
the plaint for the purpose of evaluating whether the suit
involves a commercial dispute within the meaning of the Act of
2015 or not. On such principles therefore, as has been
enunciated in Ambalal Sarabhai Enterprises Limited
(supra) the subject matter of the dispute in the suit, herein,
involves a commercial dispute within the meaning of Section
2(1)(c)(i) of the Act of 2015.
64. Prayer (c) of the plaint by which the plaintiff has
sought a decree for delivery and cancellation of the tripartite
agreement dated March 23, 2012 entered into between the
defendants, would necessarily involve interpretation of a
mercantile document entered into between the legal entities
who have acted as merchants or traders in continuation of
their acts of commerce. We hasten to add that, we have not
pronounced on the issue that has been raised in prayer (c) of
26
the plaint in any manner whatsoever. Decision on delivery
upon cancellation of the tripartite agreement dated March 23,
2012 may be had at the trial of the suit.
65. Availability of an appeal or its absence against an
order passed in a suit has no manner of bearing on the
decision as to whether or not the disputes involved in the suit
is a commercial dispute within the meaning of the Act of
2015. The test to be applied by the Court on a meaningful and
purposive reading of the plaint is whether the disputes
between the parties to the suit have fallen within the meaning
of commercial dispute under Section 2(1)(c) of the Act of 2015
or not. If the answer to such a query is in the affirmative, the
suit involves a commercial dispute within the meaning of the
Act of 2015 and has to be heard and decided by Commercial
Court or a Commercial Division or a Commercial Appellate
Division as the case may be.
66. Applying such test to the facts and circumstances of
the present case, we are of the view that, the suit involves a
commercial dispute within the meaning of Section 2(1)(c)(i) of
the Act of 2015.
67. The suit having been filed prior to the Act of 2015
coming into effect in exercise of powers under Section 15
27
thereof, and at the invitation of the plaintiff, we direct the suit
to be transferred from the Non-commercial Division to the
Commercial Division of the High Court. Department will
transmit records of CS 77 of 2013 along with all connected
applications therewith to the Commercial Division of the High
Court where it will be renumbered. On such transmission
being made, Department will treat CS 77 of 2013 and all
connected applications to be disposed of in the Non-
commercial Division.
68. In view of the discussions above and the directions
issued, issue No. (i) is answered by holding that the subject
matter of the suit falls within the meaning of Section 2(1)(c)(i)
of the Act of 2015.
69. Having held that, the suit involves a commercial
dispute within the meaning of the Act of 2015, and having
directed the suit to be transferred to the Commercial Division
in exercise of the powers under Section 15 of the Act of 2015,
the appeal therefore also has to be necessarily transmitted to
the Commercial Division.
70. Department will therefore transmit APOT 70 of 2022
along with IA GA 1 of 2022 to the Commercial Division, and
renumber it there. Immediately on transmission and
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renumbering, Department will treat APOT 70 of 2022 along
with all connected applications to be disposed of in the Non-
Commercial Appellate Division.
71. Since we have decided that the dispute involved in the
suit is a commercial dispute and consequently directed
transmission of the records to the Commercial Division, and
since, we directed transmission of the appeal to the
Commercial Appellate Division we refrain from deciding the
second issue.
72. APOT 70 of 2022 along with all connected applications
stands disposed of accordingly.
[DEBANGSU BASAK, J.]
73. I agree.
[ARYAK DUTT, J.]