SUDHA KANKARIA vs KRISHNA KUMAR BHATTER (HUF)

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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Before:
The Hon’ble Justice Debangsu Basak
And
The Hon’ble Justice Aryak Dutt

APD No. 8 of 2026
With
CS No. 150 of 2020
GA No.1 of 2026
Sudha Kankaria
Vs.
Krishna Kumar Bhatter (HUF)


For the Appellants : Mr. Debrup Bhattacharjee, Adv.
Mr. Subrota Goswami, Adv.

For the Respondents : Mr. Krishnaraj Thaker, Sr. Adv.
Mr. Chayan Gupta, Adv.
Mr. Samriddha Sen, Adv.
Mr. Kaushik De, Adv.
Mr. Raghav Munshi, Adv.
Ms. Mohini Majumdar, Adv.
Ms. Ayelita Ghosh, Adv.
Mr. Adrish Chatterjee, Adv.

Hearing Concluded On : 12.10.2026
Judgment Delivered On : 13.11.2026

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Aryak Dutt, J.:
1. The appeal is directed against a judgment and decree
th
dated 8 June, 2026, passed by the learned Single Judge in G.A.
No. 3 of 2025 in C.S. No. 150 of 2020 ( Krishna Kumar Bhatter
(HUF) v. Sudha Kankaria ). By the impugned judgment, the
learned Single Judge allowed the plaintiff‟s application for
judgment upon admission under Order XII Rule 6 of the Code of
Civil Procedure, 1908 (hereinafter referred to as “the Code”) and
passed a decree for a sum of Rs. 83,97,808/- with an interest at
st
15% per annum from 1 December, 2017 until repayment. The
applications being G.A. No. 1 of 2021 and G.A. No. 5 of 2025,
which were heard along with G.A. No. 3 of 2025, were disposed of
as having become infructuous.

2. The respondent/plaintiff, a Hindu Undivided Family,
rd
instituted the suit on 3 December, 2020. It claims Rs.
80,00,000/- as principal and Rs. 27,97,808/- as interest
st
computed up to 31 March, 2020, in all Rs. 1,07,97,808/-, for
money lent and advanced to Dilip Chand Kankaria, the deceased
husband of the appellant/defendant, with further interest at 15%
per annum until repayment.

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3. The plaintiff‟s case is that the loan was advanced in
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three tranches, namely Rs. 50,00,000/- on 17 June, 2008, Rs.
th nd
20,00,000/- on 7 July, 2008 and Rs. 10,00,000/- on 2
September, 2009, with interest at 15% per annum at four-
monthly rests. The borrower died in 2013, whereupon the liability
devolved on the defendant, who agreed to repay. Interest was
paid until November, 2017. The defendant defaulted from
December, 2017.

4. In her written statement, the defendant admitted that
Rs. 80,00,000/- had been lent to her late husband. She admitted
that interest at the agreed rate had been paid until November,
2017, and that she was not in a position to repay the outstanding
sum of Rs. 83,97,808/-, being the principal with interest up to
st
31 March, 2018. She pleaded without a licence under the
Bengal Money Lenders Act, 1940 (“the 1940 Act”), in view of
Section 13 of that Act the Plaintiff cannot get a decree. She also
pleaded that, from 1st April, 2018, the outstanding sum stood
converted into an advance towards the price of an antique framed
canvas painting, which the plaintiff had agreed to buy for Rs.
1,50,00,000/-.

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5. In G.A. No.1 of 2021, the plaintiff‟s application for
attachment of the defendant‟s bank accounts and other reliefs,
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an order dated 22 March, 2021, restrained the defendant from
transferring or alienating one of her properties. That order
remained in force until the application was disposed of by the
impugned judgment.


6. The learned Single Judge held that the admissions in
the written statement were clear and unambiguous, that the
disputed question of the proposed sale of the painting need not
be gone into, and that the case squarely fell within Order XII Rule
6 of the Code. The impugned judgment does not deal with the
defence under the 1940 Act.

7. The appellant contends that the dispute in the suit is a
“commercial dispute” within the meaning of Section 2(1)(c)(i) of
the Commercial Courts Act, 2015 (hereinafter referred to as “the
2015 Act”), of a value above the Specified Value, as under Section
7 of the 2015 Act the suit had to be heard and disposed of by the
Commercial Division of this Court and not on the regular side.
Both sides have filed written notes on that question and on the
1940 Act.

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8. The respondent points out that this question was
never raised in the suit, and has been raised for the first time in
the appeal. That, in our view, does not prevent us from deciding
it. A new plea that involves only a question of law may be
permitted to be raised at the appellate stage.

9. Learned Counsel for the appellant submits that the
dispute is a commercial dispute. A combined reading of
paragraphs of the plaint shows that in usual course of business,
the plaintiff decided to allot amounts as loans to others, for funds
designed to invest in developing business in their social
community. The defendant‟s husband approached the plaintiff
having encountered financial adversity in operating his business
and the plaintiff agreed to lend him an amount, which he was to
repay in its entirety, with interest at 15% per annum until
repayment. On the plaintiff‟s own pleading, therefore, the loan
was neither an isolated nor a gratuitous transaction between
private individuals. It was made in the course of the plaintiff‟s
stated business, as an investment.

10. “Financier” is not defined under the 2015 Act. Relying
on the meaning given in the Oxford Universal Dictionary, as
noted in Ladymoon Towers Private Limited v. Mahendra

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Investment Advisors Private Limited , reported in 2021 SCC
OnLine Cal 4240 , and in P. Ramanatha Aiyar‟s Law Lexicon, it
is said that a “financier” includes “a capitalist”. Black‟s Law
th
Dictionary (4 Edition.) describes a capitalist as “one exclusively
dependent on accumulated property, whether denoting a person
of large wealth or one having an income from investments”.


11. The plaintiff applied for a licence under the 1940 Act,
or at least subjected itself to that Act by paying the penalty under
Section 13(2), which only a “money-lender”, defined in Section
2(13) of that Act as a person who carries on the business of
money lending, would do. Interest was paid to the plaintiff after
deduction of tax at source. Both limbs of Section 2(1)(c)(i) are
therefore satisfied. The plaintiff is a financier, and the loan in suit
was advanced in the course of its ordinary transactions.

12. On the 1940 Act, it is submitted that the relevant date
for determining whether the plaintiff held a valid licence is the
date on which the loan was advanced, as held by a Division
Bench of this Court in Swaika Vanaspati Products Ltd. v.
Canbank Financial Services Ltd. , reported in 2000 SCC
OnLine Cal 234 . Admittedly, the plaintiff held no licence on
those dates. The bar in Section 13(1) can be lifted only in the

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manner provided by Section 13(2), namely upon payment of the
penalty fixed by the Court “during the trial”. The plaintiff‟s own
payment, made on its own motion and before the trial
commenced, is not compliance with Section 13(2). Reliance is
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placed on the judgment dated 13 May, 2026 of a Division
Bench of this Court in Kamlesh Agarwal v. Sulochana Poddar
being APDT No. 8 of 2025 , which held that whether the plaintiff
is a money-lender and whether the 1940 Act is attracted raises a
triable issue, so that a summary decree could not be passed. At
the very least, it is said, a triable issue arose and no decree on

admission could have been passed.

13. Learned Counsel for the respondent submits that the
plaintiff is not a merchant, banker, trader or financier. It merely
gave financial assistance to the defendant‟s husband, who had
encountered difficulties in operating his business and also had
some personal financial problems.

14. The borrower undertook to repay the entire principal,
and interest was to run only until the principal was repaid. The
loan was therefore not given to earn interest. Interest was
incidental, and was not the object of the loan. Reliance is placed
on the judgment of Ladymoon (supra) , which held that a

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commercial purpose would not include an agreement where
profit-making is an incidental outcome of the transaction. The
meanings of “financier” in the Law Lexicon defined as “one skilled
in levying and managing public money; a capitalist” and in
Black‟s Law Dictionary defined as “a person employed in the
economical management and application of public money; one
skilled in the management of financial affairs”, do not fit the
plaintiff, which neither levies nor manages public money and is
not a capitalist. Neither the plaint nor the written statement
shows that lending money is the plaintiff‟s “ordinary transaction”.
Even if it were, the transaction in suit was not entered into to
earn revenue. The suit was therefore rightly tried on the regular

side.
15. On the 1940 Act, it is submitted that, although the
plaintiff is not a money-lender, it has by way of abundant caution
paid the penalty under Section 13(2), as shown by a challan
forming part of its affidavit-in-opposition to G.A. No. 6 of 2025.
This Court has consistently held that the defect is curable, and
that once the penalty is paid the Court shall proceed with the
suit under the second limb of Section 13(3) and may pass a
decree. Reliance is placed on Swaika Vanaspati (supra), and
Kamlesh Agarwal (supra) and Sudha Kankaria v. Bhawna

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Bothra being APDT No. 2 of 2026 , decided on 18 May, 2026,
are distinguished on the ground that no penalty had been paid in
those cases. The order of the Supreme Court in Rajkumar
Santoshi v. Prashant Malik relied upon by the appellant in the
written notes on argument filed before us, was passed in
proceedings under Section 138 of the Negotiable Instruments Act,
1881, contains no provision for curing the defect. It lays down no
ratio on the 1940 Act.

16. In the alternative, if the dispute is held to be
commercial, the plaint be returned under Order VII Rule 10 of
the Code read with its Explanation and Rule 9(2) of the High
Court at Calcutta Commercial Courts Practice Directions, 2021,
for presentation before the Commercial Division.
17. Section 2(1)(c)(i) of the 2015 Act
reads:
“(c) „commercial dispute‟ means a dispute
arising out of—

(i) ordinary transactions of merchants,
bankers, financiers and traders such as those
relating to mercantile documents, including
enforcement and interpretation of such
documents;”

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18. Section 2(1)(i) defines “Specified Value”, in relation to a
commercial dispute, as the value of the subject-matter of the suit
as determined in accordance with Section 12, which shall not be
less than three lakh rupees or such higher value as may be
notified by the Central Government. Under Section 12(1)(a),
where the relief sought is for recovery of money, the Specified
Value is the money sought to be recovered, inclusive of interest
computed up to the date of filing of the suit. The claim here is Rs.
1,07,97,808/-. The requirement of Specified Value is plainly met,
and is not disputed.

19. The suit was filed in December, 2020, long after the
2015 Act came into force. It is not a pending suit of the kind
contemplated by Section 15.

20. In Ambalal Sarabhai Enterprises Ltd. v. K.S.
Infraspace LLP , reported in (2020) 15 SCC 585, the Supreme
Court held that the provisions of the 2015 Act are to be strictly
construed, and that it is “necessary to carefully examine and
entertain only disputes which actually answers the definition
„commercial disputes‟ as provided under the Act”. The Supreme
Court also held that “the nature of the dispute and the jurisdiction
to try the same is to be reflected in the suit itself since in a civil

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suit the pleadings, namely, averments in the plaint would at the
outset be relevant to confer jurisdiction”, and that, without such
basic pleadings, the question would have to be decided in every
suit on extraneous material. A matter falls within the jurisdiction
of the Commercial Division if it is a commercial dispute within
Section 2(1)(c), and if it is of a Specified Value.


21. In T.E. Thomson & Company Limited v.
Swarnalata Chopra , reported in 2025 SCC OnLine Cal 5076 , it
was held that whether a suit relates to a commercial dispute is a
threshold test, to be decided at the initial stage for the purpose of
jurisdiction.

22. A suit for money lent and advanced falls within
Section 2(1)(c)(i) only if the conditions are met. The plaintiff
must be one of the classes of persons named in the clause,
here a banker or a financier. The dispute must also arise out
of an ordinary transaction of that person.
23. Following Ambalal Sarabhai (supra) , we decide
the question on the basis of the pleadings in the plaint. The
plaint must be read as a whole and as the plaintiff chose to
frame it. The plaintiff pleads that it carries on various
business activities. “ In the course of that business” , it decided

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to allot amounts as loans to others, for funds designed to
invest in developing business in their social community. The
defendant‟s husband approached it after encountering
financial adversity in operating his business. The plaintiff
agreed to lend him a sizeable sum, which was to be repaid in
its entirety, with interest at 15% per annum until repayment.


24. “Financier” is not defined in the 2015 Act. In
Ladymoon (supra) , the Oxford Universal Dictionary was
relied on where a financier includes “a capitalist concerned in
financial operations”, whose objects are “to secure an ample
revenue”. The Law Lexicon also defines a financier as “a
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capitalist”, and Black‟s Law Dictionary (4 Edn.) defines a
capitalist as including “one having an income from

investments”.
25. The respondent relies on those parts of the
definitions that speak of levying or managing public money.
That is the older and narrower sense of the word. It cannot
control the meaning of “financiers” in Section 2(1)(c)(i), where
the word is placed alongside merchants, bankers and traders
in a statute concerned with commercial disputes.

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26. The plaintiff is such a person. It allotted funds for
lending to others for their businesses, as part of its business
activities. In pursuance of that decision it lent Rs.
80,00,000/- to a businessman for his business, at 15%
interest per annum.
27. “Ordinary transactions” are the transactions
which a person normally or usually enters into, in the regular
course of the activity in which it is engaged. Read with the
four classes of persons named in Section 2(1)(c)(i), namely
merchants, bankers, financiers and traders, we hold that all
transactions of each of these four categories of persons,
entered into in the course of their respective activities, are
ordinary transactions within the meaning of Section 2(1)(c)(i).
The plaint pleads a decision, taken in the course of the
plaintiff‟s business, to lend to others for their businesses. The
loan in suit is an instance of that activity.
28. Charging of Interest was not incidental to such
loan. The borrower was obliged to repay the whole principal
and, until such repayment, to pay interest at 15% per annum.
That is the ordinary form of an interest-bearing loan. Interest
runs from the date of advance until the principal is repaid. It
does not mean that interest accrues only upon default. The

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rate was a commercial rate, interest was in fact paid for over
nine years. The claim in the suit itself includes Rs.
27,97,808/- as interest computed on those terms, and the
rate of interest is admitted. Interest was the very return for
which the funds were deployed.
29. The terms of the loan are also formal and certain.
The plaint pleads the principal, the dates of advance, the rate
and rests of interest, the obligation to repay the whole, and
interest until repayment. The terms were acted upon for
years.
30. In Ladymoon (supra) , it was observed that the
placement of the words “such as those relating to mercantile
documents” indicates that “only a dispute arising out of a
transaction between the named classes of persons which has
been formalised by way of a mercantile document will be a
„commercial dispute‟ under Section 2(1)(c)(i)”. This we are
unable to accept.
31. We are unable to read the clause in that way. The
operative words are “ordinary transactions of merchants,
bankers, financiers and traders”. The words “such as”
introduce examples of such transactions. They do not add a
further condition. The words that follow, “including

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enforcement and interpretation of such documents”, make
clear that disputes about the enforcement and interpretation
of mercantile documents are included. It would also cut down
the words “bankers” and “financiers”, since many of the
ordinary transactions of bankers and financiers, an advance
on a loan account, are not evidenced by any instrument that
would ordinarily be called a mercantile document. The clause
must be read as a whole, so that every word has a meaning in
its place.
32. The observation in Ladymoon (supra) , must also
be read in its context. There, the plaint pleaded only an oral
understanding and did not plead the existence of any
agreement at all. A sentence in a judgment cannot be read out
of its context, and a decision is an authority only for what it
actually decides. To the extent Ladymoon (supra) , is read as
making a mercantile document an indispensable condition for
every dispute under Section 2(1)(c)(i), we are unable to agree

with it.
33. In the case of Varanium Cloud (supra) , and
Glasswood Realty (P) Ltd. v. Chandravilas Kailashkumar
Kothari a Bombay High Court judgment being Civil W.P. No.
8393 of 2021, rest on the same reasoning. In Varanium

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Cloud (supra) , the plaintiff was in the business of leasing
services, and a single assignment of debt was held not to be
its ordinary business. In Glasswood Realty (P) Ltd. (supra) ,
“a solitary transaction of advancing loan, on friendly terms,
unlike a commercial lending with the prevailing market rate”
was held to fall short of an ordinary transaction of a financier.
34. Strict construction of Statute requires the Court
to satisfy itself that the dispute actually answers the
definition. It does not require the definition to be read more
narrowly than its words. Here, on the plaintiff‟s own pleading,

it gives the answer.
35. We hold that both conditions of Section 2(1)(c)(i)
are satisfied. The plaintiff is a financier, and the dispute
arises out of an ordinary transaction undertaken by it in that
capacity. The dispute in C.S. No. 150 of 2020 is a commercial
dispute within Section 2(1)(c)(i) of the 2015 Act, of a Specified
Value.
36. Section 7 of the 2015 Act is mandatory. A suit
relating to a commercial dispute of a Specified Value filed in
this Court “shall be heard and disposed of” by the Commercial
Division. A party is entitled to have a commercial dispute
decided under that regime and by the forum Parliament has

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designated. The suit was not heard by the Commercial
th
Division. The judgment dated 8 June, 2026, and the decree
passed on it on the regular side, cannot therefore be
sustained. The decree was passed on admission under Order
XII Rule 6 of the Code makes no difference. The question is of
the forum competent to pass any decree in the suit, not of the
merits of the claim. The respondent has not contended that
the decree could survive if the dispute is held to be
commercial.
th
37. The decree dated 8 June, 2026 is set aside. We
express no opinion on the merits of the claim The Commercial
Division will decide all these questions on their own merits,
uninfluenced by any observation in this judgment or in the
impugned judgment.
38. The plaint shall therefore be returned for
presentation before the Commercial Division of this court.
39. It will be open to the plaintiff to claim the benefit
for the time spent in prosecuting this suit on the regular side.
That claim will be decided on its own merits.
nd

40. The order of injunction dated 22 March, 2021 in
G.A. No. 1 of 2021 remained in force for over five years, until
that application was disposed of as infructuous by the

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impugned judgment. The question of forum was raised for the
first time in this appeal. The appellant has agreed before us to
nd
be bound by the interim order passed on 22 March, 2021, to

enable the plaintiff to approach the Commercial Division.
41. The dispute in C.S. No. 150 of 2020 is held to be
a “commercial dispute” within Section 2(1)(c)(i) of the
Commercial Courts Act, 2015, of a Specified Value. The
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judgment and decree dated 8 June, 2026, passed in G.A. No.
3 of 2025 in C.S. No. 150 of 2020, decreeing the suit and
disposing of G.A. No. 1 of 2021 and G.A. No. 5 of 2025, are set

aside.
42. The plaint in C.S. No. 150 of 2020 shall be
returned to the plaintiff under Order VII Rule 10 of the Code
of Civil Procedure, 1908, read with its Explanation, and Rule
9(2) of the High Court at Calcutta Commercial Courts Practice
Directions, 2021, for presentation before the Commercial
Division of this Court. The Department shall return the plaint,
with the endorsement required by Order VII Rule 10(2) of the
Code, within one week of the plaintiff applying for it.
nd

43. Injunction granted by order dated 22 March,
2021 in G,A. No.1 of 2021 continues for four weeks from the
date of this judgment.

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44. APD No. 8 of 2026 is allowed to the above
extent. G.A. No. 1 of 2026 and all other pending applications
if any stand disposed of.



(ARYAK DUTT, J.)
45. I Agree.

(DEBANGSU BASAK, J.)