Calcutta High Court: A review application was filed challenging against a judgment dated 24 April 2026, passed by the Division Bench wherein the Court had held that the decree under challenge was a nullity due to lack of jurisdiction of the trial Judge in trying and deciding a suit involving a commercial dispute within the meaning of the Commercial Courts Act, 2015. A Division Bench of Debangsu Basak and Shabbar Rashidi JJ., recalled its own earlier finding that the decree dated 9 January 2024 was a nullity, since the finding was incorrect, in view of Balaji Industrial Engg. Ltd. v. SAIL, Civil Appeal No. of 2026 [SLP (C) No.8111 of 2026] on 22-04-2026 and the appeal be transferred to the Commercial Division for hearing on merits and issued consequential directions to the Registry regarding transfer, renumbering and listing of the appeal.
A suit was instituted by Respondent 1 seeking recovery of possession and mesne profits. The suit culminated in a decree dated 9 January 2024. Being aggrieved by that decree, an appeal was preferred, which resulted in the judgment dated 24 April 2026 wherein the decree dated 9 January 2024 was declared to be a nullity solely on the jurisdictional issue. The Court had concluded that although the suit involved a commercial dispute, it had nevertheless been tried by the Non-Commercial Division after the establishment of the Commercial Division, rendering the decree without jurisdiction. The review petition was thereafter filed because, 2 days before the judgment under review was delivered, the Supreme Court had pronounced its decision in Balaji Industrial Engineering Ltd. That judgment reversed an earlier Division Bench decision of the Calcutta High Court which had also treated a decree as invalid for want of proper commercial roster.
The review applicant contended that the Supreme Court judgment constituted a binding precedent directly affecting the reasoning adopted in the judgment under review. However, when the Division Bench delivered its judgment on 24 April 2026, neither the Court nor the parties were aware of the Supreme Court’s decision and consequently it was not brought to the Court’s notice. The applicant therefore sought review on the ground that a binding precedent existing prior to the judgment had remained unnoticed.
The principal issue before the Court was whether failure to consider a binding Supreme Court judgment delivered prior to the judgment under review constituted a valid ground for exercising review jurisdiction.
The Court carefully distinguished the present case from State (NCT of Delhi) v. K.L. Rathi Steels Ltd., (2024) 7 SCC 315. It observed that K.L. Rathi Steels dealt with a situation where the precedent relied upon was rendered after the judgment sought to be reviewed. In contrast, the Supreme Court decision in Balaji Industrial Engg. Ltd. had been delivered on 22 April 2026, whereas the judgment under review was delivered only on 24 April 2026. Consequently, the precedent already existed at the time the Court decided the appeal, although it had escaped the attention of both the Court and counsel.
The Court reaffirmed the settled principle that non-consideration of an existing binding precedent constitutes a valid ground for review. Placing reliance on Tinkari Sen v. Dulal Chandra Das, 1966 SCC OnLine Cal 103 the Court observed that failure to notice a proposition of law that is well settled and beyond controversy itself furnishes a ground for review.
The Court also referred to Amarjit Kaur v. Harbhajan Singh, (2003) 10 SCC 228 where the Supreme Court held that failure to consider a binding Supreme Court judgment while deciding a review petition justified interference. Further reliance was placed upon BCCI v. Netaji Cricket Club, (2005) 4 SCC 741 wherein the Supreme Court explained that review jurisdiction is not confined merely to discovery of new evidence or obvious errors but also extends to cases involving mistakes of law or other sufficient reasons, including mistakes attributable either to the Court or to counsel. The expression “sufficient reason” under Order 47 Rule 1 CPC was held to possess wide amplitude.
Thus, the Court accepted that its earlier conclusion declaring the decree a nullity could not survive after the Supreme Court’s judgment, it nevertheless reaffirmed its earlier finding that the underlying dispute was indeed a commercial dispute within the meaning of Section 2(1)(c)(vii), Commercial Courts Act, since the property was being commercially exploited by the tenants at the time of institution of the suit.
The Court allowed the review application and recalled its earlier finding that the decree dated 9 January 2024 was a nullity on account of lack of jurisdiction. It was held that, in view of the Supreme Court decision, the appeal must be decided on its merits rather than dismissed solely on the jurisdictional objection.
[B.N. Nobbis v. Kamales Malik, RVWO/18/2026 IA No. GA/1/2026, decided on 30-6-2026]
Advocates who appeared in this case:
For the Petitioner: Mr. Mainak Bose, Sr. Adv. Mr. Shuvasish Sengupta, Adv. Mr. Anurag Bagaria, Adv. Ms. Pallavi Sengupta, Adv.
For Respondent no.1: Mr. Kushal Chatterjee, Adv. Mr. Arindam Paul, Adv. Ms. Debarati Das, Adv.
For 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 Respondent no.7: Mr. A. P. Gomes, Adv.
For the Respondent no.11: Mr. Subhendu Bandopadhyay, Adv. Mr. Saikat Pal
