Calcutta High Court: While deciding an appeal involving the order of transfer made by a Civil Court to the Commercial Court in a district, a division bench comprising of Biswaroop Chowdhury and I.P. Mukerji,* JJ., held that when a civil court, under Section 15 of the Commercial Courts Act, 2015, decides on the transfer, the court functions as an ordinary civil court, not a commercial court under the Act. The Court asserted its jurisdiction to entertain the appeal but referred the same to the appropriate bench having jurisdiction over appeals from orders passed by a regular court of civil jurisdiction.
Brief Facts
The instant matter involves an appeal concerning an order of transfer made by a Civil Court to the Commercial Court within a district. The appellant contended that the impugned order falls under Rule 10 of Order VII of the Civil Procedure Code, 1908 (CPC) and is appealable under Order XLIII Rule (1)(a) read with Section 104 of the CPC. The respondent argued that orders of transfer are not appealable under Sections 13 or 15 of the Commercial Courts Act, 2015. It was contended that only if the transfer is refused can an application be made under Section 15(5) to the High Court.
Moot Point
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Whether an order of transfer made by a civil court under Section 15 of the Commercial Courts Act, 2015 is appealable under Section 13 or 15 of the Act?
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Whether Order XLIII Rule (1)(a) read with Section 104 of the CPC is applicable to such orders?
Law Point
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Section 15(2) of the Commercial Courts Act, 2015 mandates the transfer of suits and applications related to commercial disputes pending in any civil court in the area where a commercial court is constituted.
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Section 15(5) allows parties to approach the Commercial Appellate Division of the High Court if the civil court refuses to transfer the suit, seeking a transfer.
Court’s Assessment
The Court distinguishes between the administrative and judicial functions of Sections 15(1) to 15(4) related to the transfer of suits and Section 15(5) dealing with appeals against refusal of transfer by the civil court. The Court stated that Section 13 deals specifically with appeals from commercial courts, while Section 15 operates in a distinct field.
The Court made reference to Sarit Kumar Ghosh v. Biswanath Banik, 2023 SCC OnLine Cal 2615, emphasising that appeals lie only when a civil court refuses to transfer a suit to the commercial court. The Court agrees with the Sarit Kumar Ghosh’s (Supra) interpretation of Section 15, highlighting two functions, administrative and judicial. The Court stated that the civil court acts administratively when there is no dispute about commercial nature; if a dispute arises, it acts judicially.
The Court stated that when a civil court decides that a matter is commercial and should be transferred, it functions as a civil court, and the orders made by the civil court in such matters are not appealable under Section 13 of the Commercial Courts Act. The Court held that the appealability of such orders is to be tested under Order 43 read with Section 104 of the CPC and it is found to be appealable under Order 43(1)(a).
The Court viewed the impugned order as returning the plaint to be presented before the proper court under Order VII Rule 10, making it appealable under Order XLIII Rule (1)(a) read with Section 104 of the CPC. The Court held that it has jurisdiction to entertain the appeal but refers it to the bench having the authority to hear first appeals from orders passed by a regular court of civil jurisdiction.
Court’s Decision
The Court partly disposes of the appeal by determining its maintainability under Order 43(1)(a) read with Section 104 of the CPC. The Court extends the interim order until 29-02-2024 or further order, whichever is earlier.
[Prasad Ecostructure LLP. v. City Devcon (P) Ltd., 2024 SCC OnLine Cal 494, order dated 19-01-2024]
*Judgment by Justice I.P. Mukerji
Advocates who appeared in this case :
Mr. Ashok Kumar Banerjee, Sr. Adv., Mr. Ashim Kumar Routh, Ms. Manishka Dhar and Ms. Ananya Mondal, Counsel for the Appellant
Mr. Saptangsu Basu, Sr. Adv., Mr. Ayan Banerjee, Mr. Rajesh Upadhyay, Ms. Debasree Dhamali, Ms. Riya Ghosh and Ms. Debjani Ghosh, Counsel for the Opposite Party
