Application Before Commercial Division Cannot Be Rejected Merely For Mentioning Wrong Provision Under Which It Has Been Preferred: Calcutta HC

The Court was hearing an application for final judgment and decree filed under the provisions of Chapter XIIIA of the Calcutta High Court Original Side Rules. The said application was filed in connection with a suit which was filed before the Court's Ordinary Original Civil jurisdiction but was subsequently transferred to the Court's Commercial Division. Chapter XIIIA of the Calcutta High Court Original Side Rules governs summary judgments in suits for recovery of debts, liquidated damages or immovable property.

Counsels for the defendant raised preliminary objection on maintainability of the application on the ground that Chapter XIIIA of the Original Side Rules did not apply to proceedings before the Court's Commercial Division. Counsel for the defendant argued that as the plaintiff's applicant had prayed for decree under Chapter XIIIA of the Original Side Rules which was not applicable before the Commercial Court, the instant application ought to be dismissed.

Upon hearing the rival contentions of the parties, the Single Judge Bench of Justice Krishna Rao observed on merits that the instant application under Chapter XIIIA of the Original Side Rules was filed during pendency of the suit before the High Court's Ordinary Original Civil Jurisdiction and that as the instant application was also transferred along with the suit to the Commercial Division, the plaintiff had accordingly prayed for summary judgment under Chapter XIIIA of the Original Side Rules.

It relied on P.K. Palanisamy v. N. Arumugham & Anr., where the Supreme Court held that only because a wrong provision was mentioned by the appellant, the same by itself would not be a ground to hold that the application was not maintainable; mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor.

In view of the above, this Court held that the point of maintainability raised by the defendant has no leg to stand and thus rejected it.

The said ruling is effectively applicable within the distinguishable factual matrix that an application filed during a suit's pendency before the Court's non-Commercial Division will not be rejected upon its transfer to the Commercial Division on the sole ground that the application during its pendency before the non-Commercial Division referenced a provision of law which thereafter did not apply to proceedings before the Commercial Division. The Court accordingly deemed the instant application as maintainable.

Case: Anchor Investments Private Limited v. TCI Finance Limited, CS 133 of 2019

Date: 08.12.2022

Citation: 2022 LiveLaw (Cal) 359  

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