Calcutta High Court
Jaspal Singh Chandhok & Ors vs Sandeep Poddar & Anr on 17 February, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No. GA 12 of 2022
In
CS 214 of 2010
Jaspal Singh Chandhok & Ors.
Vs.
Sandeep Poddar & Anr.
Mr. Swatarup Banerjee
...for the plaintiff no. 1.
Mr. Haradhan Banerjee
Ms. Somali Mukhopadhyay
Ms. Tithi Paul
...for the plaintiff nos. 2 to 5.
Mr. Sakya Sen
Mr. Rohit Banerjee
Mr. Aditya Mondal
Mr. Diptangshu Kar
...for the defendants.
Heard on : 24.11.2022, 05.12.2022, 13.12.2022, 11.01.2023
& 30.01.2023
Judgment on : 17.02.2023
2
Krishna Rao, J.:
Plaintiffs have filed the instant application under Section 15 of the Commercial Courts Act, 2015 for transfer of suit being C.S. No. 214 of 2010 from this Court to Commercial Division.
The plaintiffs has initially filed the suit in the year 2010 under the West Bengal Premises Tenancy Act, 1997 praying for following reliefs :
"a) A decree for recovery of khas possession of the suit premises being premises No. 5, Prafulla Sarkar Street, (previously known as Sootarkin Street) particulars of which is given in the Schedule by evicting the defendants therefrom;
b) A decree for outstanding rent and interest thereon aggregating to Rs. 2,12,413/- (Rupees Two lacs twelve thousand four hundred thirteen) only;
c) A decree for payment of outstanding Kolkata Municipal Corporation Tax to Rs. 8,01,759/- (Rupees Eight lacs one thousand seven hundred fiftynine) only:
d) A decree for mesne profit @ Rs. 15,000/- per diem for the period from 1st May, 2010 till the date of recovery of khas possession of the suit premises particularized in the schedule given hereunder;
e) A decree for damages amounting to Rs. 25,00,000/- as fully stated in paragraph No. 31 herein;
f) Alternatively, and enquiry for damages and a decree be passed for such sum or sums as be found thereon;
g) Receiver;
h) Injunction;"
After filing of the written statement by the defendants, the plaintiffs have made amendment by incorporating paragraph 31A as well as prayer C1 of the plaint by incorporating the ground of Transfer of Property Act, 1887. Amended paragraph 31A and prayer C1 reads as follows : 3
"31A The plaintiff alternatively states that the said lease deed dated 4th October, 1951 expired by efflux of time long ago, nevertheless the erstwhile lessee Madan Lal Poddar, (Since deceased) intentionally and with due knowledge of the said conditions of the said lease, did not dislodge, remove or take away any or all the erections, materials, sheds set up or created or brought upon the suit premises within the stipulated period of three months after the expiry of said lease or even thereafter and by reason of payment and acceptance of rent monthly in respect of land only and after expiry of the said lease period the said erstwhile lessee remained monthly tenant by payment and acceptance of rent for vacant land only government under the Transfer of Property Act. The notice of Ejectment was duly served upon the defendant but the defendants did not vacate the vacant land being the suit premises by removing structure therefrom. That by virtue of deeds of transfer executed and registered in favour of the plaintiff by the ten shareholders of the suit premises the plaintiff has became fully entitled to evict the defendants from the suit premises. The defendants have got no right to occupy the suit premises after the determination of monthly tenancy by notice to quit in respect of the bare land in question. The defendants despite receipt of the notice of ejectment neither removed the structure or building nor handed over the vacant land unto the plaintiff hence the plaintiff is entitled to have ejectment decree against the defendants."
C1) A decree for payment of Rs. 28,827/- (Rupees Twenty eight thousand eight hundred twenty seven) only paid by the plaintiff to Kolkata Municipal Corporation on behalf of the defendants in respect of the "suit premises". Mr. Haradhan Banerjee, Learned Senior Advoate along with Mr. Swatarup Banerjee, Learned Advocate representing the plaintiffs submits that it is the specific case of the plaintiffs that on 12th August, 1988, the heirs of Nirode Bihari Lahiri, since deceased lodged a complaint to the police station stating that the defendants have forcefully broke open the shop room of the Lahiries and started illegal construction in the suit premises. 4
Mr. Banerjee submits that defendants have made illegal construction on the area occupied by Automotive Rubber Company and it is crystal clear that the suit property at the time of institution of the suit was used for commercial purposes as shop room.
Mr. Banerjee further submits that the defendants have also admitted that the defendants were using the suit property for their family business and also admitted the fact that the suit property was in use for commercial purpose.
Mr. Banerjee submits that even in the lease deed by virtue of which the predecessor of the defendants were inducted in the suit property is for business or any trade or business ancillary thereto and for factory, repairing on other workshop and any other business.
Mr. Banerjee relied upon the documents, disclosed by the defendants which is the trade license in respect of the suit premises which also proves that the suit premises is used for the Commercial purpose. Mr. Banerjee relied upon following judgments:
"I. 2020 Vol. 5 SCC Page No. 410 (Ambalal Sarabhai Enterprises Limited -vs- K.S. Infraspace LLP Ltd.); II. 2021 SCC Online Calcutta 2724 (KB Consortium -vs-
Zenith Timber Products Private Limited & Anr.); III. AIR 2022 Calcutta Page No. 25 (Bhagabati Prasada Jhunjhunwala (HUF) & Ors. -vs- Uco Bank & Anr.) IV. 2021 SCC Online Calcutta Page No. 35 (Swadha Builders -vs- Nabarun Bhattacharjee & Ors.) V. 1995 SCC Online Delhi Page No. 886 (M/s National Building Construction Corporation -vs- M/s. Oriental Structural Engineer Private Limited) 5 VI. Unreported Case - (Maharshi Commerce Limited -vs-
Rajiv R. Balani & Ors.) pronounced on 10.11.2022;."
Per Contra, Mr. Sakya Sen, Learned Counsel for the defendants submits that there is no averments in the plaint that the property is used for commercial purposes and there is no averments about commercial acts.
Mr. Sen submits that the Mr. Chandhok sold the share and he cannot be a plaintiff. The plaintiff has amended the plaint twice but at the time of amendment also, the plaintiff has not made any averment about any commercial act in the suit property.
Mr. Sen submits that the nature of the suit is to be decided from the averment of the plaint and not from the written statement. The documents which the plaintiff relies upon has not been disclosed by the plaintiff, the said document is disclosed by the defendant and thus the plaintiff cannot rely upon the said document.
Mr. Sen further submits that the suit was filed in the year, 2010 and the Commercial Courts Act came into force in the year 2015 but the plaintiff has filed the instant application in the year 2022 i.e. after the period of 7 years and in the mean time, the plaintiff had made amendment in the plaint but had not made any averment of Commercial transaction.
Mr. Sen submits that it is settled law that while deciding the plea of the plaintiff that the suit is of Commercial in nature, this court must only look into the plaint and not the written statement. 6
Heard the learned counsels for the respective parties, perused the materials available on record and the judgments relied by the plaintiff.
The suit was filed in the year 2010 and at the time of filing of the suit, no commercial courts were established. Commercial Courts Act, 2015 came into force with effect from 23rd October, 2015.
Initially one Nirode Bihari Lahiri had purchased the suit property from Calcutta Improvement Trust subject leasehold right of M/s Issac Brothers but on 4th October, 1951, the land was surrendered to Nirode Bihari Lahiri. Mr. Lahiri on the same day had executed a registered Deed of Lease in favour of Madan Lal Poddar (since deceased), the predecessor-in-interest of the defendants for a period of 15 years with the option of renewal for a further period of 5 years. The tenure of leased deed expired by efflux of time.
Nirode Behari Lahiri died on 18th October, 1968 leaving behind seven sons and five daughters and each heirs have inherited 1/12th undivided equal shares. There are several litigation with respect of the properties left behind by the deceased Nirode Behari Lahiri.
The plaintiff no. 1 claims that the plaintiff no. 1 had purchased 10/12th share of the property by way of ten several deeds of conveyance dt. 15th December, 1990 from the legal representatives of Nirode Bihari Lahiri and he became the owner of the suit property.
By way of amendment in para 32A, it was brought to the notice of this Court that the plaintiffs nos. 2 to 5 have purchased the undivided 10/12th share of the suit premises by way of registered deed of conveyance dt. 23rd 7 December, 2020 from the plaintiff no. 1. It was also brought to the notice of this Court that on 25th January, 2021, the plaintiff no. 1 by another deed of conveyance purchased 2/12th undivided share of the said property from Uma Poddar, the heir of late Ashok Poddar.
There is no averment in the plaint that there was any lease or tenancy agreement was entered between the plaintiff and the defendant. The plaintiff has relied upon the lease deed of Nirode Bihari Lahiri and Madan Lal Poddar which admittedly expired due to efflux of time. Admittedly, there is no direct agreement between the plaintiffs and the defendants.
Section 2(1)(c)(vii) and Section 15 of the Commercial Courts Acts, 2015 reads as follows :
"Section 2- Definitions.
(1) In this Act, unless the context otherwise requires],
(c) "commercial dispute" means a dispute arising out of-
(vii) agreements relating to immovable property used exclusively in trade or commerce;."
"Section 15- Transfer of pending cases.- (1) All suits and applications, including applications under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of a Specified Value pending in a High Court where a Commercial Division has been constituted, shall be transferred to the Commercial Division.
(2) All suits and applications, including applications under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of a Specified Value pending in any civil court in any district or area in respect of which a Commercial Court has been constituted, shall be transferred to such Commercial Court:8
Provided that no suit or application where the final judgment has been reserved by the Court prior to the constitution of the Commercial Division or the Commercial Court shall be transferred either under sub-section (1) or sub-section (2).
(3) Where any suit or application, including an application under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of Specified Value shall stand transferred to the Commercial Division or Commercial Court under sub-section (1) or sub-section (2), the provisions of this Act shall apply to those procedures that were not complete at the time of transfer. (4) The Commercial Division or Commercial Court, as the case may be, may hold case management hearings in respect of such transferred suit or application in order to prescribe new timelines or issue such further directions as may be necessary for a speedy and efficacious disposal of such suit or application in accordance of the Code of Civil Procedure, 1908 (5 of 1908):
Provided that the proviso to sub-rule (1) of Rule 1 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to such transferred suit or application and the court may, in its discretion, prescribe a new time period within which the written statement shall be filed.
(5) In the event that such suit or application is not transferred in the manner specified in sub-section (1), sub-
section (2) or sub-section (3), the Commercial Appellate Division of the High Court may, on the application of any of the parties to the suit, withdraw such suit or application from the court before which it is pending and transfer the same for trial or disposal to the Commercial Division or Commercial Court, as the case may be, having territorial jurisdiction over such suit, and such order of transfer shall be final and binding."
After filing of the written statement, the plaintiff has amended the plaint by incorporating paragraph 31A and prayer in the plaint and incorporated the ground of Transfer of Property Act, 1882. 9
Now, the primary question is whether suit is for recovery of possession of immovable property due to efflux of time under Section 111(a) of Transfer of Property Act pertains to "Commercial Dispute" under the Commercial Courts Act, 2015.
The main argument of the Counsel for the plaintiff is that the plaintiff has specifically averred in the plaint that the defendants are in occupation of the shop room and running their business. It is also the case of the plaintiff that the defendants have also admitted the said fact in the written statement.
In the Judgment passed by the Coordinate Bench of this Court in the case of Deepak Polymers Limited -versus- Anchor Investments Private Limited (C.O. No. 759 of 2021) dt. 24th June, 2021, the Court held that :
"27. Upon hearing the rival contention of the parties and perusing their respective written notes of arguments, as well as on a plain and meaningful reading of the plaints of the aforesaid suits in their entirety, it is crystal-clear that the suits have been filed primarily for recovery of possession of immovable properties under Section 106 of the Transfer of Property Act, 1882. In all the plaints, it has been pleaded that notices were given under Section 106, which the defendants failed to comply with even after the expiry of fifteen (15) 11 days thereafter. Hence, the first ingredient of the suits which stares in the face is that the suits are based on the statutory right conferred by Section 106 of the 1882 Act. The cause of action in each of the suits clearly arises by virtue of the rights conferred by Section 106. In the event the suits were for termination of lease on the ground of forfeiture for violation of any of the clauses of the lease agreements and/or for specific performance of the agreements or suits of like nature, the suits would definitely come within the purview of "commercial dispute" as defined in Section 2(1)(c) of the Commercial Courts Act, 2015.10
28. A plain reading of the said provision indicates that Section 2(1)(c) defines "commercial dispute" to be a dispute "arising out of" the subsequent sub-clauses, including several aspects. Sub-clause (vii) is the only basis of argument of the plaintiffs/opposite parties. The said sub- clause stipulates that a dispute arising out of "agreements relating to immovable property used exclusively in trade or commerce" come within the ambit of "commercial dispute".
The judgments cited by the plaintiffs are distinguishable on their respective facts with the present case. Most of the cases, as mentioned above, pertain directly to agreements from various perspectives. Suits for specific performance of agreements, suits relating renewal clauses in agreements and other similar contexts gave rise to the proceedings which culminated in the said reports. Thus, the proceedings were "arising out of" the respective agreements. 12
29. What has been highlighted in the judgments placed by the opposite parties is that all suits arising out of agreements relating to immovable property used exclusively in trade or commerce, including eviction suits, would come within the ambit of the expression "commercial dispute" and shall be decided by the Commercial Courts in the event of the pecuniary jurisdiction, on the basis of valuation of the suits, being above the stipulated amount.
30. However, the cardinal question which has not been addressed but is pivotal to the present adjudication is the expression "dispute" which precedes the expression "arising out of" as appearing in Section 2(1)(c) of the 2015 Act. Reading sub-clause (vii) in conjunction with the starting words of Clause (c), it is seen that the expression "agreements relating to immovable property...." qualifies the term "dispute" arising out of such agreements.
31. A "dispute" can only be determined by the cause of action of the suit and not the preceding backdrop. Even if Section 106 of the Transfer of Property Act deals with termination of the jural relationship of lessor and lessee, pre-supposing a prior lease agreement, the bundle of facts comprising the cause of action of the suit is the sole determinant of the "dispute" involved in the suit.
32. In the event the suits, in the present case, had been filed for recovery of possession in respect of immovable property on the ground of forfeiture for contravention of any of the terms and conditions of the 13 respective 11 agreements-in-question, it might have been argued that the suits pertains to disputes "arising out of" such agreements.
33. However, the dispute itself, in the present case, arises out of refusal by the defendants to comply with the notices issued by the lessor under Section 106 of the Transfer of Property Act, 1882, which is based on a statutory right independent and irrespective of any clause of the lease agreements.
34. Hence, the suits squarely arise out of a statutory right conferred by Section 106 of the Transfer of Property Act, having no direct nexus with the lease agreements in respect of the immovable properties concerned. Thus, the pre-condition of the applicability of Section 2(1)(c)(vii), that is, the emanation of the dispute out of the lease agreement, is not satisfied in the present suits. Thus, the secondary question as to whether the immovable properties are used exclusively in trade or commerce, pales into insignificance."
In the present case, though the plaintiff has issued notice under the West Bengal Premises Tenancy Act, 1997 on 24th March, 2010 but in the said notice also the plaintiffs have not mentioned about the date of any lease deed or rent agreement. Subsequently, the plaintiffs have amended the plaint by invoking the provisions of Transfer of Property Act. The plaintiffs have prayed for recovery of khas possession of the suit premises along with mesne profit and outstanding monthly rent with interest.
The judgments relied by the plaintiffs are distinguishable with respect of the present case. In all the cases referred by the plaintiffs relates to direct agreements between the parties. In the present case, there is no such agreement between the plaintiff and the defendant. The lease deed relied by the plaintiff has also expired due to efflux of time and in the said lease deed also, the plaintiffs are not the party.
12
The order passed by the Coordinate Bench of this Court in the case of Deepak Polymers Private Limited (Supra), which the Hon'ble Supreme Court has also affirmed the said order in Civil Appeal No. 4659 of 2021, the same is squarely applicable in the instant case as there is no agreement and the agreement/lease deed relied by the plaintiff determined due to efflux of time.
In view of the above, this Court is of the view that the suit filed by the plaintiff is not covered under Section 2(1)(c)(vii) of the Commercial Courts Act, 2015.
G.A No. 12 of 2022 is thus dismissed.
(Krishna Rao, J.)