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2024 DIGILAW 472 (CAL)

Harish Chandra Jaiswal v. Ram Chandra Shaw

2024-03-05

KRISHNA RAO

body2024
JUDGMENT : Krishna Rao, J. 1. The defendant nos. 1 and 2 have filed the present application being GA No. 3 of 2023 praying for rejection of plaint. The defendant nos. 1 and 2 have contended that the suit filed by the plaintiff is commercial in nature and thus this Court is not having jurisdiction to try the suit. The defendant nos. 1 and 2 says that initially the plaintiff has let out one shop room to M/s. Prakash Brothers being represented by two partners, namely, Laxmi Prasad Gupta and Om Prakash Gupta by entering into an agreement. The said firm defaulted in paying rent and accordingly the predecessors-in-interest of the plaintiff and the defendant nos. 3, 4 and 5 have filed the suit before the City Civil Court at Calcutta being Ejectment Suit No. 476 of 1987 which was subsequently renumbered as the Ejectment Suit No. 408 of 2002. On 7th April, 2008, the Learned 4th Bench of City Civil Court at Calcutta passed decree in favour of the plaintiff and subsequently in an execution case through the bailiff of the Court, the possession was handed over to the plaintiff on 26th October, 2009 by the said firm. 2. Learned Counsel for the defendant nos. 1 and 2 submits that it is the admitted case of the plaintiff that on 9th June, 2019, the plaintiff came to know that the defendant nos. 1 and 2 have occupied the suit premises and the suit premises is a shop room. He submits that the defendant nos. 1 and 2 are in occupation of the suit shop room in terms of the earlier agreement entered between the plaintiff and M/s. Prakash Brothers. 3. Mr. Meghnad Dutta, Learned Advocate representing the defendant nos. 1 and 2 submitted that, it is established that the dispute between the plaintiff and the defendant nos. 1 and 2 is commercial in nature and thus this Court is not having jurisdiction to try the suit. 4. Mr. Dutta, Learned Counsel appearing for the defendant nos. 1 and 2 had relied upon the judgment reported in (2020) 15 SCC 585 (Ambalal Sarabhai Enterprises Limited vs. K.S. Infraspace LLP & Anr.) and submitted that a dispute relating to immovable property per se may not be a commercial dispute, but it becomes a commercial dispute, if it falls under sub-clause (vii) of Section 2(1)(c) of the Commercial Courts Act. He submits that in the present case, the genesis of the case starts from the agreement entered by the plaintiff with M/s. Prakash Brothers and admittedly the premises is a shop room and thus the case of the plaintiff is covered under Section 2(1)(c)(vii) of the Commercial Courts Act, 2015. 5. Mr. Dutta further relied upon the judgment passed by the Coordinate Bench of this Court in CO No. 759 of 2021 (Deepak Polymers Private Limited vs. Anchor Investments Private Limited) dated 24th June, 2021 and submitted that 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 agreement or for the 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. 6. Mr. Dutta submits that the suit filed by the plaintiff is commercial in nature and as such this Court is not having jurisdiction thus the suit is liable to be dismissed. 7. Per contra, Learned Counsel for the plaintiff submits that it is the specific case of the plaintiff that initially the plaintiff has let out the premises, M/s. Prakash Brothers being represented by its two partners, namely, Laxmi Prasad Gupta and Om Prakash Gupta at a monthly rent of Rs.33/-per month. The said tenants defaulted in paying the monthly rent and accordingly the predecessors-in-interest of the plaintiff as well as the defendant nos. 3 to 5 have filed the suit before the City Civil Court at Calcutta for their eviction and accordingly by on 7th April, 2008, a decree was passed for eviction of the said tenants. 8. Mr. S.E. Huda, Learned Advocate representing the plaintiff submits that the said judgment debtors failed to vacate the suit premises even after the decree passed by the City Civil Court, the predecessors-in-interest of the plaintiff have initiated the execution proceedings against the said judgment debtors and accordingly through the bailiff of the Court, the said judgment debtors were evicted from the premises and the plaintiff had taken possession of the suit premises. 9. Ms. Huda submits that the defendant nos. 1 and 2 having no connection with regard to the two earlier tenants. Mr. 9. Ms. Huda submits that the defendant nos. 1 and 2 having no connection with regard to the two earlier tenants. Mr. Huda submits that it is the specific case of the plaintiff that in the month of October, 2009, the suit property was handed over to the plaintiff through the bailiff in terms of the decree passed by the City Civil Court and since then the property was in possession of the plaintiff. 10. It is the specific case of the plaintiff that on 30th June, 2019 when the plaintiff visited the adjoining shop room, came to know that the suit property was completely broken and the defendant nos. 1 and 2 have illegally occupied the suit premises. Mr. Huda submits that the defendant nos. 1 and 2 have occupied the suit property illegally and accordingly the plaintiff has also initiated a criminal proceeding against the defendant nos. 1 and 2. He submits that the defendant nos. 1 and 2 are the rank trespassers with respect to the suit property and as such the submission made by the Counsel for the defendant nos. 1 and 2 that there subsisting an agreement with respect to the suit property with the plaintiff and the defendant nos. 1 and 2 is not correct and the defendant nos. 1 and 2 have not produced any documents to establish the relationship between the plaintiff and the defendant nos. 1 and 2 and the landlord and the tenant. 11. Mr. Huda submits that the plaintiff has filed the suit for eviction of the defendant nos. 1 and 2 only on the ground that the defendant nos. 1 and 2 have illegally occupied the suit premises and are trespassers over the suit property. He submits that the suit is not of commercial in nature and this Court is having jurisdiction to try the suit. 12. Mr. Huda also relied upon the judgment passed by the Coordinate Bench of this Court in CO No. 759 of 2021 (Deepak Polymers Private Limited vs. Anchor Investments Private Limited ) dated 24th June, 2021 and submitted that the pre-conditions of the applicability of Section 2(1)(c)(vii), the defendant nos. 1 and 2 failed to satisfy that there is any agreement between the plaintiff and the defendant nos. 1 and 2 failed to satisfy that there is any agreement between the plaintiff and the defendant nos. 1 and 2 with respect to the business of the suit property and as such the Commercial Courts Act, 2015, is not applicable in the present suit. 13. Heard the Learned Counsel for the respective parties, perused the materials on record and the judgment relied upon by the parties. 14. Section 2(1)(c)(vii) of the Commercial Courts Act, 2015 reads as follows : “2.(1)(c) Definitions.—(1) In this Act, unless the context otherwise requires,–– (vii) agreements relating to immovable property used exclusively in trade or commerce.” 15. As per the plaint case, on 30th June, 2019, the plaintiff came to know that the defendant nos. 1 and 2 have illegally occupied the suit premises without the permission of the plaintiff or the other co-sharers of the suit property. In the plaint, the plaintiff has specifically made an averment that the defendant nos. 1 and 2 are the rank trespassers in respect of the suit property and are in illegal occupation of the said premises without the consent of the plaintiff and the defendant nos. 3 to 5. 16. As per the case of the defendant nos. 1 and 2, the genesis of the case is the agreement entered between the plaintiff and the earlier tenants i.e. M/s. Prakash Brothers but the defendant nos. 1 and 2 have not produced any document to establish that there is any agreement entered between the plaintiff and the defendant nos. 1 and 2 directly or indirectly. The defendant nos. 1 and 2 fails to produce the documents i.e. the agreement between the plaintiff and M/s. Prakash Brothers that is the earlier tenants, to establish that the defendant nos. 1 and 2 are connected with the said agreements and are in occupation of the suit premises in terms of the agreement which still subsisting. 17. The Judgment relied by the defendants in the case of Ambalal Sarabhai Enterprises Limited (supra), the Hon’ble Supreme Court held that : “37. A dispute relating to immovable property per se may not be a commercial dispute. But it becomes a commercial dispute, if it falls under sub-clause (vii) of Section 2(1)(c) of the Act viz. “the agreements relating to immovable property used exclusively in trade or commerce”. The words “used exclusively in trade or commerce” are to be interpreted purposefully. A dispute relating to immovable property per se may not be a commercial dispute. But it becomes a commercial dispute, if it falls under sub-clause (vii) of Section 2(1)(c) of the Act viz. “the agreements relating to immovable property used exclusively in trade or commerce”. The words “used exclusively in trade or commerce” are to be interpreted purposefully. The word “used” denotes “actually used” and it cannot be either “ready for use” or “likely to be used” or “to be used”. It should be “actually used”. Such a wide interpretation would defeat the objects of the Act and the fast tracking procedure discussed above.” 18. In the present case, the defendant nos. 1 and 2 have not produced any document to show that there is any relationship between the plaintiff and the defendant nos. 1 and 2 with regard to any business and the defendant nos. 1 and 2 are using the suit property exclusively in the Trade of Commerce in terms of the agreement between the plaintiff and the defendant nos. 1 and 2. 19. The Judgment in the case of Deepak Polymers Private Limited (supra), the Hon’ble Coordinate Bench of this Court held that : “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.” 20. In the present case, the defendant nos. 1 and 2 have not produced any document or the agreement to established their contention. It is the specific case of the plaintiff that the defendant nos. 1 and 2 have illegally occupied the premises and the defendant nos. 1 and 2 are the trespassers in respect of the suit property. 21. Considering the facts and circumstances mentioned hereinabove this Court finds that the defendant nos. 1 and 2 have failed to produce any document to establish that there is any agreement entered between the plaintiff and the defendant nos. 1 and 2 with regard to any commercial activities. On the other hand, it is the case of the plaintiff that the defendant nos. 1 and 2 have failed to produce any document to establish that there is any agreement entered between the plaintiff and the defendant nos. 1 and 2 with regard to any commercial activities. On the other hand, it is the case of the plaintiff that the defendant nos. 1 and 2 have illegally occupied the premises and are in the illegal occupation of the premises. The dispute between the plaintiff and the defendant nos. 1 and 2 is relating to the immovable property is not connected with any commercial dispute and as such the application filed by the defendant nos. 1 and 2 is misconceived and is liable to be dismissed. 22. In view of the above, GA No. 3 of 2023 is dismissed.