E. D. Enterprises Private Limited vs Kaiser Begum And Anr
2021 Latest Caselaw 691 Cal/2

OD-1
                             ORDER SHEET
                    IN THE HIGH COURT AT CALCUTTA
                             ORIGINAL SIDE

                                ALP/3/2021

                   E. D. ENTERPRISES PRIVATE LIMITED
                                 Versus
                         KAISER BEGUM AND ANR.


  BEFORE:
  The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
  Date : 9th September, 2021.

                                                     Appearance:
                                             Mr. Debdut Mukherjee, Adv.
                                             Mr. M. Mukherjee, Adv.
                                             Ms. Priyanka Sharma, Adv.

                                             Mr. Arik Banerjee, Adv.
                                             Mr. Arijit Roy, Adv.
                                             Mr. C. K. Saha, Adv.



The Court: The petitioner seeks issuance of a Rule calling upon the

respondents to show cause as to why an order should not be passed

removing Title Suit No. 571 of 2020 pending before the City Civil Court at

Calcutta and transfer the same to this Court in its Extraordinary

Original Civil Jurisdiction for trial and determination.

C.S. 136 of 2020 was filed by the petitioner against the respondents

on 3rd November, 2020, for a decree for vacant and khas possession of a

demarcated portion of a premises located at 42A Shakespeare Sarani,

Kolkata and for damages or mesne profit against the defendant no.1. The

suit which the petitioner seeks to transfer was filed by the respondent

against the petitioner on 10th August, 2020, in the City Civil Court at

Calcutta for a decree of declaration that the respondent is a monthly

tenant and has subsisting tenancy right in the suit premises and for a

decree of perpetual injunction restraining the petitioners from interfering

with the peaceful possession of the respondent in respect of the suit

premises.

The other proceedings filed by the parties herein in their respective

suits include an application for temporary injunction filed by the

respondents in their suit before the City Civil Court wherein the

petitioner was restrained from disturbing the peaceful possession of the

respondent in the suit property. In the present suit, the petitioner has

filed for judgment on admissions and for an injunction restraining the

respondents from creating third party rights in the suit property wherein

th an interim injunction was passed on 19 November, 2020 against the

respondents from creating third party rights in the demarcated area of

the suit property. The respondent no.1 thereafter filed an application for

rejection of the plaint under Order VII Rule 11 of The Code of Civil

th Procedure which was disposed of by an order dated 7 April, 2021,

returning the plaint for presentation before the Commercial Division and

for treating C.S. No. 136 of 2020 as disposed of.

The petitioner thereafter instituted C.S. No. 105 of 2021 before the

Commercial Division of this Court praying for a decree for vacant, khas

and peaceful possession of the suit premises and other consequential

reliefs.

According to learned counsel for the petitioner, the suit pending

before the City Civil Court should be transferred since the parties are the

same and both the proceedings relate to the same suit property whereby

common questions of law and fact would appear. Counsel submits that

both the suits should be heard by this Court to avoid overlapping

decisions and for the purpose of saving litigation costs.

Learned counsel for the respondents opposes the prayer for transfer

by relying on a judgment passed by a learned Single Judge of this Court

in Deepak Polymers Pvt. Ltd. vs. Anchor Investments Pvt. Ltd.; C.O. 759 of

2021 wherein it was held that an eviction suit for recovery of immovable

property is not a commercial dispute under The Commercial Courts Act,

2015. A Special Leave Petition filed from the said judgment was

dismissed by the Supreme Court. According to counsel, the present suit

is also a suit for eviction based on a notice issued by the petitioner under

section 106 of The Transfer of Property Act, 1882 and would hence be

covered by the judgment of the co-ordinate Bench which has been relied

upon. Counsel also submits that since the existing suit filed by the

petitioner is in the Commercial Division, no useful purpose would be

served by transferring the suit before the City Civil Court to the

extraordinary civil jurisdiction of this Court. It is also submitted that

section 15 of the 2015 Act does not provide for transfer of suits from

subordinate courts to the Commercial Division of this Court.

Upon hearing learned counsel appearing for the parties before this

Court, it appears that the main hurdle to the relief sought for by the

petitioner is the judgment of a learned Single Judge in C.O. 759 of 2021

passed on 24th June 2021; Deepak Polymers Pvt. Ltd. vs Anchor

Investments Pvt. Ltd (along with C.O. 765 of 2021 and the other civil

revisional applications before the Court all of which were disposed of by

the judgment). Since the respondents before this court have relied on the

said decision to contend that the present suit is not maintainable as a

commercial suit, the correctness of such contention should first be dealt

with.

The revisional applications in Deepak Polymers were filed against

applications for return of plaint on the ground that the commercial court

in which the suits were instituted does not have jurisdiction to hear the

suits. The court below rejected the applications filed under Order VII

Rule 10 of the CPC. The question before the learned Single Judge was

whether a suit for recovery of possession of immovable property under

section 106 of the Transfer of Property Act constitutes a 'commercial

dispute' under the provisions of The Commercial Courts Act, 2015. Upon

construing section 2(1)(c)(vii) of the 2015 Act, the Court held that suits

which are primarily filed for recovery of possession of immovable

property under section 106 of the TP Act and from a refusal by the

defendants to comply with the notices issued by the lessor under section

106 of the TP Act, is based on a statutory right independent of any

clause in the lease agreement . The Court hence concluded that the

dispute lay outside the purview of 2(1)(c)(vii) of the 2015 Act and is not a

commercial dispute.

Upon considering Deepak Polymers, this Court is of the view that

the question which was before the Court in that decision was the issue of

maintainability i.e. whether the concerned court, not being a commercial

court, had the power to entertain the suits and whether a suit for

recovery of immovable property under section 106 of the TP Act is a

'commercial dispute' under the provisions of the 2015 Act. Both the

aforesaid issues would assume relevance at the time of determining

whether such a suit should be heard by a commercial court. Such

questions would therefore fall for consideration only after the suit is

entertained and the parties are heard on the merits of the dispute, not

before. Since the instant case is for transfer of a suit pending before the

City Civil Court to this court, simpliciter, on the ground of commonality

of parties, subject matter and the issues to be tried, the question

whether the suit for recovery filed by the plaintiff is a commercial suit or

not is premature at this stage and may become relevant only at the time

when the suit is taken up for consideration by the Court on merits.

Besides, the respondents in their affidavit in opposition, have stated

that C.S. 105 of 2021 (being the present suit) is admittedly a commercial

suit filed in the commercial jurisdiction of this Court. The respondents'

stand is hence clearly contradictory. Moreover, the order of a co-ordinate

Bench dated 7th April 2021, passed in the earlier suit filed by the

petitioner (CS No. 136 of 2020) had directed that the plaint filed in the

said suit be returned to the plaintiff for presentation in the Commercial

Division of this Court. The said order was passed on the respondents

objecting to the jurisdiction by way of an application under Order VII

Rule 10 of the CPC. The respondents therefore are estopped in law and

by conduct from taking the point that the suit filed by the petitioner

thereafter on the same cause of action and for the same reliefs (C.S. No.

105 of 2021) is not a commercial suit.

The other objections taken by counsel for the respondents with

regard to the 2015 Act being a special statute having overriding effect on

all other laws including the Letters Patent of this Court is misconceived

and this Court does not find any substance in such contention.

On the other hand, the pleadings in both the suits indicate that the

subject matter of the dispute involve the same property between the

same parties leading to the presumption that the adjudication would

necessarily involve common questions of law and evidence. There is

hence good reason to transfer T.S. No. 571 of 2020 pending before the

City Civil Court to this Court so that the said suit and C.S. 105 of 2021

can analogously be heard by this Court. Clause 13 of the Letters Patent

of the High Court of Judicature at Fort William in Bengal mandates that

this Court shall have the power to remove any suit falling within the

jurisdiction of this Court and subject such suit to its superintendence

when the Court thinks it proper to do so for the purposes of justice. On

considering the facts, the Court is of the view that this is a fit case for

exercising the power under Clause 13 for preventing multiplicity of

proceedings, conflicting decisions and unnecessary litigation costs. An

order passed by a learned Single Judge in Shyam Sunder Jalan vs Kamal

Agarwala; ALP No.23 of 2014 may be referred to in this context where a

similar issue was involved.

A.L.P. No. 3 of 2021 is allowed and disposed of for the above

reasons. T.S. No. 571 of 2020 pending before the VIth Bench, City Civil

Court at Calcutta is directed to be transferred to this Court to be heard

along with C.S. 105 of 2021. The department is directed to take

appropriate steps and parties are given liberty to mention for listing of

the suits.

(MOUSHUMI BHATTACHARYA, J.)

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