Calcutta High Court
Maharshi Commerce Limited vs Rajiv R. Balani & Ors on 10 November, 2022
1
OD-13
CS/3/2019
IA NO. GA/6/2022
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
MAHARSHI COMMERCE LIMITED
Vs.
RAJIV R. BALANI & ORS.
BEFORE :
The Hon'ble JUSTICE KRISHNA RAO
Heard On: 31.10.2022
Order On: 10.11.2022
Appearance:
Mr. Sabhyasachi Chowdhury, Adv.
Mr. Avinash Kankani, Adv.
Ms. A. Laha, Adv.
Mr. Suman Majumder, Adv.
...for the plaintiff
Mr. Rupak Ghosh, Adv.
Mr. Sankarsan Sarkar, Adv.
Mr. Abhijit Sarkar, Adv.
Mr. Abhik Chitta Kundu, Adv.
...for the defendants
2
ORDER
Defendant has filed the instant application praying for an order for
returning/transferring the plaint to appropriate Court/Division having
jurisdiction to try, determine or entertain the instant suit.
Counsel for the defendant submits that the plaintiff has filed the instant
suit praying for eviction, recovery of possession and for mesne profit against
the defendant.
Counsel for the defendant has referred paragraphs 2, 3, 5, 6, 8, 9, 10,
11, 13, 16 and 18 of the plaint and submits that from the pleading of the
plaint, it is established that the schedule property is a shop room covering an
area of 390 sq.ft. in the ground floor of the Premises No. 18, Rabindra Sarani,
Kolkata in which the defendant is running the business.
Ld. Counsel for the defendant has also referred the documents filed by
the plaintiff at the time of filing of the suit and by referring the same, it was
contended that in the correspondence between the plaintiff and the defendant,
it is crystal clear that the defendant is running business in the schedule
premises.
Ld. Counsel for the defendant has relied upon Section 2(1)(c)(vii) and
submits that it is the admitted case of the plaintiff, the defendant is running
business in the schedule premises and thus the suit is not maintainable before
this Court and the plaint is required to be returned to the plaintiff to file the
same before the appropriate court.
Ld. Counsel for the defendant has relied upon the following judgments:
i. (1955) 1 SCR 117 (Kiran Singh & Others -versus- Chaman Paswan
and Ors.).
ii. (2020) 15 SCC 585 (Ambalal Sarabhai Enterprises Limited -versus-
K. S. Infraspace LLP & Another).
iii. Unreported Judgment passed by the Hon'ble High Court of Gujarat
at Ahmadabad in the case of (M/s. Kushal Limited Through Auto
Sign and Managing Director -versus- M/s. Tirumala Technocast
Private Limited) dt. 10.06.2022.
Per Contra, Mr. Choudhury representing the plaintiff submits that as per
Section 2(1)(c)(vii), an agreement between the parties is required to say that the
plaintiff had let out the premises to the defendant for business and the
defendant is running the business in the said premises but in the instant case
there is no agreement between the parties.
Mr. Choudhury had referred paragraphs 3, 7, 12, 13, 15, 17 and 20 and
submits that it is the specific case of the plaintiff that the plaintiff had let out
the premises to Mr. B. G. Harchandani, Mr. D. G. Harchandani and J. G.
Harchandani being the partners of M/s. Getco Electricals.
Mr. Choudhury further contended that only after enquiry the plaintiff
came to know that Mr. B. G. Harchandani, Mr. D. G. Harchandani and J. G.
Harchandani were not associated with the business of defendant no. 3 and
they have handed over the possession of the suit schedule property to the
defendant no.1 and 2 and there is no relationship with the defendant no.1 and
2.
Mr. Choudhury further submitted that the defendants are in illegal
possession of the suit property and there is no relationship with the plaintiff
and the defendants and there is no agreement between the plaintiff and the
defendants and thus Section 2(1)(c)(vii) is not applicable in the instant case and
accordingly the plaintiff has filed the instant suit before this court.
Mr. Choudhury further submitted that the defendant had earlier filed an
application challenging the maintainability of the suit being G.A. 2 of 2019
though on the some other ground but the said application was also rejected by
this Court.
Mr. Choudhury had relied upon the judgment reported in (2010) 9 SCC
129 (Vinaykishore Punamchand Mundhada & Another -versus- Shri Bhumi
Kalpataru & Another).
Heard, the Ld. Counsel for the respective parties, considered the
application, documents and the judgments relied by the parties.
Now, the question is whether the dispute between the parties in the
instant suit is covered under Section 2(1)(c)(vii) of the Commercial Courts Act,
2015 or not.
Upon reading of the entire plaint it reveals that it is admitted case of the
plaintiff that the suit schedule property consists of shops and offices and is
mainly used for commercial purposes. It is also admitted that the plaintiff had
let out the premises to Mr. B.G. Harchandani, Mr. D.G. Harchandani and J.G.
Harchandani who are the partners of M/s. Getco Electricals for the purpose of
shop. It is also admitted by the plaintiff that the plaintiff was issuing rent
receipts in the name of defendant no. 3 under the impression that Mr. B.G.
Harchandani, Mr. D.G. Harchandani and J.G. Harchandani were still the
partners of defendant no. 3 who is in occupation of the suit premises.
In support of the contention, the counsel for the plaintiff has relied upon
the judgment of Vinaykishore Punamchand Mundhada and Another (Supra)
and submits that once it is established that none of the previous partners of
firm continued to be the partners of the newly constituted firm, it becomes
clear that the firm is altogether different firm consisting of new partners who
were inducted into possession by the previous tenant.
In the instant application only the question whether the premises is
being used for commercial purpose or not and whether the defendants are
tenants or illegal occupier or not is to be decided during the hearing of the suit
and thus the judgment is distinguishable.
The only dispute raised by the plaintiff that there is no agreement
between the plaintiff and the defendants and the defendants are in illegal
possession of the suit premises and as per section 2(1)(c)(vii) of the Commercial
Courts Act and agreement is required.
The judgment relied by the defendant in the case of Ambalal Sarabhai
Enterprises Limited (Supra) it is held that :
"36. A perusal of the Statement of Objects and Reasons of the
Commercial Courts Act, 2015 and the various amendments to the Civil
Procedure Code and insertion of new rules to the Code applicable to suits
of commercial disputes show that it has been enacted for the purpose of
providing an early disposal of high value commercial disputes. A purposive
interpretation of the Statement of Objects and Reasons and various
amendments to the Civil Procedure Code leaves no room for doubt that the
provisions of the Act require to be strictly construed. If the provisions are
given a liberal interpretation, the object behind constitution of Commercial
Division of Courts viz. putting the matter on fast tract and speedy
resolution of commercial disputes, will be defeated. If we take a closer look
at the Statement of Objects and Reasons, words such as "early" and
"speedy" have been incorporated and reiterated. The object shall be
fulfilled only if the provisions of the Act are interpreted in a narrow sense
and not hampered by the usual procedural delays plaguing our traditional
legal system.
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.
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."
In the instant case, it is admitted by the plaintiff that the plaintiff had
initially let out the shop room to Mr. B.G. Harchandani, Mr. D.G. Harchandani
and J.G. Harchandani who were the partners of M/s. Getco Electricals and still
the defendant no. 3 is running his business in the said shop though Mr. B.G.
Harchandani, Mr. D.G. Harchandani and J.G. Harchandani are not the
partners but the defendants no.1 and 2 are the partners and thus this Court is
of the view that defendants are using the suit schedule property for business
purpose and would constitute a commercial dispute.
In view of the above, this Court has no jurisdiction to proceed with the
instant suit.
In the judgment reported in (2014) 1 SCC 648 (Oil and Natural Gas
Corporation Ltd. -vs- Modern Construction and Company), the Hon'ble
Supreme Court held that :-
"17. Thus, in view of the above, the law on the issue can be
summarised to the effect that if the court where the suit is instituted, is of
the view that it has no jurisdiction, the plaint is to be returned in view of
the provisions of Order 7 Rule 10 CPC and the plaintiff can present it
before the court having competent jurisdiction. In such a factual matrix, the
plaintiff is entitled to exclude the period during which he prosecuted the
case before the court having no jurisdiction in view of the provisions
of Section 14 of the Limitation Act, and may also seek adjustment of court
fee paid in that court. However, after presentation before the court of
competent jurisdiction, the plaint is to be considered as a fresh plaint and
the trial is to be conducted de novo even if it stood concluded before the
court having no competence to try the same.
21. Thus, the respondent cannot take the benefit of its own mistake.
The respondent instituted the suit in the civil court at Mehsana which
admittedly had no jurisdiction to entertain the suit. In spite of the fact that
the civil suit stood decreed, the High Court directed the court at Mehsana
to return the plaint in view of the provisions of Order 7 Rule 10 CPC. Thus,
the respondent presented the plaint before the Civil Court at Surat on 3-2-
1999."
The above judgment is confirmed by the Hon'ble three Judge's Bench in
the case reported in (2020) 12 SCC 667 (EXL Careers and Another -vs-
Frankfinn Aviation Services Private Limited) and held that : -
"16. We find no contradiction in the law as laid down in Modern
Construction pronounced after consideration of the law and precedents
requiring reconsideration in view of any conflict with Joginder Tuli. Modern
Construction (supra) lays down the correct law. We answer the reference
accordingly.
20. The statutory scheme now becomes clear. In cases dealing with
transfer of proceedings from a Court having jurisdiction to another Court,
the discretion vested in the Court by Sections 24(2) and 25(3) either to
retry the proceedings or proceed from the point at which such proceeding
was transferred or withdrawn, is in marked contrast to the scheme under
Order 7 Rule 10 read with Rule 10-A where no such discretion is given and
the proceeding has to commence de novo."
Considering the settled position of law, the plaint of the instant suit is
return to the plaintiff to present it before the Court having competent
jurisdiction.
G.A. No. 6 of 2022 is thus disposed of.
(KRISHNA RAO, J.)
p.d
