Carpol Industries Pvt. Ltd vs Reliance Infratel Limited
2023 Latest Caselaw 882 Cal/2

OCD-2
                              ORDER SHEET


                            CS 44 of 2023
                          IA No.GA 1 of 2023
                  IN THE HIGH COURT AT CALCUTTA
                ORDINARY ORIGINAL CIVIL JURISDICTION
                            ORIGINAL SIDE
                       (COMMERCIAL DIVISION)


                     CARPOL INDUSTRIES PVT. LTD.
                                 VS
                      RELIANCE INFRATEL LIMITED

BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE

Date: 5th April, 2023.

Mr. Sayantan Bose, Mr. Gautam Kr. Ray, Mr. T. K. Jana, Mr. Gopal Das, Mr. Sourav Jana, Advocates for plaintiff.

The Court : The proposed plaintiff intends to institute the suit by

presenting the plaint upon obtaining dispensation of formalities under

Section 12A of the Commercial Courts Act, 2015 (hereinafter referred to as

the 2015 Act) against the proposed defendant inter alia for eviction from a

premises let out for commercial purpose and consequential injunction. The

proposed plaintiff says that it contemplates urgent and immediate relief as a

Special Officer is required to be appointed to remove the equipments, tools

and machineries of the proposed defendant lying at the suit premises and

keep the same under the custody of the Special Officer.

It is the case of the proposed plaintiff that the lease between the

plaintiff and the proposed defendant expired some time around 27th July,

2014 by efflux of time and the same was not renewed and/or extended any

further. The proposed plaintiff had called upon the proposed defendant to

hand over vacant and peaceful possession on expiry of the lease but the

proposed defendant did not comply with such request. It is also the case of

the proposed plaintiff that on 30th May, 2015 a Memorandum of

Understanding was entered into between the proposed plaintiff and the

proposed defendant for a stipulated period upto 31st March, 2016. The

proposed defendant, according to the proposed plaintiff, was obliged to

vacate the suit property on expiry of March, 2016. It is the further case of

the proposed plaintiff that the proposed defendant did not pay any

occupational charges since July, 2015. The proposed plaintiff alleges that

the proposed defendant is illegally occupying the suit premises as a

trespasser and/or as an unauthorised occupant.

The proposed plaintiff in paragraph 17 says that the proposed plaintiff

issued a notice on 22nd November, 2022 calling upon the proposed

defendant to hand over vacant and peaceful possession of the suit property

within 15 days from the date of receipt of the said notice. The proposed

plaintiff also alleges that despite receipt of such notice the proposed

defendant did not quit and vacate or hand over peaceful and vacant

possession after expiry of the said notice period.

The proposed plaintiff has also claimed a money decree for

occupational charges from July, 2015 to February, 2023 and perpetual

injunction restraining the proposed defendant from transferring, alienating,

encumbering and/or creating any third party right and/or interest in

respect of the suit premises.

The cause of action, if any, in favour of the proposed plaintiff arose

immediately after 27th July, 2014 when the lease expired by efflux of time.

The proposed plaintiff did not approach the Court at that point of time but

entered into a Memorandum of Understanding by and under which the

period of occupation of the proposed defendant was extended upto March,

2016. Thus the cause of action, if any, of the proposed plaintiff arose on

expiry of March, 2016. The proposed plaintiff did not approach the Court

immediately thereafter but waited for more than 6 years to issue the eviction

notice on 22nd November, 2022.

The proposed plaintiff was well within its right to approach the court

on the last day of limitation but having waited for so long since the right to

sue accrued, the proposed plaintiff cannot then turn around and say that

urgent interim reliefs are contemplated in the year 2023. It is well settled

that the right to sue which accrued with the expiry of March, 2016 does not

get deferred with the accrual of subsequent cause of action, if any. In this

regard reference may be made to the judgment reported in (2016) 13 SCC 1

(Sundaram Finacne Ltd.-versus- Noorjahan Beevi & Anr.). That apart and in

any event the averments to support contemplation of urgent interim relief as

pleaded in paragraph 30 of the plaint do not appeal to this Court.

In a suit for eviction normally the belongings of the defendant are not

directed to be removed until there is a decree passed against the said

defendant. The appointment of Special Officer for the purpose of taking

custody of the articles of the proposed defendant, therefore, cannot be a

ground of contemplated urgency in 2023 when the plaintiff has waited since

April, 2016.

In the aforesaid facts and circumstances, dispensation of formalities

under Section 12A as prayed for by the proposed plaintiff is refused. The

proposed plaintiff, however, will be at liberty to institute a suit on the self-

same cause of action if otherwise permissible in law after complying with

the requirements of pre-institution mediation as envisaged under Section

12A(1) of the 2015 Act.

The plaint has not entered the records of the Court on being not

admitted on being presented and has only been filed in the computer

department of this court to which a number has been allotted. The plaint,

therefore, is directed to be returned back to the proposed plaintiff along with

the court fees after completing the requisite formalities for the same. The

proposed plaintiff will be entitled to use the same court fees in a suit against

the same defendant on the self-same cause unless there is any statutory

embargo for the same.

(ARINDAM MUKHERJEE, J.)

pa