Mazhar Hussain vs M/S. India Construction Company ...
2023 Latest Caselaw 944 Cal/2

   ORDER                                                        OCD-1
                              APOT/90/2023
                                  WITH
                               CS/26/2023
                            IA NO: GA/1/2023
                   IN THE HIGH COURT AT CALCUTTA
                    CIVIL APPELLATE JURISDICTION
                            ORIGINAL SIDE


                        MAZHAR HUSSAIN
                            VERSUS
           M/S. INDIA CONSTRUCTION COMPANY AND ORS.



  BEFORE:
  THE HON'BLE JUSTICE HARISH TANDON

THE HON'BLE JUSTICE PRASENJIT BISWAS [COMMERCIAL DIVISION] Date : 13th April 2023.

APPEARANCE:

Mr. Anirudhya Dutta, Advocate Mr. Rajdeep Mantha, Advocate ...... for Appellant.

The Court:- The appeal arises from a judgment and order dated 28th

February 2023 passed by the Learned Single Judge in CS/26/2023

whereby and whereunder leave under the provisions of Section 12A of the

Commercial Courts Act, 2015 has been refused. The Single Bench

proceeded on the premise that there is no contemplation of an urgent

interim relief found from the plaint and therefore dispensation of the

provisions of Section 12A of the Act cannot be accepted. However, the

Learned Single Bench has directed return of the plaint for being presented

after compliance with the provisions of Section 12A(1) of the Act, provided

it is permissible in law. Although the Single Bench noticed the judgment

of the Supreme Court rendered in the case of Patil Automation Private

Limited & Others v. Rakheja Engineers Private Limited reported in (2022)

10 SCC 1, yet directed return of the plaint for being presented after

compliance with the provisions contained in Section 12A of the said Act.

The Apex Court in the case of Patil Automation Private Limited (supra)

indicated that the moment the plaint does not contemplate urgent interim

relief, there is no option left to the Court but to reject the plaint. There is

no concept of return of the plaint to be presented subsequently after

complying with the provisions of Section 12A of the Act and in such view

of the matter, we do not find that the course which has been adopted by

the Single Bench is in tune with the spirit of the judgment rendered by the

Apex Court in the above-noted case.

We had the occasion to peruse the plaint annexed to the application

and the reliefs claimed therein. Our endeavour has failed to find out any

contemplation for urgent interim relief claimed therein. However, the

learned advocate appearing for the appellant submits that the averments

made in paragraph 35 of the plaint, if read meaningfully, would indicate

that the plaintiff does contemplate for urgent interim relief which would

further be evident from the fact that an application for injunction is taken

out in the suit. The law as expounded by the Supreme Court in Patil

Automation Private Limited (supra) does not indicate that in absence of

any urgent interim relief claimed in the plaint, the rigour of the said

provisions has to be construed in the perspective of an application being

taken out seeking interim relief. The aforesaid submission appears to us

incongruous for the simple reason that even if urgent interim reliefs are

prayed in the plaint, the plaint would invite rejection in the event an

application for injunction is moved before the Court and the Court does

not find any urgency to pass an interim order therein. The legislature

never contemplated such recourse to be adopted. The language employed

in Section 12A of the Act is explicit to the extent that dispensation of

provisions contained in Section 12A of the Act can only be resorted to in

the event it contemplates urgent interim relief which obviously would be

seen from the reliefs claimed in the plaint and the averments made

therein. There is no prayer either for perpetual or mandatory injunction

in the plaint though an omnibus way of incorporating the word

"injunction" in the plaint is adopted which, in our opinion, does not satisfy

the basic ingredients required to be pleaded for the purpose of

dispensation of the provisions contained in Section 12A of the Act. The

provision of Section 12A of the Act is restricted to a case where urgent

interim relief is contemplated and not dependent upon the subsequent

action of the parties or seeking a relief by way of an interlocutory

application.

We, thus, do not find any merit in the instant appeal. However, we

make it clear that the course adopted by the Single Bench in returning the

plaint is contrary to the ratio of the judgment rendered in Patil

Automation Private Limited (supra) and therefore, the order is modified to

the extent that instead of returning the plaint, it should be deemed to

have been rejected.

The appeal and the application are disposed of.

(HARISH TANDON, J.)

(PRASENJIT BISWAS, J.) s.kumar