Calcutta High Court
Skipper Limited vs Prabha Infrastructure Private ... on 5 January, 2023
ORDER SHEET
ODC-3
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
(COMMERCIAL DIVISION)
IA NO:GA 2 OF 2022
IN
CS 195 OF 2022
IN THE MATTER OF :
SKIPPER LIMITED
VS
PRABHA INFRASTRUCTURE PRIVATE LIMITED
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 5th January, 2023
Appearance:
Mr. Sankarsan Sarkar, Adv.
Mr. Rites Goel, Adv.
Mr. Ritoban Sarkar, Adv.
Ms. Tanvi Pahariwala, Adv.
For defendant
Mr. Sabyasachi Chaudhury, Adv.
Mr. Sayantan Bose, Adv.
Mr. Shounak Mukhopadhyay, Adv.
Mr. Shreyaan Bhattacharyya, Adv.
For plaintiff/respondent
The Court :- This is an application by the sole defendant for rejection
of the plaint, inter alia, on the ground that the plaint discloses no ground for
which the formalities of Section 12A of the Commercial Courts Act,
2015(hereinafter referred as 'said Act') could have been dispensed with.
Referring to the plaint, the defendant says that only paragraph 61 of
the plaint is the averment in respect of urgent interim relief for which
dispensation of formalities of Section 12A of the said Act was prayed for. The
defendant further says that the plaint does not fulfill the requirements as laid
down in the judgment reported in (2022) 10 SCC 1 ( Patil Automation Private
Limited and Others Vs. Rakheja Engineers Private Limited ). The defendant has
also relied upon a Division Bench judgment delivered on 9th December, 2022 in
FMAT 360 of 2022 (M/s. Odisha Slurry Pipeline Infrastructure Limited and Anr.
Vs IDBI Bank Limited and Ors.)
Referring to Odisha Slurry (supra), the defendant says that the cut
off date in respect of suits filed in the Commercial Division of this Court wherein
dispensation of 12A of the said Act were obtained is the date on which the
judgment reported in AIR 2021 Cal 190 (Laxmi PolyFab Pvt. Ltd.. Vs. Eden Realty
Ventures Pvt. Ltd & Anr.) was delivered. The plaintiff, according to the defendant,
therefore, cannot take advantage of the cut off date as mentioned in Patil
Automation (supra) in view of the fact that the jurisdictional High Court that is
this Court in Laxmi PolyFab (supra) had held the provisions of Section 12A of the
said Act is mandatory.
Responding to this contention of the defendant, it is submitted by the
plaintiff that at the time when the plaint was presented and admitted that is on
3rd August, 2022 neither the judgment in Patil Automation (supra) nor that in
M/s. Odisha Slurry(supra) had been passed. The law prevailing at that point of
time was that as laid down in Laxmi PolyFab (supra). The plaintiff has complied
with the then existing requirement. The plaint, therefore, cannot be rejected in
view of the provisions of 12A of the said Act. The plaintiff also says that in its first
application being GA 1 of 2022 being one, inter alia, for injunction, attachment
before judgment and security the plaintiff has clearly demonstrated the grounds
for which urgent interim relief was contemplated in the suit. The plaintiff's
application being GA 1 of 2022 is not appearing in the list today.
Let this application appear in the list on 10th January, 2023 along
with GA 1 of 2022 filed in this suit so that both the applications can be taken up
and hard in reference to each other.
(ARINDAM MUKHERJEE, J.)
sb.
