Abdul Rashid vs Bidhan De Sarkar & Anr
2023 Latest Caselaw 849 Cal/2

OCD-2
                               ORDER SHEET


                            CS 57 of 2023
                          IA No.GA 1 of 2023
                  IN THE HIGH COURT AT CALCUTTA
                ORDINARY ORIGINAL CIVIL JURISDICTION
                            ORIGINAL SIDE
                       (COMMERCIAL DIVISION)

                             ABDUL RASHID
                                  VS
                        BIDHAN DE SARKAR & ANR.

BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE

Date: 31st March, 2023.

Mr. Ishaan Saha, Mr. Nilay Sengupta, Mr. Sujit Banerjee, Advocates for plaintiff.

The Court : The plaintiff (hereinafter referred to as the proposed

plaintiff) intends to present the plaint for instituting a suit against two

defendants (hereinafter referred to as the proposed defendants) inter alia for

declaration and specific performance of two registered development

agreements dated 25th October, 2017 (hereinafter referred to as the said

agreements). The premises which is required to be developed under the said

agreements are situate at 42C and 42D, Serpentine Lane, Kolkata-700014

within the Ordinary Original Civil Jurisdiction of this Court. The proposed

defendants are described as the owners in the said agreements. It is the

case of the proposed plaintiff that by a notice dated 1st September, 2020 the

two development agreements, the specific performance whereof is sought for

in the suit were cancelled and the Power of Attorney given in consequence

thereof were also revoked. Admittedly the proposed plaintiff did not take any

step immediately after 1st September, 2020 except replying to the said

notices. The tenure of the development agreements were 24 months from

the date of handing over of vacant possession. Although, the proposed

plaintiff says that vacant possession of the two premises were not handed

over to the proposed plaintiff but the fact remains that the termination of

the agreements and the cancellation took place in September 2020. The

proposed plaintiff's cause of action as per the pleading arose immediately

upon receipt of the termination notice dated 1st September, 2020. The

proposed plaintiff had waited for about two and half years to approach the

Court. The proposed plaintiff says that the plaintiff has been served with a

caveat on 9th March, 2023 for which the proposed plaintiff apprehends a

legal action from the proposed defendants which is the basis of the

plaintiff's contemplation for urgent interim relief in favour of the plaintiff

which accrues with the service of the termination notice and revocation of

the power of attorney as alleged by the proposed plaintiff. This ground for

dispensation of the formalities under Section 12A of the Commercial Courts

Act, 2015 (hereinafter referred to as the said Act) does not appeal to the

Court for exercising a discretion available to Court.

It is well settled that the right to sue does not get deferred till the

service of the caveat on 9th March, 2023 in view of the ratio laid down in the

judgment reported in (2016) 13 SCC 1 (Sundaram Finacne Ltd.-versus-

Noorjahan Beevi & Anr.). Even if in the instant case the benefit of the orders

passed by the Hon'ble Supreme Court during the covid period is given to the

proposed plaintiff, then also the proposed plaintiff had enough time from 1st

March, 2022 to approach the Court. The proposed plaintiff is free to wait till

the last day of limitation to approach the Court and institute a suit but in

such a case the proposed plaintiff has to show imminent urgency which

requires urgent relief even considering that the right to sue had accrued

quite some time back. In the instant case, I do not find any such situation

which warrants leave under Section 12A of the said Act to be granted to the

proposed plaintiff for instituting the suit. Leave under Section 12A of the

said Act is refused. That apart and in any event, service of caveat by the

proposed defendants in respect of a litigation in the City Civil Court at

Calcutta clearly demonstrates that the proposed defendants were

contemplating a legal action from the side of the proprosed plaintiff and not

the other way round as alleged by the plaintiff.

The proposed plaintiff has also sought for leave under Clause 12 of

the Letters Patent, 1865 but since the immovable property in respect of

which development agreements were executed and the proposed defendants

are within the Ordinary Original Civil Jurisdiction of this Court, there is no

necessity to pray for such leave.

The presentation of the plaint, therefore, fails as the same is not

admitted by granting dispensation of formalities under Section 12A of the

said Act. The plaint, therefore, has not entered the records of the Court on

being admitted 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 present the plaint for institution of a suit against the proposed

defendants on the self-same ground after complying with the provisions of

pre-institution mediation as laid down under Section 12A of the said Act, if

otherwise permissible in law. The plaintiff will be also entitled to use the

court fees to be returned in respect of a suit on the self-same cause of

action as against the same defendants unless there is any statutory

embargo to the same.

(ARINDAM MUKHERJEE, J.)

pa