Calcutta High Court
Mahesh Thakur vs Om Prakash Bhartia & Ors on 8 April, 2025
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
G.A. (COM) No. 2 of 2024
In
CS (COM) No. 568 of 2024
Mahesh Thakur
Versus
Om Prakash Bhartia & Ors.
Mrs. Suparna Mukherjee, Sr. Adv.
Mr. Ratul Das
Mr. Diptomoy Talukder
Mr. Tushar Kanti Hare
Mr. D. Ghosh
Mr. T. Talukder
Ms. Archita Chel
... For the plaintiff.
Mr. Gopal Pahari
Ms. Mandeep Kaur
Ms. Piyali Kulari
... For the defendant nos. 1, 2 & 9.
2
Mr. Sakya Sen, Sr. Adv.
Mr. Uttam Sharma
... For the defendant nos. 3 to 5.
Mr. Debjit Mukherjee
Mrs. S. Chatterjee
Mr. Lalratan Mondal
Mr. K. Bhattacharya
... For the defendant nos. 6 & 11.
Mr. Udaynarayan Betal
Mr. Mriganka Patra
... For the defendant no. 7.
Mr. Arindam Paul
Ms. Puja Rajbhar
... For the defendant no. 8.
Hearing Concluded On : 18.03.2025
Judgment on : 08.04.2025
Krishna Rao, J.:
1. The defendant nos. 3, 4 and 5 have filed this application being G.A.
(Com) No. 2 of 2024 praying for revocation of leave granted under
Section 12A of the Commercial Courts Act, 2015 and for dismissal of
suit.
2. Mr. Sakya Sen, Learned Senior Advocate representing the defendant
nos. 3, 4 and 5 submits that the averments in the plaint read with the
documents annexed with the plaint reveals that the plaintiff did not
contemplate any urgent interim relief.
3. Mr. Sen referred paragraphs 13, 14 and 15 of the plaint and submits
that on being refused by the defendant nos. 1 and 2 for execution of
conveyance deed, the plaintiff has previously filed a suit being C.S. No.
231 of 2023 but subsequently the same was withdrawn on 24th
January, 2024 with the liberty to file afresh on the same cause of
action. He submits that the cause of action pleaded in the present
plaint up to paragraph 18 were the part of cause of action pleaded in
the earlier suit. He submits that in the present suit, the plaintiff has
referred to a complaint dated 28th February, 2024 filed by the plaintiff
apprehending dispossession from unknown person and not against any
of the defendants in the present suit, thus there is no cause of action
against the present defendants.
4. Mr. Sen submits that the plaintiff expresses the apprehension that the
joint owners are proceeding with completion of formalities for obtaining
the sanction plan but the cause of action as already pleaded in the
previous paragraphs had arisen in the year 2021 and 2023 when the
request of the plaintiff for execution of conveyance has been rejected by
the defendants by a letter dated 12th May, 2023.
5. Mr. Sen submits that the plaintiff has pleaded that the defendants are
trying to construct multistoried building and relies upon the documents
which relates to the year 2023. The documents of the year 2023 cannot
give urgency for dispensation of Section 12A of the Commercial Courts
Act, 2015 as earlier suit filed by the plaintiff for the same cause of
action was withdrawn in the month of January, 2024.
6. Mr. Sen submits that there is no averment with regard to any recent
refusal of execution of Deed of Conveyance. He submits that the cause
of action of the plaintiff arisen in the first week of December, 2014,
which according to the plaintiff has continued till 10th April, and 3rd
October, 2023, thus there is no contemplation of any urgent relief. He
submits that the plaintiff has withdrawn the previous suit in the month
of January, 2024 and the present suit is filed on 5th March, 2024,
therefore, the plaintiff has waited for considerable period of time within
which the plaintiff could have been exhausted the remedy of mediation.
7. Mr. Sen submits that for urgent relief, the plaintiff has relied upon the
complaint that some unknown persons threatened the plaintiff to
disposes the plaintiff from the suit property but the said complaint does
not discloses the name of the defendant herein.
8. Mr. Sen relied upon the judgment in the case of Yamini Manohar Vs.
TKD Keerthi reported in (2024) 5 SCC 815 and submitted that by a
clever drafting, the plaintiff is not entitled to bypass the statutory
mandate of Section 12A of the Commercial Courts Act, 2015. He
submits that the contemplation of urgent interim relief has to be
understood and must be apparent from the pleadings in the plaint and
the documents.
9. Mr. Sen relied upon the judgment in the case of Proactive Ship
Management Private Limited Vs. Owners and Parties Interested in
the Vessel Green Ocean reported in 2024 SCC OnLine Cal 1838 and
submitted that leave granted under Section 12A of the Commercial
Courts Act, 2025 subsequently can be revoked.
10. Mrs. Suparna Mukherjee, Learned Senior Advocate representing the
plaintiff submits that the defendant nos. 3, 4 and 5 have not made out
any case of the previous suit or its effect on the cause of action being
the same as that of the previous suit. She submits that the defendants
herein are not entitled to raise any new plea without specific pleadings
in the application. She submits that as the said plea is not raised in
their application, the plaintiff could not get an opportunity to deal with
the allegation of the defendants. In support of her submissions, she has
relied upon the judgment in the case of National Textile Corporation
Limited vs. Nareshkumar Badrikumar Jagad reported in (2011) 12
SCC 695 and submitted that it is settled law that reliefs not founded in
pleading should not be granted.
11. Mrs. Mukherjee submits that while adjudication of an application for
rejection of plaint, it is only the plaint and documents are to be
considered. The defense in the written statement cannot be considered
while deciding the application for rejection of plaint. In support of her
submissions, she has relied upon the judgement the case of Eldeco
Housing and Industries Limited vs. Ashok Vidyarthi & Ors.
reported in 2023 SCC OnLine SC 1612.
12. Mrs. Mukherjee submits that the submissions made by the defendants
is contrary to the case pleaded in their application. She submits that as
per the provisions of Section 12A of the Commercial Courts Act, 2015
the only requirement for dispensation is that in the plaint there should
be pleadings which contemplate urgent interim relief. In the present
case, with regard to the contemplation of urgent reliefs, the statements
made in paragraphs 18 and 20 are to be read holistically. She submits
that the defendants have not dealt with the complaint and have not
considered that the plaintiff has specifically averred that the plaintiff
recently came to know that the defendants are taking steps for
obtaining sanction plan prior to filing of the suit.
13. Mrs. Mukherjee submits that merely because in the complaint does not
identify the miscreant or the accused made before the police authority
with respect to the suit property it cannot be said that contemplation of
urgent relief is not applicable. She submits that the plaint cannot be
rejected because the contemplation of urgent interim reliefs in respect
of some of the defendants have been prayed for and not against all the
defendants.
14. Mrs. Mukherjee relied upon the following judgments and submits that
the Hon'ble Supreme Court, the Hon'ble Division Bench and Single
Judge's Bench have set out grounds for consideration of contemplation
of urgent relief:
"i. Yamini Manohar vs. TKD Keerthi reported in
(2024) 5 SCC 815.
ii. Shristi Infrastructure Development Corporation
Limited vs. Sarga Hotel Private Limited reported in
2024 SCC OnLine Cal 7817.
iii. Gavrill Metal Private Limited vs. Maira
Fabricators Private Limited reported in 2023 SCC
OnLine Cal 2443.
iv. Baynee Industries vs. Rajiv Rosha reported in
2024 SCC OnLine Cal 7590.
v. Duvarthim Visadahyum International
Cooperation Strategies S.R.L. vs. Apocalypse Steel
and Power Limited & Ors."
15. Relying upon the above mentioned judgments, the Learned Counsel for
the plaintiff submits that the scope of inference with the revocation of
leave under Section 12A of the Commercial Courts Act, 2015 is limited.
She submits that the grounds as alleged in the present application by
the defendants, there is no scope for revocation of the leave for
dispensation granted by this Court.
16. Mrs. Mukherjee relied upon paragraphs 3, 4 and 7 of agreement with
the defendant nos. 1 and 2 as Directors of Dream Homes Private
Limited (Presently known as Kanhaiya Realtors Private Limited) and
seven Deed of Conveyances wherein the defendant no.1 was the
authorized representative and Director of the defendant no.3 in between
2014 to 2019. The plaintiff has further relied upon the list of
shareholders for the defendant no.3 for the Financial Year 2019-2020
and 2020-2021 wherein the defendant nos.1 and 2 had resigned as
Directors and continued to be shareholders of the defendant no. 3.
17. Mrs. Mukherjee submits that the plaintiff has specifically pleaded a
case of fraud being perpetrated by the defendant nos. 1, 2, 3, 4 and 5 in
respect of change of Directors and shareholding of the defendant no.3
behind the back of the of the plaintiff which the plaintiff has specifically
pleaded in the plaint.
18. Mrs. Mukherjee submits that the Memorandum of Understanding dated
7th April, 2021 entered between the plaintiff and the defendant nos.1,
2 and 3 along with the others joint owners of the Khanna Property as
witness whereof, the defendant no.6 has filed an affidavit in support of
the representations and agreement between the plaintiff and the
defendant nos. 1and 2.
19. Mrs. Mukherjee submits that provisions of rejection of plaint cannot be
invoked for nondisclosure of cause of action in respect of some of the
defendants who may be proper parties and necessary parties to the
suit.
20. The first issue raised by the defendant nos. 3, 4 and 5 is that there is
no cause of action against the defendants herein. It is the contention of
the defendants that as per the case made out by the plaintiff, the
plaintiff entered into an oral Memorandum of Understanding with the
defendant nos.1 and 2 for purchase of the 6 cottahs of land out of total
area of 39 Cottahs, 3 Chittaks and 8 Square Feet though the defendant
nos.1 and 2 are not the owners of the property and the same belongs to
the defendant no.3 along with defendant nos. 6 and 7. It is also the
contention of the defendants herein that the plaintiff has neither
entered into any agreement with the defendant nos. 3, 4 and 5 and nor
has made any payment to the defendants herein.
21. On 21st February, 2019, the defendant no. 7, the defendant no.6 and
the defendant no.3 through the defendant no.1 have entered into an
Agreement with the defendant no. 10 wherein it is admitted that the
defendant no.3 is having 25% share, the defendant no.6 having 36.50%
share and the defendant no. 7 having 38.50% share in the land
measuring an area of 39 Cottahs, 3 Chittacks and 8 Sq. Ft. in premises
No. 242A, Acharya Prafulla Chandra Road, Kolkata - 700 004.
22. In the Power of Attorney dated 21st February, 2019, the defendant no.1
has signed as Director of the Defendant no.3. In all seven deeds, the
defendant no.3 is one of the signatory which involves the property in
question.
23. In paragraph 15 of the Affidavit-in-Opposition filed by the defendant
no.6 in connection with G.A. (Com) No. 1 of 2024, the defendant no.6
has stated that the defendant no.6 came to know from the defendant
no.11 that a joint meeting was held in presence of the persons whose
name has been mentioned in the Memorandum of Understanding dated
7th April, 2021 between the defendant no.1 and the defendant no.2 with
the plaintiff. The defendant no.6 further stated that he came to know
from the defendant no.11 that the defendant nos. 1 and 2 assure for
arranging registration of 3 Cottahs of land in the premises No. 242A,
APC Road, Kolkata - 700 004 in favour of the plaintiff through the
defendant nos. 3, 4 and 5.
24. The defendant no.10 in his Affidavit-in-Opposition in G.A. (Com) No. 1
of 2024 stated that he was present in the meeting held sometimes in
the year 2022 at the residence of the defendant no.11 in presence of
Gajanan Munka, Surendra Agarwal, Nikunj Bharatia and Anil Lath
wherein the decision to hand over 3 kathas of land to the plaintiff was
taken. The defendant no. 10 further stated that the defendant no.10
personally handed over the said 3 kathas of land in favour of the
plaintiff from the possession of Rahul Plywood Centre.
25. In paragraph 31 of the plaint, the plaintiff has given details how the
cause of action for filing of the suit arose. In the case of Eldeco
Housing and Industries Limited Vs. Ashok Vidyarthi and Others
reported in 2023 SCC OnLine SC 1612, the Hon'ble Supreme Court
held that:
"23.11. The test for exercising the power
under Order 7 Rule 11 is that if the averments
made in the plaint are taken in entirety, in
conjunction with the documents relied upon, would
the same result in a decree being passed. This test
was laid down in Liverpool & London S.P. & I
Assn. Ltd. v. M.V. Sea Success I [Liverpool &
London S.P. & I Assn. Ltd. v. M.V. Sea Success
I, (2004) 9 SCC 512] which reads as : (SCC p. 562,
para 139)
"139. Whether a plaint discloses a cause
of action or not is essentially a question of
fact. But whether it does or does not must be
found out from reading the plaint itself. For the
said purpose, the averments made in the
plaint in their entirety must be held to be
correct. The test is as to whether if the
averments made in the plaint are taken to be
correct in their entirety, a decree would be
passed."
26. This in the case of Baynee Industries Vs. Rajiv Rosha reported in
2024 SCC OnLine Cal 7590 held that :
"25. From the aforesaid, it is apparent that
the plaint cannot be rejected on the basis of the
allegations made by the defendant in his written
statement or in an application for rejection of the
plaint. The Court has to read the entire plaint as a
whole to find out whether it discloses a cause of
action and if it does, then the plaint cannot be
rejected by the Court exercising the powers under
Order VII, Rule 11 of the Code. Essentially,
whether the plaint discloses a cause of action, is a
question of fact which has to be gathered on the
basis of the averments made in the plaint in its
entirety taking those averments to be correct. A
cause of action is a bundle of facts which are
required to be proved for obtaining relief and for the
said purpose, the material facts are required to be
stated but not the evidence except in certain cases
where the pleadings relied on are in regard to
misrepresentation, fraud, wilful default, undue
influence or of the same nature. So long as the
plaint discloses some cause of action which
requires determination by the court, mere fact that
in the opinion of the Judge the plaintiff may not
succeed cannot be a ground for rejection of the
plaint."
27. The plaintiff has made out a case that the defendant nos.1 and 2 are
the Directors of Bhartia Group of Companies now known as Kanhaiya
Realtors Private Limited and sometimes in the month of December
2014, the defendant nos. 1 and 2 have offered for sale of 6 cottahs of
land situated at premises No. 242A, Acharya Prafulla Chandra Road,
Kolkata at a price of Rs. 2,25,00,000/- by showing seven deeds of
conveyances. As per request made by the defendant nos. 1 and 2, the
plaintiff in full faith paid an amount of Rs. 1,95,00,000/-.
Subsequently, as per request of the defendant nos.1 and 2, the plaintiff
has further paid an amount of Rs. 30,00,000/- by way of two cheques
in favour of the defendant no. 9 on 11th October, 2017.
28. Subsequently, the plaintiff came to know that the defendant nos. 1 and
2 have committed fraud upon the plaintiff and to settle the issue a
meeting was held on 5th April, 2021 wherein the defendant nos.1, 2,
one Mr. Kalu Babu, Anil Kumar Lath i.e. defendant no.11 and other co-
owners of the scheduled property were present and it was decided that
the plaintiff would be entitled to 3 cottahs of land out of total 6 cottahs
for a total sum of Rs. 1,95,00,000/- and the balance amount of Rs.
30,00,000/- would be refunded to the plaintiff. It was also decided that
the defendant nos.1 and 2 would make necessary arrangement for
registration of Deed of Conveyance with respect to 3 Cottahs of land in
premises No. 242A at A.P.C. Road, Kolkata - 700 004. On 7th April,
2021, a Memorandum of Understanding was also entered between the
plaintiff and defendant nos.1 and 2.
29. Taking into consideration of the plaint as a whole, this Court finds that
the plaintiff has elaborately explained the cause of action to file the
present suit and thus it cannot be said that the plaint does not
discloses cause of action.
30. The next contention raised by the defendant nos. 3 4 and 5 in the
present application that the earlier suit was withdrawn by the plaintiff
on 24th January, 2024 and the present suit was filed by the plaintiff on
5th March, 2024 and the plaintiff has waited considerable period of time
within which the remedy of mediation could have been exhausted.
31. On 19th March, 2024, the plaint filed by the plaintiff was admitted
subject to scrutiny by the department. On the same day, this Court
granted leave under Clause 12 of the Letters Patent and also dispensed
with the provisions of Section 12A of the Commercial Courts Act, 2015.
32. Previously the plaintiff has filed a suit being C.S. No. 231 of 2023
against the defendants but on 24th January, 2024, the plaintiff has
withdrawn the suit with the liberty to file afresh on the self-same cause
of action. After withdrawal of the said suit, the plaintiff has filed the
present suit on 5th March, 2024. The earlier suit was not before the
Commercial Division. The said suit was filed before the Ordinary
Original Civil Jurisdiction.
33. Section 12A of the Commercial Courts Act, 2015 reads as follows:
"12-A. Pre-Institution Mediation and
Settlement.-(1) A suit, which does not contemplate
any urgent interim relief under this Act, shall not be
instituted unless the plaintiff exhausts the remedy
of pre-institution mediation in accordance with such
manner and procedure as may be prescribed by
rules made by the Central Government.
(2) The Central Government may, by
notification, authorize the Authorities constituted
under the Legal Services Authorities Act, 1987 (39
of 1987), for the purpose of pre-institution
mediation.
NOTIFICATION
Noti. No. S.O. 3232 (E), dated July 3,
2018.- In exercise of the powers conferred by sub-
section (2) of Section 12-A of the Commercial Courts
Act, 2015, the Central Government hereby
authorizes the State Authority and District
Authority constituted under the Legal Services
Authorities Act, 1987 (39 of 1987), for the purpose
of pre-institution mediation and settlement under
Chapter IIIA of the Commercial Courts Act, 2015.
(3) Notwithstanding anything contained in the
Legal Services Authorities Act, 1987 (39 of 1987),
the Authority authorised by the Central
Government under sub-section (2) shall complete
the process of mediation within a period of three
months from the date of application made by the
plaintiff under sub-section (1):
Provided that the period of mediation may be
extended for a further period of two months with
the consent of the parties:
Provided further that, the period during which
the parties remained occupied with the pre-
institution mediation, such period shall not be
computed for the purpose of limitation under the
Limitation Act, 1963 (36 of 1963).
(4) If the parties to the commercial dispute
arrive at a settlement, the same shall be reduced
into writing and shall be signed by the parties to
the dispute and the mediator.
(5) The settlement arrived at under this section
shall have the same status and effect as if it is an
arbitral award on agreed terms under sub-section
(4) of section 30 of the Arbitration and Conciliation
Act, 1996 (26 of 1996).]."
34. In paragraph 25 of the plant, the plaintiff has made an averment for
dispensation of leave under Section 12A of the Commercial Courts Act,
2015 which reads as follows:
"25. Under the facts and circumstances, it is
most humbly submitted before this Hon'ble Court
that the plaintiff be exempted from the requirement
of Section 12A of the Commercial Courts Act, 2015
to exhaust the remedy of pre-institution mediation
as the plaintiff most humbly prays before this
Hon'ble Court that in the instant facts and
circumstances, there is an urgency for immediate
order of injunctions to prevent multiplicity of judicial
proceedings."
35. The plaintiff to obtain dispensation of the requirement of Section 12A of
the Commercial Courts Act, 2015, has made following averments in
paragraphs 18 and 20 in the plaint which reads as follows:
"18. The Plaintiff states that on and from the
first week of February, 2024 the plaintiff was
confronted with unwarranted harassments from
unknown/unidentified men with their sole motive
to disposes him from the Schedule - B property
such actions took place on various occasions
thereafter. Subsequently, the plaintiff while under
the constant threat of being forcefully evicted from
the Schedule B property by the local miscreants
lodged a complaint before the Burtolla Police
Station on 28.02.2024 elaborately intimating about
the prevailing situation. Photocopy of the complaint
dated 28.02.2024 is annexed hereto and marked
as "N".
20. On one hand, the defendant nos.1 to 5
were refusing and/or delaying the execution of the
deed of conveyance in favour of the plaintiff on one
pretext or the other and on the other, the joint
owners of the Schedule-A property through the
defendant no.8 are surreptitiously proceeding with
the completion of the formalities of obtaining all
statutory clearances and finalization of the
sanctioned plan for constructing the proposed high-
rise building at the Schedule-A property. The
plaintiff states that in the event the defendant no.8
succeeds in getting all the statutory clearances and
obtaining the sanctioned plan in respect of the
proposed high-rise multistoried building to be
constructed in the Schedule-A property, the plaintiff
will suffer further prejudice and loss."
36. The defendant nos. 3, 4 and 5 in paragraph 9 of the application being
G.A. No. 2 of 2024 have made the following statement for revocation of
leave under Section 12A of the Commercial Courts Act, 2015:
"9. The request for execution of conveyance
made by the plaintiff and the denial thereof being
the last cause of action amongst the bundle of facts
pleaded in the plaint as constituting the cause of
action having arose upon receipt of the letter dated
12th May, 2023 it is apparent the plaintiff have
chosen to wait for around ten (10) months to file the
instant suit on before this Hon'ble Court on or
around 5th March, 2024. It is thus evident from the
averments in the plaint that there was no
circumstance which necessitated any urgent
interim relief to be claimed by the plaintiff in the
instant suit. The plaintiff was therefore statutorily
obliged to exhaust the remedy of pre-institution
mediation in accordance with the manner and
procedure as prescribed by the rules in terms of
Section 12A of the Commercial Courts Act, 2015."
37. In the said paragraph, the defendant nos. 3, 4 and 5 have not made any
averment/statement that the plaintiff after withdrawal of the previous
suit has waited for considerable time within which the remedy of
mediation could have been exhausted. In the case of National Textile
Corporation Limited Vs. Nareshkumar Badrikumar Jagad and
Others reported in (2011) 12 SCC 695, the Hon'ble Supreme Court
held that:
"12. Pleadings and particulars are necessary
to enable the court to decide the rights of the
parties in the trial. Therefore, the pleadings are
more of help to the court in narrowing the
controversy involved and to inform the parties
concerned to the question in issue, so that the
parties may adduce appropriate evidence on the
said issue. It is a settled legal proposition that "as
a rule relief not founded on the pleadings should
not be granted". A decision of a case cannot be
based on grounds outside the pleadings of the
parties. The pleadings and issues are to ascertain
the real dispute between the parties to narrow the
area of conflict and to see just where the two sides
differ. (Vide Trojan & Co. v. Nagappa
Chettiar ], State of Maharashtra v. Hindustan
Construction Co. Ltd. and Kalyan Singh
Chouhan v. C.P. Joshi."
38. Considering the above, this Court finds that the defendant nos. 3, 4
and 5 have not raised the said issue in their application but only
argued verbally and filed written notes by raising the said issue, thus
this Court is of the view that the said issue cannot be decided as the
same is not raised in the pleading and the plaintiff did not get an
opportunity to deal with the said contention of the defendants.
39. As per the contention of the defendants that cause of action arose on
12th May, 2023 but the plaintiff has filed the suit on 5th March, 2024
after the period of 10 months, thus there is no circumstances which
necessitated any urgent interim relief. The plaintiff has initially filed a
suit being C.S. No. 231 of 2023 before the Non-Commercial Division
and when the plaintiff realized that the suit filed by the plaintiff is
commercial in nature, the plaintiff has withdrawn the suit on 24th
January, 2024 with the liberty to file afresh on the same cause of action
and the plaintiff has filed the present suit.
40. In paragraph 18 of the suit, the plaintiff has made out a case that on
first week of February, 2024, the plaintiff was confronted with
unwarranted harassments from unknown and unidentified men with
the sole motive to disposes the plaintiff from the suit property. It is also
stated that such action took place on various occasions and thereafter
the plaintiff received constant threat of being forcefully evicted from the
suit premises. In paragraph 20 of the plaint also the plaintiff has stated
that by delaying the execution of Deed of Conveyance in favour of
plaintiff, the defendant no. 8 is proceeding with completion of the
formalities of obtaining all statutory clearances and finalization of the
sanctioned plan for construction of high-rise building in the suit
scheduled property.
41. In the case of Yamini Manohar Vs. T.K.D. Keerthi reported in 2023
SCC OnLine SC 1382, the Hon'ble Supreme Court held that:
"The words 'contemplate any urgent interim
interim relief in Section 12A(1) of the Commercial
Courts Act, with reference to the suit, should be
read as conferring power on the court to be
satisfied. They suggest that the suit must
"contemplate", which means the plaint, documents
and facts should show and indicate the need for an
urgent interim relief. This is the precise and limited
exercise that commercial courts will undertake, the
contours of which have been explained in the
earlier paragraph(s). This will be sufficient to keep
in check and ensure that the legislative object/
intent behind the enactment of Section 12A of the
Commercial Courts Act is not defeated."
42. In the case of Gavrill Metal Pvt. Ltd. Vs. Maira Fabricators Pvt. Ltd.
reported in 2023 SCC OnLine Cal 2443, the Division Bench of this
Court held that:
"16. The legislature, in my opinion, has used
the expression "contemplated" to express the
intention that an interim relief may be required at
the time of filing of the suit or may be required any
time the defendant expresses an intention to do
some act to defeat the decree to be passed.
17. So, the test, in my opinion, is not whether
an urgent interim relief is immediately required but
whether the averments in the plaint point to a
situation where even before expiry of three months,
the plaintiff may have the need to obtain interim
relief."
43. In the case of Shristi Infrastructure Development Corporation
Limited Vs. Sarga Hotel Private Limited and Another reported in
2024 SCC OnLine Cal 7817, the Hon'ble Division Bench of this Court
held that:
"32. Please note the wording of 12A(1). The
legislature does not mention "plaint". It uses the
word "suit". It employs the word "contemplation".
Hence it avoids such words as "averments or
statements in the plaint". In other words, the
legislature does not say that from the statements or
averments in the plaint urgent reliefs obtainable by
the plaintiff should be apparent. I would interpret
the Section as suggesting that ifat the time of
presentation of the plaint before the judge from the
averment in the plaint and an affidavit to be filed
by the plaintiff it would appear that in the
contemplation of the plaintiff a situation for urgent
relief might arise in the period when mediation has
to be undergone, the court may allow the plaintiff to
institute the suit without mediation.
33. On the basis of the declaration that
urgent relief is contemplated, the plaintiff should be
allowed to present the plaint. The court should not
ordinarily interfere with such assertion unless it is
shown to be palpably erroneous or mala fide. Once,
the plaintiff is allowed to file a suit without pre-
litigation mediation the discretion of the court
should not be allowed to be interfered with at a
later stage. Otherwise the proceedings are likely to
become very dilatory. Even after filing of the suit
the parties can be referred to mediation, if the facts
so warrant."
44. Recently the Hon'ble Division Bench of this Court has passed a
judgment in the FMAT No. 3 of 2025 in the case of Asa International
India Microfinance Ltd. vs. Northern ARC Capital Ltd. & Anr.
wherein the Hon'ble Court held that paragraphs 10 and 11:
"10. In this context, the legislative intent of
the phrase "an urgent relief" and the 7 expression
"contemplate" are to be understood and applied.
11. Contemplation thus would not mean an
instant immediacy but the prejudice and the
irreparable loss and injury that the plaintiff is likely
to suffer if the plaintiff is made to wait for pre-
litigation mediation. The court has to examine
whether the facts and circumstances justify a
genuine apprehension as opposed to a camouflage
of an irreparable injury the plaintiff is likely to
suffer."
45. The plaintiff has filed the present suit before this Court with the prayer
for urgent interim relief. The plaintiff has filed the suit for Specific
performance of Contract. Though the cause of action as mentioned in
the plaint arose since the month of December, 2014 till 3rd October,
2023 when the plaintiff has lastly issued notice to the defendants for
execution of the conveyance deed. Subsequently, the plaintiff has filed
the suit before the Ordinary Original Civil Jurisdiction of this Court but
when the plaintiff realized that the nature of the suit is commercial, the
plaintiff has withdrawn the suit on 24th January, 2024 with the liberty
to file afresh and this suit is filed on 5th March, 2024. In the plaint, the
plaintiff has made out a case that in the month of February, 2024 some
unknown and unidentified persons have tried to disposes the plaintiff
from the suit property and subsequently also threatened the plaintiff
being forcibly evict the plaintiff from the suit property and the plaintiff
has also made complaint to the police authority. The plaintiff has also
made out a case for urgent interim relief on the allegation that the
defendant no. 8 is proceeding with the completion of the formalities of
obtaining all statutory clearances and finalization of the sanctioned
plan for construction of high-rise building at the scheduled property.
46. Considering the above, this Court finds that it is the specific case of the
plaintiff that the unknown persons are trying to disposes the plaintiff
from the suit property illegally and also obtaining clearance from
authorities for finalizination of sanction plan for construction of high-
rise building and if the plaintiff will go for pre-institution mediation
process, there is evey chance that in the mean time, the defendants will
dispose the plaintiff from the premises and will start raising
construction over the suit property for which the plaintiff will suffer
irreparable loss and injury.
47. This Court did not find any reasons to revoke the dispensation of
Section 12A of the Commercial Courts Act, 2015 granted to the plaintiff
at the time of presentation of plaint.
48. In view of the above, G.A. (Com) No. 2 of 2024 is dismissed.
(Krishna Rao, J.)
