Calcutta High Court
Karnani Properties Limited vs J.S. India Private Limited on 28 January, 2025
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
G.A. No. 2 of 2021
In
CS-COM No. 253 of 2024
(Old No. CS 60 of 2021)
Karnani Properties Limited
Versus
J.S. India Private Limited
Mr. Sabyasachi Choudhury, Sr. Adv.
Mr. Shounak Mukhopadhyay
Mr. Neelesh Choudhury
Ms. Anuradha Poddar
... For the plaintiff.
Mr. Jishnu Chowdhury, Sr. Adv.
Ms. Enakshi Saha
Mr. Satrajeet Sen
Ms. Somali Mukhopadhyay
Ms. Shilpa Das
... For the defendant.
2
Hearing Concluded On : 14.01.2025
Judgment on : 28.01.2025
Krishna Rao, J.:
1. The plaintiff has filed the present application being G.A. No. 2 of 2021
in CS (Com) No. 253 of 2024 (Old No. CS 60 of 2021) under Order XIIIA
of the Code of Civil Procedure, 1908 for summary judgment.
2. The plaintiff has filed the suit praying for eviction and recovery of khas
possession of the suit property and mesne profit. The plaintiff is the
owner of "Karnani Mansion" situated at premises nos. 21, 23, 25A,
25B, 27A, 27B, 29, 31, 33, 35, 37, 39, 43, 45, 47, 55 and 57 situated at
Park Street, Kolkata-700016 including the suit property being Shop
nos. "E" and "F" measuring an area of 2,200 sq.ft. including mezzanine
floor measuring an area of 500 sq.ft.
3. The Directors and shareholders of the defendant company, namely,
Sanjay Kumar Shaw and Rajesh Kumar Jaiswal were earlier in their
individual capacities, inducted into the suit property as tenants by the
plaintiff. The plaintiff has initiated an Ejectment Suit against Shri
Sanjay Kumar Shaw and Rajesh Kumar Jaiswal in the year 2005 before
the Learned Court of City Civil Court at Calcutta.
4. Mr. Sabyasachi Choudhury, Learned Senior Advocate representing the
plaintiff submits that during the pendency of the ejectment suit before
the Learned City Civil Court, Calcutta, Shri Shaw and Jaiswal
surrendered their tenancy to the plaintiff by a letter dated 17th January,
2018 and requested for withdrawal of the ejectment suit. He submits
that by virtue of the said surrender of tenancy, the ejectment suit lost
its force and the plaintiff had undertaken to withdraw the said
ejectment suit.
5. Mr. Choudhury submits that only after surrender of the tenancy by
Shri Shaw and Shri Jaiswal, the defendant company controlled by Shri
Shaw and Jaiswal was inducted as monthly tenant in the suit property
on 1st February, 2018 and the terms of the tenancy of defendant were
recorded in an unregistered and insufficiently stamped instrument.
6. Mr. Choudhury submits that the defendant has admitted the jural
relationship between the parties as landlord and tenant by paying
monthly rent of Rs. 59,000/- including GST in respect of the suit
property. He submits that the defendant is a monthly tenant under
Transfer of property Act, 1882 and the plaintiff has chosen not to rely
upon the unregistered instrument in this suit.
7. Mr. Choudhury submits that the plaintiff has issued notice to the
defendant under Section 106 of the Transfer of Property Act, 1882 on
2nd January, 2020 to quit and the same was duly received by the
defendant but inspite of receipt of the notice, the defendant has not
vacated the premises. He submits that initially, the plaintiff has filed
the suit against the defendant on the basis of the notice under section
106 of the Transfer of Property Act, 1882 before the Regular Division of
this Court being C.S. No. 164 of 2020 but pursuant to the objection
raised by the defendant, the plaintiff has withdrawn the said suit and
filed the present suit before this Court as Commercial Suit.
8. Mr. Choudhury submits that the tenancy of the defendant is terminated
on expiry of 18th January, 2020 when the period of 15 days from the
date of receipt of notice dated 3rd January, 2020 expired. He submits
that the defendant instead of vacating the premises and handing over
the same to the plaintiff, the defendant continued and still continuing
with the suit property as illegal trespasser since 19th January, 2020.
9. Mr. Jishnu Chowdhury, Learned Senior Advocate representing the
defendant submits that initially when the plaintiff has filed the suit as
regular suit, the defendant raised objection that the suit filed by the
plaintiff is a commercial dispute and accordingly the plaintiff has
withdrawn the suit and filed before this Court as Commercial suit but
subsequent to the judgment passed in the case of Deepak Polymers
Vs. Anchor Investments Pvt. Ltd. reported in 2021 SCC OnLine
4323, the suit cannot be said to be a commercial suit and is not
maintainable before this Court. He further submits that this Court by a
judgment dated 1st October, 2024 passed in the case of T.E. Thomson
& Company Limited Vs. Swarnalata Chopra Nee Kapur & Anr.
reported in 2024 SCC OnLine Cal 8985 referred the issue to the
Larger Bench for consideration and the issue yet to settle the question
framed by this Court, thus no decree can be passed in the present
application.
10. Mr. Chowdhury submits that the plaintiff has filed the suit against
Sanjay Kumar Shaw and Rajesh Kumar Jaiswal as tenants before the
Learned City Civil Court at Calcutta but the plaintiff has not made any
averment in the present plaint with regard to the said suit or the
surrender of their tenancy. He submits that without pleading and
proving creation of new tenancy in favour of the defendant, it cannot be
said that the defendant was tenant whose tenancy has been
determined.
11. Mr. Chowdhury submits that as per the case of the plaintiff, the
defendant was inducted as tenant on 1st February, 2018 but nothing
has been shown and no document has been produced to support the
said fact. He submits that the plaintiff has suppressed it's pending
eviction suit before the Learned City Civil Court at Calcutta. He submits
that the suit filed by the plaintiff before the Learned City Civil Court at
Calcutta, is still pending and tenancy of Sanjay Kumar Shaw and
Rajesh Kumar Jaiswal is alive. He submits that during the pendency of
the tenancy, the plaintiff could not have created fresh tenancy in favour
of the defendant.
12. Mr. Chowdhury submits that the plaintiff has not disclosed documents
in the plaint or in the application but has disclosed documents in the
affidavit-in-reply but Order XI, Rule 1 and Rule 5 of the Code of Civil
Procedure, 1908 as amended by the Commercial Courts Act, 2015
requires the plaintiff to disclose all documents with the plaint and
otherwise to seek special leave from this Court but the plaintiff has not
sought for any leave from this Court.
13. Mr. Chowdhury submits that the plaintiff has relied upon the purported
document of surrender and balance sheets but the defendant has got
no opportunity to deal with the said documents as the plaintiff first
time disclosed the said documents in affidavit-in-reply and handed over
at the time of hearing of the present application.
14. Mr. Chowdhury in support of his submissions relied upon the following
judgments:
i. Deepak Ploymers Pvt. Ltd. -vs- Anchor
Investments Pvt. Ltd. reported in 2021 SCC
OnLine Cal 4323.
ii. Soumitra Sen & Ors. vs. Indian Oil Corporation
Ltd. reported in 2023 SCC OnLine Cal 2470.
iii. Jayanta Krishna Datta & Anr. vs. Indian Oil
Corporation Limited reported in 2023 SCC OnLine
Cal 6421.
iv. T.E. Thomson & Company Limited vs. Swarnalata
Chopra Nee Kapur & Anr. reported in 2024 SCC
OnLine Cal 8985.
v. Jyoti Biswas & Ors. -vs- Raj Kumar Ghosh & Ors.
reported in 2022 SCC OnLine Cal 890.
vi. Ajay Kumar Mishra vs. State of West Bengal &
Ors. reported in 2023 SCC OnLine Cal 4747.
vii. Shiva Nand Pandey vs. Bhagwan Das Harlalka &
Ors. reported in AIR 1999 Cal 321.
15. The plaintiff has filed the present application under Order XIIIA of the
Code of Civil Procedure, 1908 as amended under the Commercial
Courts Act, 2015 for summary judgment. The plaintiff prays for
summary judgment on the ground that the defendant being the
monthly tenant of the plaintiff with respect to the suit property since 1st
February, 2018 on a monthly rent of Rs. 50,000/- per month excluding
GST but the plaintiff by issuing a notice dated 2nd January, 2020 under
Section 106 of the Transfer of Property Act, 1882 terminated the
contract and called upon the defendant to quit and vacate the premises
but the defendant even after receipt of the notice, failed to quit and
handover the possession of the suit premises to the plaintiff. The
plaintiff relied upon the rent receipt dated 30th November, 2019 to prove
that the defendant paid monthly rent of Rs. 50,000/- in addition to GST
with respect to the suit premises and the notice issued under Section
106 of the Transfer of property Act, 1882.
16. The defendant resisted the application filed by the plaintiff firstly on the
ground that the suit filed by the plaintiff is not commercial in nature
and this Court cannot pass any summary judgment as prayed for by
the plaintiff. Initially, plaintiff has filed the suit in Regular Division of
this Court being C.S. No. 60 of 2021 (Karnani Properties Limited Vs.
J.S. India Private Limited). In the said suit, the defendant by way of an
application being G.A. No. 2 of 2021 raised objection that the dispute
between the parties are commercial in nature within the meaning of the
Commercial Courts Act, 2015, particularly Section 2(1)(c)(vii) of the Act
of 2015. At the time of hearing of the said application, both the parties
agreed that the dispute involved comes within the meaning of Section
2(1)(c)(vii) of the Act of 2015, accordingly, the plaintiff has withdrawn
the suit with the liberty to file the same before the appropriate forum.
Now the defendant relied upon the judgment in the case of Deepak
Polymers (supra) wherein the Hon'ble Coordinate Bench of this Court
held that:
"34. Hence, the suits squarely arise out of a
statutory right conferred by Section 106 of the
Transfer of Property Act, having no direct nexus
with the lease agreements in respect of the
immovable properties concerned. Thus, the pre-
condition of the applicability of Section 2(1)(c)(vii),
that is, the emanation of the dispute out of the
lease agreement, is not satisfied in the present
suits. Thus, the secondary question as to whether
the immovable properties are used exclusively in
trade or commerce, pales into insignificance."
The contention of the defendant is that the Coordinate Bench has
passed the judgment on 24th June, 2021 subsequent to the order
passed by this Court in C.S. No. 164 of 2020 dated 23rd February,
2021. This Court while considering the case of Deepak Polymers
(supra) referred the matter to the Larger Bench in the case of T.E.
Thomson & Company Limited (supra) and the said matter is pending
before the Hon'ble Court for adjudication, thus it would not be
appropriate for this Court to decide the issue raised by the defendant in
the present suit that in terms of the order passed by the Co-ordinate
Bench in the case of Deepak Polymers (Supra), the suit is required to
be filed before the Non-Commercial Division.
17. The second issue raised by the defendant that the plaintiff has
suppressed the fact by not disclosing that the plaintiff has earlier
initiated a suit against Sanjay Kumar Shaw and Rajesh Kumar Jaiswal
for their ejectment from the suit premises before the Learned City Civil
Court at Calcutta and is still pending before the Learned Court and
only after raising the said issue in the affidavit-in-opposition, the
plaintiff has disclosed the alleged surrender letter of Sanjay Kumar
Shaw and Rajesh Kumar Jaiswal. Admittedly, either in the plaint or in
the present application, the plaintiff has not disclosed with regard to
the earlier tenancy of Sanjay Kumar Shaw and Rajesh Kumar Jaiswal
over the suit premises. The plaintiff has also not disclosed about the
pendency of the suit filed by the plaintiff against Sanjay Kumar Shaw
and Rajesh Kumar Jaiswal before the Learned City Civil Court at
Calcutta. The contention of the plaintiff that the ejectment suit pending
before the Learned City Civil Court, Calcutta lost its force as the same
was filed only against Mr. Sanjay Kumar Shaw and Rajesh Kumar
Jaiswal in their individual capacities who have surrendered their
tenancy. The letter of surrender relied by the plaintiff is not disclosed
either in the plaint or in the present application. The plaintiff has
disclosed the said surrender letter in their affidavit-in-reply.
18. The plaintiff has filed the suit in the Commercial Division. Order XI,
Rule 1 (1) to (6) of the Code of Civil Procedure, 1908 as amended under
the Commercial Courts Act, 2015 reads as follows:
"ORDER XI
DISCLOSURE, DISCOVERY AND
INSPECTION OF DOCUMENTS IN SUITS
BEFORE THE COMMERCIAL DIVISION OF A
HIGH COURT OR A COMMERCIAL COURT
1. Disclosure and discovery of
documents.-- (1) Plaintiff shall file a list of all
documents and photocopies of all documents, in its
power, possession, control or custody, pertaining to
the suit, along with the plaint, including:--
(a) documents referred to and relied on by
the plaintiff in the plaint;
(b) documents relating to any matter in
question in the proceedings, in the power,
possession, control or custody of the plaintiff, as
on the date of filing the plaint, irrespective of
whether the same is in support of or adverse to
the plaintiff's case;
(c) nothing in this Rule shall apply to
documents produced by plaintiffs and relevant
only--
(i) for the cross-examination of the
defendant's witnesses, or
(ii) in answer to any case set up by the
defendant subsequent to the filing of the
plaint, or
(iii) handed over to a witness merely to
refresh his memory.
(2) The list of documents filed with the plaint
shall specify whether the documents in the power,
possession, control or custody of the plaintiff are
originals, office copies or photocopies and the list
shall also set out in brief, details of parties to each
document, mode of execution, issuance or receipt
and line of custody of each document.
(3) The plaint shall contain a declaration on
oath from the plaintiff that all documents in the
power, possession, control or custody of the
plaintiff, pertaining to the facts and circumstances
of the proceedings initiated by him have been
disclosed and copies thereof annexed with the
plaint, and that the plaintiff does not have any
other documents in its power, possession, control or
custody.
Explanation.--A declaration on oath under
this sub-rule shall be contained in the Statement of
Truth as set out in the Appendix.
(4) In case of urgent filings, the plaintiff may
seek leave to rely on additional documents, as part
of the above declaration on oath and subject to
grant of such leave by Court, the plaintiff shall file
such additional documents in Court, within thirty
days of filing the suit, along with a declaration on
oath that the plaintiff has produced all documents
in its power, possession, control or custody,
pertaining to the facts and circumstances of the
proceedings initiated by the plaintiff and that the
plaintiff does not have any other documents, in its
power, possession, control or custody.
(5) The plaintiff shall not be allowed to rely on
documents, which were in the plaintiff's power,
possession, control or custody and not disclosed
along with plaint or within the extended period set
out above, save and except by leave of Court and
such leave shall be granted only upon the plaintiff
establishing reasonable cause for non-disclosure
along with the plaint.
(6) The plaint shall set out details of
documents, which the plaintiff believes to be in the
power, possession, control or custody of the
defendant and which the plaintiff wishes to rely
upon and seek leave for production thereof by the
said defendant."
Order XIIIA, Rule 5(2) of the Code of Civil Procedure, 1908 as
amended under Commercial Courts Act, 2015 reads as follows:
"ORDER XIII-A
Summary Judgment
1. Scope of and classes of suits to which
this Order applies. -- (1) This Order sets out the
procedure by which Courts may decide a claim
pertaining to any Commercial Dispute without
recording oral evidence.
(2) ........
(3) .........
(4) .........
5. Evidence for hearing of summary
judgment.-- (1) Notwithstanding anything in this
Order, if the respondent in an application for
summary judgment wishes to rely on additional
documentary evidence during the hearing, the
respondent must:--
(a) file such documentary evidence; and
(b) serve copies of such documentary evidence
on every other party to the application at least
fifteen days prior to the date of the hearing.
(2) Notwithstanding anything in this Order, if
the applicant for summary judgment wishes to rely
on documentary evidence in reply to the
defendant's documentary evidence, the applicant
must:--
(a) file such documentary evidence in reply;
and
(b) serve a copy of such documentary evidence
on the respondent at least five days prior to the
date of the hearing.
(3) Notwithstanding anything to the contrary,
sub-rules (1) and (2) shall not require documentary
evidence to be:--
(a) filed if such documentary evidence has
already been filed; or
(b) served on a party on whom it has already
been served."
The plaintiff has not disclosed the document that is the purported
surrender letter of Sanjay Kumar Shaw and Rajesh Kumar Jaiswal. It is
also admitted that the said document was in possession of the plaintiff
at the time of filing of the suit. The plaintiff has not obtained any leave
to produce the additional document. The plaintiff has disclosed the said
document in affidavit-in-reply.
19. The plaintiff relied upon Order XIIIA, Rule 5(2) of the CPC, 1908. The
defendant in their affidavit-in-opposition have categorically taken the
stand which are as follows:
"i) The J.S. India Private Limited shall
complete sale within 1st February, 2023.
ii) The said J.S. India Private Limited shall pay
per month Rs.50,000/- (Rupees fifty thousand only)
per month to the plaintiff on account of instalment
towards the consideration of the said sale deed for
five years which shall be Rs.30,00,000/- (Rupees
thirty lakhs only);
iii) 1% interest per year amounting to
Rs.2,16,000/- (Rupees two lacs sixteen thousand
only) to be paid monthly amounting to Rs. 18,000/-
per month till five years. The said amount shall be
paid separately every month by separate cheque
on the same day.
iv) Immediately after the expiration of five
years or in the event any time before expiry of five
years and in the event, the defendant agrees to
pay at a time the balance amount of sale
consideration money then the plaintiff shall execute
and register a sale deed in respect of the property
described in Schedule below in favour of the
defendant or its nominee, whoever is earlier. In the
event the money is paid at a time before expiry of
five years at any time then interest of 12% per
annum shall not be payable at the time of execution
and registration of the sale deed.
v) The time mentioned above was not intended
to be the essence of the contract and in the event,
the defendant fails to pay the amount within a
period of six months from the date of expiry of five
years then 50% amount paid from time to time by
the defendant to the plaintiff shall be refunded
back and 50% amount shall be forfeited and the
plaintiff shall not be liable to execute and register
the sale deed and in the event, the plaintiff refuses
to execute and register a sale deed in favour of the
defendant and the receipt of the balance
consideration money for sale of the property in
question which is described in Schedule hereunder
and/or the plaintiff refused to accept the balance
consideration money by refusing to execute and
register the sale deed then in that case the
defendant shall be entitled to file a suit for specific
performance of contract in a competent court of law
against the plaintiff.
vi) The said Rajesh Kumar Jaiswal and
Sanjay Kumar Shaw shall remain in the
possession of the suit property as tenant paying
rent of Rs.9000/- per month under the provisions of
the West Bengal Premises Tenancy Act 1997 (as
amended Upto date) till 1st February, 2023.
vii) The plaintiff shall not take any steps in the
ejectment suit pending being Ejectment Suit No. 3
of 2005 pending in the Court of 5th Small Causes
Court at Calcutta and ejectment suit shall be kept
pending so long as transaction in between the
parties hereto are completed by execution and
registration of the sale deed by acknowledging the
receipt of balance consideration money for sale of
the property described hereunder and the suit
brought by the plaintiff being Ejectment Suit No.3 of
2005 as aforesaid, shall be withdrawn
immediately after the execution and registration of
the sale deed in respect of the property in suit in
favour of the defendant and/or the defendant's
nominee."
In the present case, Order XIIIA, Rule 5(2)(a)(b) of the CPC, 1908,
is not be applicable as the plaintiff has not made out such case in the
plaint. Only when the defendant has disclosed its defence, now the
plaintiff intend to bring the said document i.e. purported surrender
letter, making out the case that Sanjay Kumar Shaw and Rajesh Kumar
Jaiswal have surrendered the suit premises before inducting the
defendant as monthly tenant. The defence raised by the defendant has
now become a triable issue.
20. The amended Order XIIIA is in keeping with the objective of The
Commercial Courts Act, 2015 for speedy disposal of high-value
commercial disputes and for providing an independent mechanism for
early resolution of such disputes. The provision presumes that the case
of the party seeking Summary Judgment is so clear and beyond any
scope of dispute that the Court has little option but to dispose of the
claim without trial, provided the Court is satisfied that the opposing
party cannot set up a credible defence warranting oral evidence. The
language of the amended Order XIIIA may be compared to the leave
granted to a defendant to defend a summary procedure and set up a
"substantial defence" in aid thereof under Order XXXVII of the CPC. The
similarity of purpose can also be found in Chapter XIIIA of the Original
Side Rules of this Court which requires a defendant to set up a "good
defence" to the claim on merits or disclose such facts as may be deemed
sufficient to entitle him to defend the claim (under Rule 6 of Chapter
XIIIA). Although the threshold of a "good defence" or "substantial
defence" has made way to the Court being satisfied that the defendant
has "no real prospect of successfully defending the claim", the
requirement of the plaintiff to establish a clear, unequivocal and
unimpeachable claim on merits - one that cannot be dislodged by the
defendant - remains.
It is not the case of the plaintiff either in the plaint or in the
present application that Sanjay Kumar Shaw and Rajesh Kumar
Jaiswal surrendered their tenancy with respect to the suit property and
thereafter the defendant company was inducted as monthly tenant in
the suit property. The plaintiff is relying upon the document of
surrender in the affidavit-in-reply but the said document is no way
connected with the suit as the plaintiff has not made out such a case in
the plaint. The plaintiff has taken the plea that due to surrender of
possession of the premises by Sanjay Kumar Shaw and Rajesh Kumar
Jaiswal, the suit pending between the plaintiff and Sanjay Kumar Shaw
and Rajesh Kumar Jaiswal lost its force but fact remains that the suit
is still pending and the defendant has taken a specific defence with
regard to the pendency of suit and non-disclosure of the alleged
surrender letter by the plaintiff either the plaint or in the present
application.
21. For seeking summary judgment, the plaintiff is under the obligation to
substantiate each of the claims by documents which could show that
the defendant cannot have any possible manner of successfully
defending the claim.
22. Once the claim is disputed, the Court is compelled to assess the
strength of claim by permitting the parties to lead evidence to prove
such claim. The right to lead evidence is a valuable right given to the
parties under the Code of Civil Procedure, 1908, which a party can only
be deprived of upon the Court to satisfy that there are compelling
reasons for taking the summary route for pronouncing judgement.
23. For the above reasons, this Court is not convinced that there are
compelling reasons for allowing the prayers of the plaintiff under the
amended order XIIIA of the Code of Civil Procedure, 1908, without
giving an opportunity to lead evidence.
24. G.A. No. 2 of 2021 is dismissed without any order as to costs.
(Krishna Rao, J.)
