Calcutta High Court
Bengal Shriram Hitech City Private ... vs Hindustan Motors Ltd. And Anr on 11 November, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APD/6/ 2025
WITH
CS/138/2022
BENGAL SHRIRAM HITECH CITY PRIVATE LIMITED
Versus
HINDUSTAN MOTORS LTD. AND ANR.
Present :
The Hon'ble Justice Debangsu Basak
-And-
The Hon'ble Justice Md. Shabbar Rashidi
For the Appellant : Mr. Jishnu Saha, Sr. Adv.
Mr. Sankarsan Sarkar, Adv.
Mr. Aditya Kanodia, Adv.
Ms. Sharfaa Ahmed, Adv.
For the Respondents : Mr. Tridib Bose, Adv.
Mr. Debjyoti Saha, Adv.
HEARD ON : 11.11.2025
DELIVERED ON : 11.11.2025
DEBANGSU BASAK, J.:-
1. Appeal is at the behest of the plaintiff and directed against the
judgement and decree dated November 29, 2023.
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2. By the impugned judgment and decree, learned Single Judge,
allowed an application seeking dismissal of the suit filed by the
appellant.
3. Learned senior Advocate appearing for the appellant submits that,
Learned Single Judge, dismissed the suit primarily on two grounds.
One of the two grounds, was per Order II Rule 2 of the Code of Civil
Procedure, 1908 and the other was that, the dispute being a
commercial dispute within the meaning of the Commercial Courts
Act, 2015, and the suit not being filed in the Commercial Division,
subsequent to the cut off date being December 11, 2020, was
barred under Section 12A of the Act of 2015.
4. Learned senior Advocate for the appellant submits that, the suit
cannot be dismissed on the ground of Order II Rule 2 of the Code of
Civil Procedure, 1908, as erroneously done by the learned Single
Judge. He submits that, the appellant filed a suit being Title Suit
No.162 of 2021 in the Court of the Learned Civil Judge (Senior
Division) at Serampore. He refers to the plaint of such suit
(hereinafter for the sake of convenience referred to as the "first
suit"). He submits that, there are two defendants in the first suit,
namely, the respondent herein as the first defendant and the State
of West Bengal as the second defendant. So far as the present suit
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is concerned, there are two defendants also. However, apart from
the respondent no.1 herein being common in the two suits, the
other defendant in the present suit is a Municipality.
5. Learned senior Advocate appearing for the appellant submits that,
the causes of action in the two suits are different. He points out
that, the appellant purchased immoveable properties from the
respondent no.1 in the present appeal for valuable consideration.
The appellant filed the first suit seeking relief with regard to the
dues that the respondent no.1 owed to the State Government and
which the appellant was forced to pay. He points out that, the
second suit is essentially under Sections 69 and 70 of the Contract
Act. Since, the respondent no.1 was not paying the Municipal rates
and taxes for the separation, the appellant paid the same. The
appellant as the plaintiff is seeking to recover the same from the
respondent no.1. He points out that, the Municipality was made
party defendant in the present suit since, the Municipality is a
proper party. The Municipality was not permitting the appellant to
continue to develop the immoveable properties since the
respondent no.1 was not paying the municipality requisite
separation fees.
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6. Learned senior Advocate appearing for the appellant submits that,
essentially, the causes of action in the two suits are different.
Parties in the two suits are different. In the first suit the second
defendant is the State of West Bengal, while, in the present suit,
the second defendant is a Municipality.
7. Relying upon (2022)16 SCC 1 (Life Insurance Corporation of
India vs. Sanjeev Builders Private Limited & Anr.) and (2015)
11 SCC 12 (Inbasagaran & Anr. Vs. S. Natarajan (Dead) Through
Legal Representatives), learned senior Advocate appearing for the
appellant submits that, the present suit cannot be dismissed under
Order II Rule 2 of the Code of Civil Procedure since, the two suits
are not based on the same cause of action.
8. Learned senior Advocate appearing for the appellant submits that,
all disputes of commercial nature cannot be brought under the
purview of the Commercial Courts Act, 2015. He refers to the
definition of a commercial dispute appearing in Section 2(1)(c) of
the Act of 2015. He submits that, the nature of transaction between
the appellant and the respondent no.1 does not fall within any of
the definitions of a commercial dispute as enshrined in Section
2(1)(c) of the Act of 2015.
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9. Learned senior Advocate appearing for the appellant submits that,
the immovable properties concerned, belong to the respondent
no.1. Out of a large portion of the land owned by the respondent
no.1, a portion was sold to the appellant by the respondent no.1.
The respondent no.1 was obliged to ensure that all rates and taxes
in respect of the immoveable properties were paid. Since the
respondent no.1 failed to discharge its obligation to pay rates and
taxes to the respondent no.2 in respect of the entirety of the land
owned by the respondent no.1, the respondent no.2 was not
allowing the appellant to proceed with the development of the
immoveable properties concerned. Secondly, the appellant paid the
Municipal rates and taxes which included the portion which the
respondent no.1 was liable to pay. The appellant is seeking to
recover such portion which was the liability of the respondent no.1
payable to the respondent no.1. Therefore, the present suit cannot
be said to involve any commercial dispute within the meaning of
the Act of 2015.
10. Learned Advocate appearing for the respondent no.1 submits
that, the appellant filed two civil suits against the respondent no.1.
Both the suits emanate out of a transaction of sale of the same
immoveable property by the respondent no.1 to the appellant. He
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submits that, the cause of action of the present suit arose and was
subsisting at the time when the first suit was filed. Since the
appellant did not include the reliefs sought for in the first suit, the
present suit is barred under Order II Rule 2 of the Code of Civil
Procedure, 1908.
11. Learned Advocate appearing for the respondent no.1 submits
that, although the appellant applied for leave under Order II Rule 2
of the Code of Civil Procedure, 1908, in the first suit nevertheless,
the appellant did not proceed with such application. As on date, the
Court in which the first suit is pending, did not grant any relief
under Order II Rule 2 of the Code of Civil Procedure, 1908. At the
time when the present suit was presented before the High Court,
no relief under Order II Rule 2 of the Code of Civil Procedure, 1908
was granted by the Court in which the first suit was pending.
12. Learned Advocate appearing for the respondent no.1 refers to
the Act of 2015. He submits that, the present suit, comes within
the purview of Section 2(1)(c)(vii) of the Act of 2015. He submits
that, since, the present suit was claimed to be presented
subsequent to December 11, 2020, and since, no leave under
Section 12A of the Act of 2015 was obtained, the present suit was
barred by law. In support of his contention that the appellant was
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required to obtain leave under Section 12A of the Act of 2015, since
the suit was a commercial suit and filed subsequent to December
11, 2020, he relies upon AIR 2021 Cal. 190 (Laxmi Polyfab Pvt.
Ltd. vs. Eden Realty Ventures Pvt. Ltd. & Another).
13. Learned Advocate appearing for the respondent no.1 relies
upon (2022) 10 SCC 1 (Patil Automation Private Limited &
Others vs. Rakheja Engineers Private Limited) in support of the
contention that, Section 12A of the Act of 2015 is mandatory and
that, any suit instituted violating the mandate of Section 12A must
be visited with rejection of the plaint under Order VII Rule 11, as
rightly done by the Learned Single Judge.
14. Relying upon (2020) 15 SCC 585 (Ambalal Sarabhai
Enterprises Limited vs. K.S. Infraspace LLP & Another), learned
Advocate appearing for the respondent no.1 submits that, the
immoveable property concerned was used for commercial purpose
at the time of institution of the suit. He submits that a special
purpose vehicle namely, the appellant was incorporated for the
purpose of developing the immoveable property concerned.
Therefore, by all stretch of imagination, the land was actually used
for commercial purpose and therefore, comes within the meaning of
Section 2(1)(c)(vii) of the Act of 2015.
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15. The appellant is a special purpose vehicle incorporated to
purchase a portion of the immoveable properties belonging to the
respondent no.1 to build a township. This is the pleading in the
plaint of the present suit.
16. Prior to the present suit, the appellant filed a suit on August
16, 2021 before the learned Civil Judge (Senior Division) at
Serampore being Title Suit No. 162 of 2021. In the first suit, there
are two defendants. The first defendant is the respondent no.1
while the second defendant is the State of West Bengal. The first
suit is a suit for declaration and injunction and for a money decree.
Cause of action of the first suit, as appearing from a careful reading
of the plaint of the first suit is that, the respondent no.1 failed to
discharge certain obligations to the State of West Bengal and that,
the appellant paid for the same. The appellant seeks to recover
such payments made to the State of West Bengal, defendant no.2
in the first suit, from the respondent no.1, which is the defendant
no.1 in the first suit. In this regard also, the appellant as the
plaintiff sought declaration and injunction against the defendants
in the first suit.
17. The present suit was instituted on May 26, 2022 after obtaining
leave under Clause 12 of the Letters Patent, 1865. In the second suit,
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there are two defendants. The Municipality in which, the land purchased
by the appellant from the respondent no. 1, is situated, is defendant no.
2 in the present suit. State of West Bengal is not a party to the second
suit.
18. In the present suit, appellant seeks a money decree against the
respondent no. 1. Cause of action appearing from the plaint of the
present suit, on constructive reading of the same, is that, the appellant
was made to pay by the respondent no. 2, liabilities that the respondent
no. 1 owed to the Municipality, for the purposes of the Municipality
granting permission to the appellant. Essentially, appellant seeks
reimbursement of such payment made on behalf of the respondent no. 1
to the respondent no. 2 in the present suit.
19. Relief sought for in the two suits are different. Parties to the two
suits are different. Causes of action in the two suits are different.
20. Sanjeev Builders Private Limited and Another (supra) considers
provisions of Order II Rule 2 of the Code of Civil Procedure, 1908 and is
of the view that if the two suits and the relief claimed therein are based
on the self-same cause of action then the subsequent suit will become
barred under Order II Rule 2 of the Code of Civil Procedure, 1908.
21. Inbasagaran & Another (supra) considers Order II Rule 2 of the
Code of Civil Procedure, 1908 and is of the view that, if the two suits and
the relief claimed therein are based on the same cause of action then
only the subsequent suit will become barred under Order II Rule 2 of the
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Code of Civil Procedure, 1908. It explains that a cause of action consists
of a bundle of facts which will be necessary for the plaintiff to prove in
order to obtain a relief from a Court. It also explains that, when, the
cause of action of the two suits are different and distinct and the
evidence to support the relief in the two suits are also different then the
provision of Order II Rule 2 of the Code of
Civil Procedure, 1908 will apply. It notices various authorities including
one that of the Privy Council reported at 75 IA 121 (Mohd. Khalil Khan v.
Mahabub Ali Mian).
22. It would be apposite to refer to the relevant portion of the Mohd.
Khalil Khan (supra), which is as follows :
"The principles laid down in the cases thus far discussed may be thus
summarised:
(1) The correct test in cases falling under Order 2 Rule 2, is whether the
claim in the new suit is in fact founded upon a cause of action distinct from that
which was the foundation for the former suit. (Moonshee Buzloor Ruheem v.
Shumsoonnissa Begum¹)
(2) The cause of action means every fact which will be necessary for the
plaintiff to prove if traversed in order to support his right to the judgment. (Read v.
Browns)
(3) If the evidence to support the two claims is different, then the causes of
action are also different. (Brunsden v. Humphrey)
(4) The causes of action in the two suits may be considered to be the same
if in substance they are identical. (Brunsden v. Humphrey?)
(5) The cause of action has no relation whatever to the defence that may be
set up by the defendant nor does it depend upon the character of the relief
prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the
Court to arrive at a conclusion in his favour'. (Chand Kour v. Partab Singh10) This
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observation was made by Lord Watson in a case under Section 43 of the Act of
1882 (corresponding to Order 2 Rule 2), where the plaintiff made various claims
in the same suit.'
23. Since, we are of the view that, cause of action in the two suits are
different, and that, evidence required to establish the two claims are
different, on the test laid down in Mohd. Khalil Khan (supra), the second
suit cannot be said to be barred under Order II Rule 2 of the Code of Civil
Procedure, 1908.
24. The present suit was instituted on May 26, 2022 after obtaining
leave under Clause 12 of the Letter's Patent, 1865. The present suit was
not filed in the commercial division.
25. All disputes which are commercial in nature, does not come within
the purview of a commercial dispute within the meaning of Section 2(1)(c)
of the Act of 2015, unless, such commercial dispute comes within the
various classifications of commercial disputes enumerated therein.
26. It is the contention of the respondent no. 1 that the dispute
contained in the present suit is a commercial dispute within the meaning
of Section 2(1)(c)(vii) of the Act of 2015.
27. Section 2(1)(c)(vii) of the Act of 2015 is as follows:
"S.2. Definitions. - (1) In this Act, unless the context otherwise requires, -
....(c) 'commercial dispute' means a dispute arising out of -
...(vii) agreements relating to immovable property used exclusively in trade
or commerce. ...."
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28. Sub-section (vii) of Section 2(1)(c) of the Act of 2015 was
considered in Ambalal Sarabhai Enterprises Limited (supra). It held as
follows :
"A dispute relating to immovable property per se may not be a commercial
dispute. But it becomes a commercial dispute, if it falls under sub-clause (vii) of
Section 2(1)(c) of the Act viz. "the agreements relating to immovable property used
exclusively in trade or commerce". The words "used exclusively in trade or
commerce" are to be interpreted purposefully. The word "used" denotes "actually
used"
29. Ambalal Sarabhai Enterprises Limited (supra) noted that a dispute
relating to immovable property per say is not a commercial dispute. It
needs to fall within sub-clause (vii) of section 2(1)(c) of the Act of 2015 to
be one.
30. In the facts and circumstances of the present suit, the dispute
does not relate to an immovable property per say. Title to the immovable
property is not in dispute. Appellant seeks to be reimbursed for the
sums that the appellant was made to pay by the respondent no.2 on
behalf of respondent no.1, from the respondent no.1 in the present suit.
Such a dispute to our understanding, does not come within Section
2(1)(c) of the Act of 2015.
31. Laxmi Polyfab Pvt. Ltd. (supra) held that, obtaining leave under
Section 12A of the Act of 2015 was mandatory in respect of suits filed in
the Commercial Division subsequent to December 11, 2020 and that, in
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the event, such leave was not obtained, such suit was liable to be
dismissed.
32. Patil Automation Pvt. Ltd. and Another (supra) held Section 12A of
the Act of 2015 to be mandatory and that, if leave was not obtained
thereunder, in respect of suits filed in the Commercial Division,
subsequent to the order passed by the High Court, the same was liable to
rejection under Order VII Rule 11 of the Code of Civil Procedure, 1908.
33. Since the present suit is not falling within the meaning of a
commercial dispute under the Act of 2015, the same could not be filed in
the commercial division and, therefore, the rigors of Section 12A of the
Act of 2015 are not attracted.
34. In view of the discussions above, we allow the present appeal. The
impugned judgment and order is set aside.
35. APDT/6/2024 along with connected application, if any, stands
disposed of without any order as to costs.
(DEBANGSU BASAK, J.)
36. I agree.
(MD. SHABBAR RASHIDI, J.)
S.Nath/S.Mandi/pkd./DB.
