[Cites 15, Cited by 0]
Calcutta High Court
Dipankar Ghosh & Anr vs Cesc Limited on 28 November, 2025
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
Presents
The Hon'ble Justice Krishna Rao
G.A. (Com) No. 5 of 2025
In
C.S. (Com) No. 379 of 2024
(Old No. CS 108 of 2022)
Dipankar Ghosh & Anr.
Versus
CESC Limited
Mr. Soumabho Ghose
Ms. Tiana Bhattacharyya
Mr. Shayak Mitra
Mr. Anshumala Bansal
Mr. R Chowdhury
Mr. Bhargav Verma
... For the plaintiffs.
Mr. Rupak Ghosh
Mr. Zulfiquar Ali Al Quaderi
Mr. Saptarshi Mandal
Ms. Tiasha Gupta
... For the defendant.
2
Hearing Concluded On : 28.10.2025
Judgment on : 28.11.2025
Krishna Rao, J.:
1. The defendant has filed the present application praying for rejection of
plaint on the ground that the plaintiffs have filed the suit before the
Commercial Division after issuance of notice under Section 106 of the
Transfer of Property Act, 1882. As per the judgment passed by the
Coordinate Bench of this Court in the case of Deepak Polymers
Private Limited Vs. Anchor Investments Private Limited reported in
2021 (1) Calcutta Law Times 129, if the suit for eviction is based on
a notice under Section 106 of the Transfer of Property Act, 1882, the
same arises out of the statutory right and having no direct nexus with
the lease agreements in respect of immovable property is concern.
2. Mr. Rupak Ghosh, Learned Advocate representing the defendant
submits that in paragraph 10 of the plaint, it is the specific case of the
plaintiffs that the plaintiffs have issued Advocate notice dated 24th
March, 2022, under Section 106 of the Transfer of Property Act,1882,
calling upon to vacate and to hand over peaceful possession of the suit
property. He submits that from the said averments, it is clear that the
suit is based upon the notice under Section 106 of the Transfer of
Property Act, 1882.
3. Mr. Ghosh submits that though subsequently in the year 2024, this
Court dissenting with the order passed by the Coordinate Bench in the
case of Deepak Polymers Private Limited (supra) referred to the
Hon'ble the Chief Justice of this Court and the same was referred to the
Hon'ble Division Bench of this Court and the Hon'ble Division Bench
has held that lease agreement is to be looked into and to consider for
deciding the nature and character of jural relationship of the landlord
and tenant between the parties. He submits that the judgment passed
by the Hon'ble Division Bench is not having any prospective effect. He
submits that when the plaintiffs have filed the suit, at the relevant
point of time the judgment in the case of Deepak Polymers Private
Limited (Supra) was in force, thus the plaintiffs ought to have filed the
suit before the Non-Commercial Division. The judgment passed in the
case of T.E. Thomson and Co. Ltd. vs. Swarnalata Chopra Nee
Kapur & Another by the Hon'ble Division Bench dated 18th June,
2025, is not applicable in the present suit as the said judgment is not
having prospective effect.
4. In support of his submission, he has relied upon the judgment in the
case of P.V. George and Ors. Vs. State of Kerala and Ors. reported
in (2007) 3 SCC 557 and submits that the Law declared by a Court
will have a retrospective effect if not otherwise stated to be so
specifically.
5. Mr. Ghosh further relied upon the judgment in the case of Kanishk
Sinha and Another Vs. The State of West Bengal and Another
passed in Special Leave Petition (Criminal) Nos. 8609-8614 OF
2024 dated 27th February, 2025, wherein the Hon'ble Supreme Court
held that the judgment of the Court will always be retrospective in
nature unless the judgment itself specifically states that the judgment
will operate prospectively.
6. Mr. Soumabho Ghose, Learned Advocate representing the plaintiffs
submits that it is the specific case of the plaintiffs that on 18th June,
1956 by way of registered deed of lease, the defendant was inducted as
a lessee by the predecessors-in-interest of the plaintiffs and the same
was extended from time to time. The lease deed was lastly renewed on
30th May, 2003, for a period of 20 years with effect from 1st January,
2002 till 31st December, 2021.
7. Mr. Ghose submits that due to efflux of time, the deed of lease stood
determined on 31st December 2021. The defendant did not exercise
their option for renewal of the lease period of the suit premises and
accordingly, the plaintiffs requested the defendant to vacate the
premises and to hand over the vacant possession of the same but the
defendant failed to vacate the same.
8. Mr. Ghose submits that as the defendant failed to vacate and to
handover the possession of the suit premises to the plaintiffs, the
plaintiffs issued notice under Section 106 of the Transfer of Property
Act, 1882, calling upon the defendant to vacate and to hand over the
possession of the suit premises to the plaintiffs.
9. Mr. Ghose submits that the it is the specific case of the plaintiffs that
the suit relates to a commercial transaction and is covered under
Section 2(1)(c)(vii) of the Commercial Courts Act, 2015 and the suit filed
by the plaintiffs, is Commercial in nature.
10. Mr. Ghose submits that in the case of Deepak Polymers Private
Limited (supra), the Coordinate Bench of this Court has not
considered the explanation clause of Section 2(1)(c) of the Commercial
Court Act, 2015, wherein it is clarified that a commercial dispute shall
not be cease to be a commercial dispute merely because "it also
involves action for recovery of immovable property or for realization of
monies out of immovable property given as security or involves any other
relief pertaining to immovable property".
11. Mr. Ghose submits that this Court while considering the case of
Deepak Polymers Private Limited (supra) finds that in the said case
the explanation clause of Section 2(1)(c) of the Act was not considered,
the matter referred to the Hon'ble Chief Justice for constitution of
Special Bench and accordingly, the Hon'ble Division Bench has held
that even if the case is initiated on the basis of notice under Section
106 of the Transfer of Property Act, 1882, the parties can rely upon
agreement/lease deed.
12. Mr. Ghose submits that the plaintiffs have filed the suit taking into
consideration of the explanation clause of Section 2(1)(c) of the
Commercial Courts Act, 2015 and in the meantime the matter referred
by this Hon'ble Court to the Special Bench held that the explanation
clause is an integral part and parcel of Section 2(1)(c) of the Act and
has to be taken into consideration along with the Section 106 of the
Transfer of Property Act, 1882 for deciding the issue whether it is
commercial suit or not. He submits that in the present case, it cannot
be a question that the judgment passed by the Hon'ble Division Bench
cannot be operative prospectively or not.
13. Heard the Learned Counsel for the parties, perused the materials on
record and the judgments relied by the parties. The defendant has filed
the present application relying upon the judgment of the Coordinate
Bench of this Court in the case of Deepak Polymers Private Limited
(supra) wherein the Court held that:
"25. In view of Section 6 of the 2015 Act, a
Commercial Court has jurisdiction to try all suits
and applications relating to "commercial dispute" of
a "specified value" arising out of the entire territory
over which it has been vested with territorial
jurisdiction. Since the relief sought in the present
suits relate to an immovable property and/or rights
therein, which are actually used for commercial
purpose, the plaintiff has correctly determined the
"specified value" in terms of Section 12(1)(c) of the
2015 Act, the opposite parties argue. The Act of
2015 has an overruling effect notwithstanding
anything inconsistent therewith in any other law in
terms of Section 21 thereof, contends learned
counsel for the opposite parties. As such, no
question of valuation on the basis of lease annual
rent, as contemplated in the West Bengal Court
Fees Act, 1970 and the Suit Valuation Act, 1887,
arises in the present case.
26. Reading the words of the legislature
literally is the primary rule for construction of
statutes. As such, learned counsel for the opposite
parties defends the impugned orders on the
premise that the Commercial Court has jurisdiction
to entertain and decide the suits-in-question.
27. Upon hearing the rival contention of the
parties and perusing their respective written notes
of arguments, as well as on a plain and meaningful
reading of the plaints of the aforesaid suits in their
entirety, it is crystal-clear that the suits have been
filed primarily for recovery of possession of
immovable properties under Section 106 of
the Transfer of Property Act, 1882. In all the
plaints, it has been pleaded that notices were given
under Section 106, which the defendants failed to
comply with even after the expiry of fifteen (15)
days thereafter. Hence, the first ingredient of the
suits which stares in the face is that the suits are
based on the statutory right conferred by Section
106 of the 1882 Act. The cause of action in each of
the suits clearly arises by virtue of the rights
conferred by Section 106. In the event the suits
were for termination of lease on the ground of
forfeiture for violation of any of the clauses of the
lease agreements and/or for specific performance
of the agreements or suits of like nature, the suits
would definitely come within the purview of
"commercial dispute" as defined in Section 2(1)(c) of
the Commercial Courts Act, 2015.
28. A plain reading of the said provision
indicates that Section 2(1)(c) defines "commercial
dispute" to be a dispute "arising out of" the
subsequent sub-clauses, including several aspects.
Sub-clause (vii) is the only basis of argument of the
plaintiffs/opposite parties. The said sub-clause
stipulates that a dispute arising out of "agreements
relating to immovable property used exclusively in
trade or commerce" come within the ambit of
"commercial dispute". The judgments cited by the
plaintiffs are distinguishable on their respective
facts with the present case. Most of the cases, as
mentioned above, pertain directly to agreements
from various perspectives. Suits for specific
performance of agreements, suits relating renewal
clauses in agreements and other similar contexts
gave rise to the proceedings which culminated in
the said reports. Thus, the proceedings were
"arising out of" the respective agreements.
29. What has been highlighted in the
judgments placed by the opposite parties is that all
suits arising out of agreements relating to
immovable property used exclusively in trade or
commerce, including eviction suits, would come
within the ambit of the expression "commercial
dispute" and shall be decided by the Commercial
Courts in the event of the pecuniary jurisdiction, on
the basis of valuation of the suits, being above the
stipulated amount.
30. However, the cardinal question which has
not been addressed but is pivotal to the present
adjudication is the expression "dispute" which
precedes the expression "arising out of" as
appearing in Section 2(1)(c) of the 2015 Act.
Reading sub-clause (vii) in conjunction with the
starting words of Clause (c), it is seen that the
expression "agreements relating to immovable
property...." qualifies the term "dispute" arising out
of such agreements.
31. A "dispute" can only be determined by the
cause of action of the suit and not the preceding
backdrop. Even if Section 106 of the Transfer of
Property Act deals with termination of the jural
relationship of lessor and lessee, pre-supposing a
prior lease agreement, the bundle of facts
comprising the cause of action of the suit is the sole
determinant of the "dispute" involved in the suit.
32. In the event the suits, in the present case,
had been filed for recovery of possession in respect
of immovable property on the ground of forfeiture
for contravention of any of the terms and conditions
of the respective agreements-in-question, it might
have been argued that the suits pertains to
disputes "arising out of" such agreements.
33. However, the dispute itself, in the present
case, arises out of refusal by the defendants to
comply with the notices issued by the lessor under
Section 106 of the Transfer of Property Act, 1882,
which is based on a statutory right independent
and irrespective of any clause of the lease
agreements.
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
precondition 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."
14. The main issue raised by the defendant that the plaintiffs have filed the
suit when the order passed by the Court in the case of Deepak
Polymers Private Limited (supra) and at that time there was no order
of the Hon'ble Division Bench wherein the Hon'ble Division Bench has
taken into consideration of the explanation clause of the Commercial
Courts Act, 2015, thus the order of the Hon'ble Division Bench is not
applicable in the present case as the judgment of the Hon'ble Division
Bench is not having a prospective effect.
15. The plaintiffs have filed the suit in the Commercial Division taking into
consideration that the dispute between the plaintiffs and the defendant
is commercial in nature as the plaintiffs are relying upon the lease of
deed and due to efflux of time, the tenancy is determined and the
plaintiffs issued notice under Section 106 of the Transfer of Property
Act, 1882 for vacating the premises and handing over the possession.
16. In the case of T.E. Thomson & Company Limited Vs. Swarnalata
Chopra Nee Kapur and Another reported in 2024 SCC OnLine Cal
8985, the defendant in the said case had raised the issue that the
Coordinate Bench of this Court in the case of Deepak Polymers
Private Limited (supra) has held that refusal by the defendants to
comply with the notices issued by the lessor under Section 106 of the
Transfer of Property Act, 1882, which is based on a statutory right
independent and irrespective of any clause of the lease agreements,
hence, the suit squarely arises out of a statutory right conferred by
Section 106 of the Transfer of Property Act, 1882, having no direct
nexus with the lease agreements in respect of the immovable properties
concern.
17. In the case of T.E. Thomson & Company Limited (supra) at the time
of hearing of the application filed by the defendant under Order VII
Rule 11 of the Civil Procedure Code, 1908, Learned Counsel for the
plaintiffs have raised the issue that the Hon'ble Court while passing the
order in the case of Deepak polymers Private Limited (supra) did not
consider or deal with the explanation clause provided in Section 2(1)(c)
of the Commercial Courts Act, 2015. Considering the said issue raised
by the plaintiffs in the case of T.E. Thomson & Company Limited
(supra), this Court with great respect of the Hon'ble Judge dissented
with the order passed in the case of Deepak Polymers Private Limited
(supra) and referred the matter to the Hon'ble the Chief Justice of this
Court to constitute a Special Bench to decide the following issue :
"a. Whether after issuance of notice under
Section 106 of the Transfer of Property Act, 1882,
the defendant or the parties cannot rely the
agreement/or Lease Deed as the case may be?
b. Whether only on the basis of the case
initiated under Section 106 of the Transfer of
Property Act, 1882, it can be said that Court cannot
look into the agreement between the parties and
thus the suit cannot be treated as commercial suit
in terms of Section 2(1)(c)(vii) of the Commercial
Courts Act, 2015?
c. Whether if the Explanation Clause of
Section 2(1((c) of the Commercial Courts Act,
2015 taken into consideration along with
Section 106 of the Transfer of Property Act, 1882,
the suit can be treated as commercial suit in terms
of the lease agreement/rent agreement entered
between the parties?"
18. The Hon'ble Chief justice of this Court has referred the matter, namely,
T.E. Thomson & Company Limited vs. Swarnalata Chopra Nee
Kapur & Anr., being the case number IA No. GA-COM/2/2024 in CS
(COM) NO. 4 of 2023, to the Hon'ble Division Bench for taking decision
in the abovementioned issues and the Hon'ble Division Bench has held
as follows:
"122. In view of the aforesaid discussion we
accept the submission of Mr. Anindya Kumar Mitra,
the leanred Amicus Curie and anwer the questions
in the manner following:
Q.(a) Whether after issuance of notice under
section 106 of the Transfer of Property Act, 1882,
the defendant or the parties cannot rely on the
agreement/lease deed as the case may be?
Answer- The lease agreement is to be
looked into and considered for deciding the
nature and character of jural relationship of
landlord and tenant between the parties, that is
to say, whether the lease agreement is for
manufacturing or agricultural purpose, upon
which will depend validity of notice under
Section 106 of T P Act. The answer is in the
negative.
Q.(b) Whether only on the basis of the case
initiated under Section 106 of the Transfer of
Property Act, 1882, it can be said that Court
cannot look into the agreement between the
parties and thus, the suit cannot be treated as
commercial suit in terms of Section 2(1)(c)(vii) of
the Commercial Courts Act, 2015?
Answer - This question is included by
necessary implication in question (a) and is
answered in the negative.
Q.(c) Whether if the Explanation Clause of
Section 2(1)(c) of the Commercial Courts Act,
2015 taken into consideration along with the
Section 106 of the, 1882, the suit can be treated
as commercial suit in terms of the lease
agreement/rent agreement entered between the
parties?
Answer- Yes. Explanation clause is an
integral part and parcel of the Section 2(1)(c)(vii)
of the said Act and has to be taken into
consideration for deciding whether it is a
commercial dispute or not. Explanation is very
relevant because it reflects legislative intent that
a commercial dispute will not cease to be
commercial dispute, even if recovery of
immoveable property is claimed, which will not
change the character of a dispute if it has been
held to be commercial dispute under Section
2(1)(c) (vii) of the said Act."
19. The defendant has raised the issue in the present case that the
judgment passed by the Hon'ble Division Bench in the case of T.E.
Thomson (Supra) dated 18th June, 2025, is not applicable in the
present case as the said judgment cannot be given prospective effect.
This Court in the case of T.E. Thomson (supra), has dissented with the
order passed in the Deepak Polymers Private Limited (supra) and
referred the matter to the Hon'ble the Chief Justice for constitution of
Special Bench and accordingly, the matter was decided by the Hon'ble
Division Bench of this Court by affirming the issue referred by this
Court. Thus the issue raised by the defendant that the judgment
passed in the case of the T.E. Thomson (Supra) dated 18th June,
2025 by the Hon'ble Division Bench is not applicable in the present
case having no leg to stand.
20. Once this Court dissented with the order passed in the case of Deepak
Polymers Private Limited (supra), the only option with this Court to
accept the issue decided by the Hon'ble Division Bench in the case of
T.E. Thomson (Supra).
21. The judgments referred by the plaintiffs, are settled law that the
judgment of the Court always be retrospective effect in nature unless
the judgment itself specifically states that the judgment will operate
prospectively. But in the present case, the question of giving
retrospective effect to the judgment passed by the Hon'ble Division
Bench in the case of T.E. Thomson (supra) dated 18th June, 2025,
does not and cannot arise as the said judgment is passed by the
Hon'ble Division Bench on the issue referred by this Court in the case
of T.E. Thomson (supra).
22. Considering the above, this Court did not find any merit in the
application filed by the defendant, G.A. (Com) No. 5 of 2025 is
dismissed.
(Krishna Rao, J.)
