[Cites 5, Cited by 0]
Calcutta High Court
Musical Films Private Limited vs T. E. Thomson And Company Limited on 10 April, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
OD-1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
IA No. GA/2/2026
With CS/258/2018
In APOT/53/2026
MUSICAL FILMS PRIVATE LIMITED
-VS-
T. E. THOMSON AND COMPANY LIMITED
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
-AND-
The Hon'ble JUSTICE MD. SHABBAR RASHIDI
For the Appellant : Mrs. Manju Agarwal, Sr. Adv.
Miss Manju Manot, Adv.
Mr. Rohit Banerjee, Adv.
Mrs. Ruchi Hallen, Adv.
For the Respondent : Mr. Krishnaraj Thakker, Sr. Adv.
Mr. Chayan Gupta, Adv.
Mr. Rittick Chowdhury, Adv.
Mr. Dwip Raj Basu, Adv.
HEARD ON : 10.04.2026
DELIVERED ON : 10.04.2026
DEBANGSU BASAK, J.:-
1. IA No. GA/2/2026 is an application for recalling the order dated
April 2, 2026 by which the appeal was dismissed for default.
2. Causes shown in the application for recalling, is that, the
learned Advocate engaged could not be present due to
circumstances mentioned therein.
3. Causes shown in the application are accepted as sufficient. The
order of dismissal dated April 2, 2026 is recalled.
4. APOT/53/2026 is restored to its file and number.
5. By consent of the parties, the appeal is treated as on the day's
list and taken up for final hearing.
6. Appeal is directed against the order dated December 3, 2025
passed in IA GA/7/2025. Typographical errors in the impugned
order were corrected on January 19, 2026.
7. By the impugned order, learned Single Judge allowed the
application filed by the plaintiff for transfer of the suit to the
Commercial Division.
8. Learned Senior Advocate appearing for the appellant submits
that, the suit was erroneously held to be a suit involving
commercial dispute within the meaning of Section 2(1)(c) of the
Commercial Courts Act, 2015. She submits that there is no
written agreement between the parties to the suit.
9. Learned Senior Advocate appearing for the appellant relies upon
2026:CHC-OS:84-DB (Auto Fuel & Services Vs. Amalgamated
Fuels Limited & Anr.) and contends that, the suit, if at all, was
a commercial dispute filed in the non-commercial division, was
required to be dismissed in terms of the ratio laid down therein.
Learned Trial Judge erred in not doing so.
10. Learned Senior Advocate appearing for the plaintiff/respondent
submits that, Section 2(1)(c)(vii) of the Act of 2015 speaks of an
agreement which does not qualify such agreement either to be
written or oral Section 2(1)(c)(vii) does not distinguish between a
written or oral agreement. Therefore, according to him, oral and
written agreement concerning immovable property which is used
in trade or commerce will fall within the definition of Section
2(1)(c)(vii) of the Act of 2015.
11. Learned Senior Advocate appearing for the respondent relies
upon AIR 2021 CAL 190 (Laxmi Polyfab Pvt. Ltd Vs. Eden
Realty Ventures Pvt. Ltd. & Anr) and contends that, in
paragraph 59 thereof, a time period was prescribed within
which, if the suit involving a commercial dispute, is filed in the
non-commercial division, then the plaint of such suit was
required to be returned. Relying upon (2022) 10 Supreme
Court Cases 1 (Patil Automation Private Limited And Others
Vs. Rakheja Engineers Private Limited), he submits that, the
Supreme Court provided that, the time period specified by the
respective High Court which held Section 12A of the Act of 2015
to be mandatory will govern the suits filed before such Court.
12. The respondent as a plaintiff filed a suit for eviction of the
appellant from the suit property. Suit property is being used as
an office space. Subject matter of the suit is valued in excess of
the specified value as prescribed.
13. There is a rent receipt issued by the respondent as the plaintiff
to the defendant in respect of such office space. The rent
receipts by itself, will constitute an agreement of tenancy.
14. In such circumstances, subject matter of the suit involves a
commercial dispute within the meaning of Section 2(1)(c)(vii) of
the Act of 2015.
15. Learned Single Judge noted that the plaint was filed on January
7, 2019 i.e. after coming into effect of the notification dated
November 15, 2018, fixing specified value and specifying
pecuniary jurisdiction of the commercial division.
16. Learned Trial Judge directed return of the plaint.
17. Laxmi Polyfab Pvt. Ltd. (Supra) in paragraph 59 thereof held
as follows:
"59. For the period therefore from October 23, 2015 till
January 1, 2016, a plaintiff was not aware of the
provisions of Section 12 A of the Act of 2015 for such
plaintiff to comply therewith. There is one more period to
which, the plaintiff cannot be faulted for not undertaking a
pre- institution mediation. It is the period from January 1,
2016 till December 11, 2020 being the date when the
manner and procedure for the pre- institution mediation
had been prescribed by the rules made by the central
government. The same would include the availability of
requisite infrastructure for pre-institution mediation as also
availability of trained mediators. Once the procedure has
been prescribed by the rules of the central government and
the requisite infrastructure to undertake a pre- institution
mediation is in place, a plaintiff cannot claim that, Section
12 A of the Act of 2015 is directory and not mandatory,
when such plaintiff is not seeking any urgent interim relief.
Therefore, for the period from October 23, 2015 till
December 11, 2020 a plaintiff cannot be faulted for not
undertaking pre-institution mediation under Section 12A of
the Act of 2015 where the plaintiff is not seeking any
urgent interim relief as the requisite infrastructure to do so
was not in place."
18. The instant suit, therefore, was filed within second period of
time noted in paragraph 59 of Laxmi Polyfab Pvt. Ltd (Supra).
19. Laxmi Polyfab Pvt. Ltd (Supra) was noted in Patil
Automation Private Limited And Others (Supra) which
directed that, if the plaint is filed violating Section 12A of the Act
of 2015 after the jurisdictional High Court declared Section 12A
to be mandatory then the plaintiff will not be entitled to relief.
20. In Auto Fuels & Services (Supra) the suit was filed in 2022.
Therefore, it was beyond the period of time noted in Laxmi
Polyfab Pvt. Ltd (Supra) and Patil Automation Private
Limited And Others (Supra). Therefore, in Auto Fuels
Services (Supra), the plaint was rejected in terms of Patil
Automation Pvt. Ltd. (Supra).
21. Facts scenario obtaining in the present case is that, the plaint
was filed on January 7, 2019 and, therefore, falling within the
second period noted in paragraph 59 of Laxmi Polyfab Pvt.
Ltd. (Supra).
22. Viewed from such perspective, learned Trial Judge did not err in
directing return of the plaint for presentation before the
appropriate forum.
23. We find no grounds to interfere with the impugned order.
24. APOT/53/2026 along with connected application are dismissed,
without any order as to costs.
(DEBANGSU BASAK, J.)
25. I agree
(MD. SHABBAR RASHIDI, J.)
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