[Cites 11, Cited by 0]
Calcutta High Court
Auto Fuel & Services vs Amalgamated Fuels Limited & Anr on 12 March, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
1
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
APOT 313 of 2025
CS 191 of 2022
IA NO. GA/1/2026
Auto Fuel & Services
VS
Amalgamated Fuels Limited & Anr.
For the Appellant : Mr. Anirban Ray, Sr. Adv.
Mr. Debraj Shaw, Adv.
Ms. Anamika Pandey, Adv.
For the Respondent : Mr. Abhrajit Mitra, Sr. Adv.
Mr. Sarvapriya Mukherjee, Adv.
Mrs. Iram Hassan, Adv.
Mr. Samriddha Sen, adv.
Mr. Himangshu Bhawsinghka, Adv.
Hearing Concluded on : February 12, 2026
Judgement on : March 12, 2026
DEBANGSU BASAK, J.:-
1. Appellant has assailed the judgment and order dated
September 25, 2025 passed in GA 1 of 2023 in CS No. 191 of
2022.
2. By the impugned judgment and order, learned Single
Judge has dismissed the application of the defendant no. 2
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praying for rejection of the plaint and in the alternative
dismissal of the suit.
3. Learned Senior Advocate appearing for the appellant has
referred to the pleadings in the plaint. He has submitted that,
the subject matter of the suit relates to disputes arising out of
an agreement relating to an immovable property used
exclusively in trade and commerce as defined under Section
2(1)(c)(vii) of the Commercial Courts Act, 2015. The suit
property is presently being used as a petrol pump operated by
the appellant under the defendants no. 1 in the suit.
4. Learned Senior Advocate appearing for the appellant has
contended that, by a registered deed of lease dated December 5,
1952, Burmah Shell Oil Storage and Distribution Company
Limited being the predecessor-in-interest of the defendant no. 1
was granted a lease in respect of the immovable property
concerned. He has pointed out that, the plaintiff in the suit
contended that, the lease expired by efflux of time and that,
after the lease having expired by efflux of time, the lessee had
paid rent/occupation charges to the lessor. He has pointed out
that, by a Deed of Conveyance dated February 19, 1998, the
immovable property was conveyed in favour of the plaintiff. He
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has referred to the recital of such conveyance and contended
that, such conveyance noted that there were existing tenancies.
5. Learned Senior Advocate appearing for the appellant has
contended that, since the parameters specified under Section
2(1)(c) (vii) of the Act of 2015 stands satisfied, and in view of
the 2020 Volume 15 Supreme Court Cases 585 (Ambalal
Sarabhai Enterprises Limited vs. K. S. Infraspace LLP and
Another) the suit is one involving a commercial dispute.
6. Relying upon 2025 SCC OnLine Calcutta 5076 (T. E.
Thomson & Company Limited vs. Swarnalata Chopra Nee
Kapur and Another) learned Senior Advocate appearing for the
appellant has contended that, a lease agreement has to be
looked into and considered for deciding the nature and
character of the jural relationship. Even in cases initiated
under Section 106 of the Transfer of Property Act, 1882, a
Court has to take the agreement between the parties into
consideration. A suit involving the termination of tenancy by a
notice under Section 106 of the Act of 1882 would therefore
involve the issue of valid determination of existing jural
relationship. He has contended that, learned Single Judge has
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mis-construed and mis-applied the ratio of T. E. Thomson &
Company Limited (supra).
7. Learned Senior Advocate appearing for the appellant has
contended that, since the factum of a writ petition was pleaded
in the plaint, the same gets incorporated by reference. Such
fact can be relied upon in an application under Order 7 Rule 11
of Code of Civil Procedure, 1908. In support of such contention
he has relied upon 2012 Volume 8 Supreme Court Cases 706
(Church of Christ Charitable Trust and Educational
Charitable Society vs. Ponniamman Educational Trust).
8. Learned Senior Advocate appearing for the appellant has
contended that the immovable property concerned is a thika
property. In support of such contention, he has referred to
various materials on record. He has also relied upon Section
5(3) of the West Bengal Thika Tenancy (Acquisition and
Regulation) Act, 2001 in this regard.
9. Learned Advocate appearing for the plaintiff has
contended that, the defendant no. 1 in the suit has contended
that, the immovable property was a thika tenancy. The
appellant has traced its title through the defendant no. 1.
Therefore, according to him the defendants have themselves
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acknowledged that, there was no lease existing at the material
point of time when, the suit was filed. He has contended that
the plaintiff filed the suit for eviction on the ground of the
defendants not having any right, title and interest to occupy the
suit premises and not on the ground of expiry of the lease deed.
10. Learned Advocate appearing for the plaintiff has drawn the
attention of the Court to the various pleadings of the plaint. He
has contended that, there was a writ petition filed for the
purpose of seeking declaration that, the suit property was a
thika tenancy. Therefore, the defendants including the
appellant have accepted that there was no lease between the
parties. The Ministry has sought eviction of the defendants as
trespassers of the suit property.
11. Learned Advocate appearing for the plaintiff has
contended that since there was no lease between the parties
and that being the accepted position, there was no agreement
between the parties to give rise to a commercial dispute in
respect of an immovable property used in trade or commerce,
within the meaning of Section 2(1)(c)(vii) of the Act of 2015.
Consequently, according to him, learned Single Judge has
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correctly dismissed the application under Order 7 Rule 11 of
the Code of Civil Procedure, 1908.
12. The respondent No. 1 in this appeal, as the plaintiff filed
the suit against two defendants, namely the respondent No. 2
in the appeal as the defendant No. 1 and the appellant as the
defendant No. 2, for eviction and mesne profits.
13. The plaintiff has described the appellant as a partnership
concern and to be a dealer under the defendant no. 1 running a
petrol pump at the suit premises. The plaintiff has stated that,
by an indenture of lease dated December 05, 1952 one Burmah
Shell Oil Storage and Distribution Company Limited was
granted lease in respect of a suit property. By and under the
Burmah Shell (Acquisition of Undertakings in India) Act, 1976
the interest of such company had been nationalized and
acquired by the Central Government under the name Burmah
Shell Refinery Limited which was ultimately known as Bharat
Petroleum Corporation Limited.
14. The plaintiff has pleaded in the plaint that, Bharat
Petroleum Corporation Limited continued to remain in wrongful
and illegal possession and occupation of the suit premises by
paying occupation charges to the predecessor-in-title of the
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plaintiff. Plaintiff has also claimed that Bharat Petroleum
Corporation Limited continued in occupation of the suit
premises as the tenant-in-sufferance and that, plaintiff had
never accepted such company as a statutory tenant.
15. Plaintiff has pleaded in the plaint that, defendant No. 1
filed a writ petition being WP No. 4052 of 1988 claiming itself to
be a tikka tenant governed under the Calcutta Thika Tenancy
(Acquisition and Regulation) Act, 1981.
16. In the plaint the plaintiff has pleaded that, by a notice
dated July 28, 2021 it had called upon the defendant No. 1 to
vacate the suit premises. The defendants having continued to
remain in possession are liable to be evicted and the plaintiff is
entitled to a decree of eviction as also mesne profit.
17. Primarily two issues had been canvassed before the
learned Single Judge on behalf of the appellant, in its
application under Order 7 Rule 11 of the Code of Civil
Procedure, 1908 resulting in the impugned judgment and
order. One primary ground that the appellant had canvassed is
that the disputes involved in the suit were commercial disputes
within the meaning of Section 2(1)(c)(vii) of the Act of 2015 and
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the other is that the suit property is a thika tenancy and
therefore governed by the Act of 1971.
18. So far as the Act of 2015 is concerned Ambalal Sarabhai
Enterprises Limited (supra) has held that, a dispute relating
to an immovable property per se may not be a commercial
dispute. It has observed that, if an immovable property is used
in present for the purpose of trade or commerce and there is an
agreement with regard thereto between the parties, then, the
same will qualify under Section 2(1)(c)(vii) of the Act of 2015. It
has held that the provisions of the Act of 2015 are required to
be strictly construed. It has also construed the words used
under Section 2(1)(c)(vii) of the Act of 2015 and held that, such
words are to be interpreted purposively. The word "used"
denotes "actually used" and it cannot be either "ready for use"
or "likely to be used" or "to be used".
19. In the facts and circumstances of the present case, the
entry of the appellant in the suit property was as a dealer of the
defendant No. 1 in the suit. The defendant No. 1 in the suit had
entered into the suit property by virtue of a registered deed of
lease dated December 05, 1952. None of the appearing parties
before us have contended that, the suit property is not being
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used for the purpose of commerce presently. A petrol pump is
being run at the suit property by the appellant, as a dealer of
the defendant No. 1 at the suit property. One of the ingredients
of Section 2(1)(c)(vii) therefore stands satisfied.
20. Entry into the suit property by the defendant No. 1
through whom the appellant before us is claiming right to
occupy the suit property is on the basis of a registered lease
deed dated December 05, 1952. Whether or not such lease deed
has expired by efflux of time entitling the plaintiff to file a suit
for eviction or whether or not, the plaintiff is entitled to a decree
for eviction as prayed for, on the basis of the claim that the
defendants are trespassers in the suit property are issues
which have fallen for consideration in the suit.
21. T. E. Thomson & Company Limited (supra) has
answered the reference which it considered in the manner
following:-
"122. In view of the aforesaid discussion we accept
the submission of Mr. Anindya Kumar Mitra, the
learned Amicus Curie and answer the questions in the
manner following:
Q. (a) Whether after issuance of notice under
Section 106 of the Transfer of Property Act, 1882, the
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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.
(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
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dispute if it has been held to be commercial dispute
under Section 2(1)(c) (vii) of the said Act."
22. Church of Christ Charitable Trust and Educational
Charitable Society (supra) has held that, the Court must
scrutinize averments made in the plaint and if the same do not
disclose clear right to a material basis to sue and only creates
illusion of cause of action of closer profiting, such plaint should
be rejected.
23. In the facts and circumstances of the present case,
plaintiff has sought eviction of the defendants from an
immoveable property as also mesne profit from them on the
basis that they are trespassers. The defendants are in
possession and occupation of the suit property and the
appellant as the defendant No. 2 is carrying on a business of
petrol pump thereat. That the immovable property is being used
for commercial purposes presently has been acknowledged at
the Bar.
24. Three ingredients have to be fulfilled under Section
2(1)(c)(vii) of the Act of 2015 for the dispute to assume the
character of a commercial dispute within the meaning of the
Act of 2015. The three ingredients are :-
i. the dispute must arise out of an Agreement
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ii. relates to an immoveable property, and
iii. the immoveable property is exclusively used
for trade or commerce, presently
25. In order for a dispute between the parties to fall within the
meaning of a commercial dispute as defined under Section
2(1)(c)(vii) of the Act of 2015, such dispute must arise out of an
agreement concerning an immoveable property used presently
for trade or commerce.
26. Plaintiff has acknowledged that, there was a registered
lease deed in respect of the immoveable property concerned.
Plaintiff has acknowledged that, subsequent to the expiry of
such lease, the predecessor-in-title of the plaintiff had accepted
rent/occupation charges from the defendant No. 1. The issue as
to whether, a new tenancy has come into being post the expiry
of the registered deed has been raised in the plaint.
27. Plaintiff has pleaded in the plaint that the defendant No. 1
raised the plea of thika tenancy in a writ petition. Issue of thika
tenancy is yet to be finally adjudicated amongst the parties.
Such an issue is still at large. At least on the basis of the
pleading made in the plaint it cannot be conclusively
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pronounced that, the issue of thika tenancy stands finally
decided.
28. The issue as to whether, there was expiry of the registered
lease and that, subsequent to the expiry of the registered lease,
a new tenancy has come into being or not, looms large in the
suit. Therefore, there is an issue with regard to the right to
occupy the immoveable property concerned, raised by the
plaintiff itself in the plaint. Such an issue necessarily involves
an interpretation of the registered lease deed as also the
conduct of the parties subsequent thereto. The suit therefore
involves a dispute arising out of a registered lease concerning
an immovable property used presently for commerce.
29. On the strength of the pleading of the plaint, it can be said
that, issue of interpretation of an agreement between the
parties to the suit, in respect of an immoveable property which
is being presently used for commerce exists. In such
circumstances, in our view, the suit involves a commercial
dispute within the meaning of Section 2(1)(c)(vii) of the Act of
2015.
30. T. E. Thomson & Company Limited (supra) has held
that, subsequent to the issuance of a notice under Section 106
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of the Transfer of Property Act, 1882, a 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. In the facts of the present case, the plaintiff has
claimed that, it is seeking eviction of the defendants including
the appellant herein, from the suit property as trespassers.
Nonetheless, as noted above, the plaintiff in the plaint refers to
a registered lease deed which, as we have held, is required to be
considered in order to decide the nature and character of jural
relationship between the parties.
31. Section 12A of the Act of 2015 has mandated pre-
institution mediation. Mandatory pre-institution mediation,
stipulated under Section 12A of the Act of 2015, comes to the
benefit of all the parties to the suit. None of the parties to the
suit should be allowed to overcome such provisions of the law
by a claim which cannot be sustained on the face of pleadings
of the plaint. In a scenario under Order 7 Rule 11 of the Code of
Civil Procedure, 1908 where, statements made in the plaint are
to be taken into consideration. Plaint, even in the case of Order
7 Rule 11 of the Code of Civil Procedure, 1908 cannot be read
so as to defeat the valuable right.
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32. The suit was instituted in the non-commercial division of
the High Court, subsequent to the Act of 2015 coming into
effect.
33. In such circumstances, suit could not have been received
by the non-commercial division in view of the provisions of the
Act of 2015.
34. Plaint in CS 191 of 2022 is rejected.
35. This order will however not prevent the plaintiff from filing
a suit for eviction and mesne profit on the self-same cause of
action before the appropriate forum.
36. APOT 313 of 2025 is allowed. Connected applications, if
any, stand disposed of.
[DEBANGSU BASAK, J.]
37. I agree.
[MD. SHABBAR RASHIDI, J.]
