KALIPADA MANNA Vs. ASHIS BHUNIYA

JUDGEMENT

(1.) Challenge of this revision application is the order dtd. 22/12/2022 passed by the Ld. Judge, Commercial Court, Alipore in connection with I.A. 24 of 2022 corresponding to Title suit no. 20 of 2021 wherein the claim of defendant no. 24/ petitioner herein for rejection of plaint invoking the provision of Order VII Rule 11 of the Code of Civil Procedure (for short CPC) was refused. Being aggrieved by and dissatisfied with the said order the petitioner has preferred the present civil application under Sec. 227 of the Constitution of India. Background Facts:-

(2.) The opposite party nos. 1 and 2 herein being the plaintiffs jointly filed the Title Suit being no. 20 of 2021 for declaration, recovery of possession of the suit property along with claim of money and damages together with permanent injunction in the Court of the Ld. Commercial Judge, Alipore against opposite party nos. 3 to 25 herein as well as defendant nos. 1 to 23 therein including the revisionist herein as well as the defendant no. 24 therein specifically on the ground that the plaintiffs by the virtue of 23 registered deeds of lease executed by defendants nos. 1 to 23 therein acquired the lease hold right and interest over the suit property. Those said deeds were executed and registered on 25/4/2008. During that relevant point of time the nature of the suit property was Jal Jami/waterbody. Subsequently, the plaintiffs therein/opposite party nos. 1 & 2 herein constructed the brick filed under the name and style of Dream Bricks Industries along with appropriate structures and machineries for the functioning of the said brick field.

(3.) Ld. Counsel, Mr. Aniruddha Chatterjee, appearing on behalf of the petitioner has advanced his arguments on the ground :- The Commercial Court adjudicating the Title Suit actually has no jurisdiction over the present dispute because the suit property is Jal Jami and it was not used exclusively for trade or commerce within the meaning of Sec. 2(1) (c) of the Commercial Courts Act, 2015. From the averments of the plaint it is apparent that the initial lease was granted for a period of 9 years with effect from 25/4/2009 and with validity up to 24/4/2018. Therefore, that particular lease has already expired and in addition to that Mr. Chatterjee has contended that no documents has been produced on behalf of the plaintiffs to show whether the lease period was either extended or a new fresh deed was executed between the original owner of the schedule property and the plaintiff. The impugned Title Suit was filed only on 2021 i.e more than 4 years of expiry of the original leasehold agreement. In continuation of that argument it was further submitted that lease deed of 2013 was challenged in this suit which was filed in the year 2021 i.e. beyond the period of limitation of 3 years. The provision envisaged in Sec. 12A of the Commercial Courts Act, 2015 has not been complied with by filing the suit without making any endeavour for pre institution mediation as per rules prescribed therefor. Before parting with, Mr. Chatterjee has submitted that the plaintiffs/ opposite party nos. 1 & 2 filed the Title Suit only on the basis of their alleged leasehold interest in the suit property and it is squarely based on certain statutory rights under the Transfer of Property Act which at best can be mitigated before a Civil Court and not by the Commercial Court. As a sequel, the impugned order is liable to be quashed.