DIPANKAR GHOSH Vs. CESC LIMITED

JUDGEMENT

(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 Sec. 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 Sec. 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 dtd. 24/3/2022, under Sec. 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 Sec. 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 dtd. 18/6/2025, is not applicable in the present suit as the said judgment is not having prospective effect.