Calcutta High Court
Pranoy Kumar Saha vs Rabindra Narayan Das on 3 March, 2025
Author: Soumen Sen
Bench: Soumen Sen
OC-7
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
(Commercial Division)
APD/15/2023
WITH
CS/197/2022
PRANOY KUMAR SAHA
VERSUS
RABINDRA NARAYAN DAS
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
AND
The Hon'ble JUSTICE BISWAROOP CHOWDHURY
Date : 3rd March, 2025.
Appearance:
Mr. Krishna Raj Thaker, Sr. Adv.
Mr. Anupam Dasadhikari, Adv.
Mr. Suvam Sinha, Adv.
...for the appellant
Mr. Kumar Jyoti Tewari, Sr. Adv.
Mr. Niloy Sengupta, Adv.
Mr. Aniruddha Tewari, Adv.
Ms. Samriddhi Nayak, Adv.
Ms. Kausiki Bose, Adv.
...for the respondent
1. This appeal is arising out of an order dated 22nd June, 2023 passed
by the learned Single in an application for revocation of plaint by
revoking the leave granted under Section 12A of the Commercial
Courts Act, 2015.
2. We have carefully read the plaint.
3. The claim is arising out of an agreement for sale. The plaintiff
entered into a contract with the defendant on 11th April, 2019 in
respect of supply of certain goods mentioned in the agreement. The
plaintiff claims to have supplied materials, however, the defendant
2
without payment of price of goods supplied illegally terminated the
contract on 9th September, 2019. The suit was filed in July, 2022.
4. In the plaint, it is alleged that the delay attributed to the plaintiff
was factually incorrect and the plaintiff was not at all responsible
for the said delay and by reason of such illegal termination, the
plaintiff has suffered loss and damages. In the suit, under seven
heads of claim, a sum of Rs.4.17 crores in aggregate have been
claimed. Out of the aforesaid sum, a sum of Rs.49,31,326/- have
been claimed on account of goods sold and delivered.
5. In the plaint, it is stated that despite all arrangements being made
with regard to the performance of the contract, the defendant
without any cogent reason withheld Rs.25 lakhs and GST thereon.
The plaintiff in lieu of the works done by him continued to issue
invoices to the defendant for the works that were executed. The
invoices were issued between 2nd September, 2019 and 14th
September, 2019.
6. The plaintiff claimed dispensation of Section 12A on the basis of
the following averments:-
“43. On July 26, 2021, since the defendant has been
constantly denying the rightful legitimate entitlements of the
plaintiff, the plaintiff was constrained to address a complaint
to the State Vigilance Commission, West Bengal inter-alia
bringing to light several immoral trade practices being carried
on by the defendant in collusion with the Kolkata
Metropolitan Development Authority and has asked there be a
proper probe in the matter. Only recently the plaintiff has
been informed by one of the officers of the State Vigilance
3Commission that steps in accordance with law are being
taken in this matter. A copy of the letter dated July 26, 2021
is annexed hereto and marked “R”.
44. Since it is likely that the plaintiff will have to appear
before the State Vigilance Commission and penal action may
be taken against the defendant, it is imperative that the
plaintiff pursues his claims before this Hon’ble Court and
secures protection of his claims forthwith since there is a
sincere belief that the defendant in order to frustrate due
process is making preparations to abscond.
48. In the circumstances there is grave urgency on the part of
the plaintiff to seek interim reliefs in the matter and as such
the plaintiff in view of the urgency as pleaded in paragraph 41
herein above seeks leave under Section 12A of the
Commercial Courts Act, 2015 on account of having interim
urgent interlocutory reliefs sought for.”
7. Initially, leave was obtained under Section 12A of the Commercial
Courts Act, 2015. Subsequently, on an application filed by the
respondent for revocation of leave, the said application was allowed
by the learned Single Judge. The plaint was rejected with an
observation that the said rejection would not preclude the plaintiff
in instituting a suit as against the defendant on the self-same
cause after complying with the pre-institution mediation if
otherwise permissible in law.
8. Mr. K.R. Thaker, learned senior counsel appearing on behalf of the
plaintiff, submits that the learned Single Judge has failed to
appreciate that the suit contemplates an urgent relief and on the
basis of that leave was granted. The application for revocation was
4
filed on behalf of the defendant. It is submitted that even in the
written statement the defendant has not evinced any intention to
have the dispute resolved in mediation. Drawing attention to the
averments mentioned above, it is submitted that the said averment
is sufficient for a leave under Section 12A as it contemplates an
urgent relief. Learned senior counsel, referring to Yamini Manohar
v. T.K.D. Keerthi reported in (2024) 5 SCC 815, has submitted that
it has been categorically held in the said decision that when a suit
is filed with a prayer for urgent interim relief, it is the duty of the
commercial court to find out whether the suit contemplates any
urgent interim relief. It is immaterial whether any such relief would
be granted ex parte or with notice or that the said application
might ultimately fail, but the bona fide of the plaintiff in
approaching the Court seeking leave under Section 12A would be
the paramount consideration. It is further submitted that the
learned Single Judge has proceeded on the basis that the suit was
filed near to the period when the limitation would set in
disregarding the right of the plaintiff to institute a suit within the
period of limitation. The consideration for rejecting the plaint on
the ground that the suit was filed close to limitation is not a
ground on which the leave under Section 12A was revoked.
9. Learned counsel appearing on behalf of the respondent has
submitted that by reason of the failure on the part of the plaintiff to
perform the contract, the defendant has also suffered loss and
damages, however, it has been submitted that in the written
5
statement no counter-claim has been made nor the respondent has
referred the dispute to mediation.
10. At this stage, we are not concerned with the defence of the
defendant. The Hon’ble Supreme Court in Patil Automation Private
Limited v. Rakheja Engineers reported in (2022) 10 SCC 1 has
conclusively held Section 12A is mandatory. However, in
exceptional circumstances, the Court may dispense with such
leave depending upon the frame of the suit and the relief sought.
11. In Yamini Manohar (Supra) while referring to the views of the
Delhi High Court, it has been observed that the commercial court
should examine the nature and subject-matter of the suit, the
cause of action and the prayer for interim relief. The prayer for
urgent interim relief should not be a disguise or masked to wriggle
out and get over Section 12A of the Commercial Courts Act. The
facts and circumstances of the case have to be considered
holistically from the standpoint of the plaintiff.
12. Applying the aforesaid principles and the tests, we are unable to
accept the submission of Mr. Thaker that the frame of the suit
contemplates any urgent relief. The contract was alleged to have
been performed between 11th April, 2019 and 14th September,
2019. The contract was terminated on 9th September, 2019. There
is no prayer in the suit for a declaration that the said termination
is illegal. The urgency pleaded in paragraph 43 for dispensation is
a veiled attempt to circumvent Section 12A. The explanation
offered is unacceptable. The complaint to the State Vigilance
6
Commission, West Bengal with regard to alleged immoral trade
practices being carried on by the defendant in collusion with the
Kolkata Metropolitan Development Authority and a demand for a
probe into the said activities have no relevance to the cause of
action pleaded by the plaintiff for recovery of the price of goods sold
and delivered and damages suffered due to alleged termination.
13. On such consideration, we do not find any reason to interfere
with the order passed by the learned Single Judge. However, it
would be open for the plaintiff to refer the dispute to mediation and
the time spent in this Court in the Commercial Division and in the
Appellate Division shall stand excluded for the reasons stated
above.
14. This order is subject to the appellant referring the dispute to
mediation within two weeks from date. In default, the benefit under
Section 14(2) of the Limitation Act shall stand recalled without any
further reference to this Court.
15. We make it clear that our observations are limited to the issues
involved, namely, whether the plaintiff was entitled to obtain leave
under Section 12A of the Commercial Courts Act, 2015.
16. The appeal (APD/15/2023) stands disposed of.
(SOUMEN SEN, J.)
(BISWAROOP CHOWDHURY, J.)
R.Bhar/kc
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