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Calcutta High Court
Biswajeet Kumar Paswan vs Shakambhariispat And Power Ltd on 11 August, 2025
OCD-3
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
CS-COM/110/2025
BISWAJEET KUMAR PASWAN
VS
SHAKAMBHARIISPAT AND POWER LTD.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date: August 11, 2025.
Appearance :
Ms. Ujjaini Chatterjee, Adv.
Mr. Debabrata Chakrabarti, Adv.
... for the plaintiff
1.
The plaintiff has filed the present suit praying for a sum of
Rs.68,95,641.82 along with interest at the rate of 18 % per annum.
The plaintiff has also prayed for dispensation of provisions of Section
12A of the Commercial Courts Act, 2015.
2. The plaintiff says that the plaintiff has supplied materials to the
defendant from time to time in terms of the agreement entered
between the parties and the materials supplied by the plaintiff were
duly accepted by the defendant. There was a due for a sum of
Rs.67,26,466.58 and the plaintiff has made several requests to the
defendant for payment of the balance amount but the defendant
failed to pay the amount.
3. It is submitted by the Learned Counsel for the plaintiff that the
defendant has admitted the claim of the plaintiff but the defendant
has not paid the amount.
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4. Learned Counsel for the plaintiff submits that several
communications by way of e-mails have been exchanged between the
parties and lastly, the plaintiff has even given an offer to the
defendant that the plaintiff will accept the amount by giving a
minimum 25% discount on the total pending amount but in spite of
the same, the defendant has not come forward to pay the dues of the
plaintiff and as such, the plaintiff has filed the present suit.
5. Counsel for the plaintiff prays for leave under Section 12A of the
Commercial Courts Act on the ground that the defendant has
admitted the claim of the plaintiff and in spite of several
communications, the defendant has not paid the amount and
recently, the plaintiff came to know that the accounts of the
defendant undergoing fresh auditing wherefrom several claims of the
creditors of the target entity being ESS DEE Aluminium Limited may
be removed or extinguished by the current management of the
defendant.
6. Counsel for the plaintiff submits that the plaintiff has made attempts
so that the matter can be resolved but the defendant has not come
forward for making payment of the amount though the defendant has
admitted the amount and as such, no purpose would be served by
initiating pre-institution mediation process.
7. Counsel for the plaintiff has relied upon the judgment in the case of
Riveria Commercial Developers Ltd. vs. Brompton Lifestyle
Brands Pvt. Ltd. reported in 2022 SCC OnLine Del 4624 and
submitted that in the said case also the defendant had admitted the
claim of the plaintiff and the Delhi High Court has considered that
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the plaintiff has filed an application for judgment upon admission
and Section 12A of the Commercial Courts Act which does
contemplate any urgent relief under the Commercial Courts Act shall
not be instituted unless the plaintiff exhausts the remedy of pre-
institution mediation but in the said case, the plaintiff has prayed for
urgent relief and as such, the Delhi High Court has granted leave
under Section 12A of the Commercial Courts Act.
8. Counsel for the plaintiff has further relied upon the judgment in the
case of Ganga Taro Vazirani vs. Depak Raheja reported in 2021
SCC OnLine Bom 195 and submitted that Section 12A of the
Commercial Courts Act is a procedural provision and there is no
absolute embargo in instituting the suit unless the plaintiff exhausts
the remedy of mediation. She submits that in the case, the Hon’ble
Bombay High Court considering the correspondences between the
parties wherein the parties tried to resolve their dispute before
approaching the Court but the said attempts failed and accordingly,
the Court has held that no purpose would be served by sending the
matter to pre-mediation process.
9. Considering the judgments relied upon by the plaintiff, this Court
finds that in the present case the plaintiff has filed the suit claiming
an amount of Rs. 67,26,466/- along with interest at the rate of 18 %
per annum. Though the plaintiff has made several correspondences
with the defendant and even the plaintiff was ready to accept the
amount by giving 25 % discount on amount due and payable but the
defendant has not come forward. Taking into consideration of the
above, this Court does not find that there is any urgency in the
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matter. The plaintiff has to satisfy the Court for dispensation of
provisions of Section 12A of the Commercial Courts Act that there is
an urgency to move the said application but here only the contention
of the plaintiff that the defendant has admitted the claim of the
plaintiff and the plaintiff has shown urgency that the plaintiff intends
to file an application for judgment upon admission and such, this
Court finds that the plaintiff does not come within the purview to
grant dispensation under Section 12A of the Commercial Courts Act.
Accordingly, prayer for leave under Section 12A of the Commercial
Courts Act is refused. However, the plaintiff is at liberty to approach
for pre-mediation process and if the matter is not settled before the
mediation centre, the plaintiff is at liberty to file a fresh suit.
10. As the Court has not admitted the plaint by granting leave under
Section 12A of the Commercial Courts Act, accordingly, the
department is directed to refund the Court Fees to the plaintiff with
liberty to use the said Court Fees if the plaintiff intends to file a fresh
suit for same cause of action.
11. CS-COM/110/2025 is dismissed with the above observation.
(KRISHNA RAO, J.)
RS
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