Calcutta High Court
Basu House Private Limited vs Rubee Air Freight Limited on 22 January, 2025
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
G.A. No. 3 of 2024
In
CS No. 282 of 2022
Basu House Private Limited
Versus
Rubee Air Freight Limited
Mr. Shyamal Chakraborty
Ms. M. Jaiswal
Mr. Gaurav Kumar
Mr. Debajyoti Mondal
... For the plaintiff.
Mr. Aditya Mondal
Mr. Oishik Chatterjee.
... For the defendant.
Hearing Concluded On : 15.01.2024
Judgment on : 22.01.2025
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Krishna Rao, J.:
1. The defendant has filed the present application being G.A. No. 3 of 2024
praying for return of plaint on the ground that the suit filed by the
plaintiff is commercial in nature but the plaintiff has filed the suit
before the Non-Commercial Division.
2. Learned Counsel for the defendant submits that in the plaint, the
plaintiff has stated that the entire building is used for commercial
purpose and the suit premises was let out to the defendant for
business.
3. Learned Counsel for the defendant submits that it is the specific case of
the plaintiff that the defendant has approached the plaintiff for letting
out office space for commercial purposes in the second floor of the
premises. He submits that the plaintiff has also stated in the plaint that
the defendant is also liable to pay commercial sur-charge, increased
property tax and other taxes that may be levied by competent authority.
4. Learned Counsel for the defendant submits that the plaintiff has filed
the suit against the defendant for eviction of the defendant on the
ground of bona fide requirement as the plaintiff has made out a case in
the plaint that the entire office space which is let out to the defendant is
reasonably required by the plaintiff for their own business and to
expand their business.
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5. Learned Counsel for the defendant submits that the tenancy agreement
entered between the plaintiff and the defendant dated 22nd April, 2001
with respect to the suit premises in Clause-1(d) it is specifically
mentioned that the space shall be used by the new tenant only for its
office and for no other purposes.
6. Learned Counsel for the defendant submits that the case of the plaintiff
is covered under Clause (vii) of Section 2(1)(c) of the Commercial Courts
Act, 2015. He relied upon the judgment in the case of Ambalal
Sarabhai Enterprises Limited vs. K.S. Infraspace LLP and Another
reported in (2020) 15 SCC 585.
7. Learned Counsel for the plaintiff submits the relation between the
plaintiff and the defendant was landlord and tenant and there is no
commercial transaction between the plaintiff and the defendant. He
submits that the plaintiff before institution of the suit has issued notice
under Section 6(4) of the West Bengal Premises Tenancy Act, 1997 for
eviction of the defendant but inspite of issuance of notice, the defendant
failed to vacate the premises.
8. Learned Counsel for the plaintiff submits that the writ of summons of
the suit was duly served upon the defendant on 16th December, 2022
but the defendant has neither filed written statement nor has taken any
steps for depositing the admitted arrears of rent along with current
monthly rent before this Court.
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9. Learned Counsel for the plaintiff submits that as per section 7(3) of the
West Bengal Premises Tenancy Act, 1997 on failure of the tenant to
deposit entire arrears of monthly rent along with interest and current
monthly rent, the Court has the obligation to strike out the defence
either on the application of the plaintiff or suo motu.
10. Learned Counsel for the plaintiff submits that inspite of receipt of writ
of summons by the defendant of the instant suit, the defendant has not
filed written statement. He submits that the defendant has filed the
instant application only with the intention to prolong the suit and to
delay the trial.
11. Learned Counsel for the plaintiff submits that the dispute between the
plaintiff and the defendant is not a commercial dispute and is not
coming under the purview of any of the clauses of Section 2(1)(c) of the
Commercial Courts Act, 2015.
12. Learned Counsel for the plaintiff relied upon the judgment in the case
of Deepak Polymers Private Limited Vs. Anchor Investments
Private Limited reported in 2021 SCC OnLine Cal 4323 and
submitted that the plaintiff has filed the suit for recovery of possession
of the suit premises after issuance of notice under Section 6(4) of the
West Bengal Premises Tenancy Act, 1997 as the defendant fails to
comply with the notice by vacating the premises.
13. Heard the Learned Counsel for the respective parties, perused the
materials on record and the judgments relied by the parties. The issue
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in the present application is whether the suit filed by the plaintiff is
commercial in nature or not. The defendant relied upon Clause (vii) of
Section 2(1)(c) of the Commercial Courts Act, 2015 which reads as
follows:
“(vii) agreements relating to immovable
property used exclusively in trade or commerce.”
14. In paragraph 23 of the plaint, the plaintiff has stated that “The entire
building is used for commercial purpose and the said accommodation
was let out to the defendant for commercial purpose and the entire area
surrounding the suit premises is a business area”. In paragraph 17 of
the plaint also, the plaintiff has stated that “The plaintiff is unable to
run their business properly and/or expand their business having
shortage of accommodation. The entire office space which was let out to
the defendant is reasonably required by the plaintiff for their own
business and/or to expand business”.
15. Clause 1(d) of the agreement dated 22nd April, 2001 entered between
the plaintiff and the defendant reads as follows:
“The said space shall be used by the new
tenant only for its office and for no other purposes”.
16. The plaintiff has relied upon Section 6(4) of the West Bengal Premises
Tenancy Act, 1997 under which the plaintiff has issued notice to the
defendant for vacating and handing over possession of the suit
premises but the defendant failed to vacate the premises in terms of
notice of the plaintiff.
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17. Section 6(4) of the West Bengal Premises Tenancy Act, 1997 reads as
follows:
“6(4). Notwithstanding anything in any other
law for the time being in force, no [suit] for the
recovery of possession of any premises on any of
the grounds as aforesaid, except on the ground
mentioned in clause (e) of sub-section (1), shall be
instituted by the landlord unless he has given to
the tenant one month’s notice expiring with a month
of the tenancy.”
The plaintiff has issued notice to the defendant to quit the tenancy
but the defendant has not delivered vacant possession of the premises
to the plaintiff. The said provision does not bar to file the suit in the
Commercial Division. Neither Section 6 nor any sub-clauses of the said
Section create any bar to initiate suit for eviction before the Commercial
Court.
18. In the case of Ambalal Sarabhai Enterprises Ltd. (Supra), the
Hon’ble Supreme Court held that
“37. A dispute relating to immovable property
per se may not be a commercial dispute. But it
becomes a commercial dispute, if it falls under sub-
clause (vii) of Section 2(1)(c) of the Act viz. “the
agreements relating to immovable property used
exclusively in trade or commerce”. The words “used
exclusively in trade or commerce” are to be
interpreted purposefully. The word “used” denotes
“actually used” and it cannot be either “ready for
use” or “likely to be used” or “to be used”. It should
be “actually used”. Such a wide interpretation
would defeat the objects of the Act and the fast
tracking procedure discussed above.”
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In the present case, the plaintiff has made specific averment that
the entire building is used for commercial purpose and the said
accommodation was let out to the defendant for commercial purpose.
The agreement also specified that the said space shall be used by the
tenant only for its office and for no other purposes.
19. Considering the averments made in the pleading and the clause of the
agreement, this Court finds that the plaintiff has let out the suit
premises to the defendant exclusively for the purpose of business and is
squarely covered under Section 2(1)(c)(vii) of the Commercial Courts
Act, 2015.
20. The Judgment relied by the plaintiff in the case of Deepak Polymers
Private Limited (Supra) is distinguishable from the facts and
circumstances of the present case.
21. In view of the above, C.S. No. 282 of 2022 (Basu House Private Limited
-vs- Rubee Air Freight Limited) is returned to the plaintiff with the
liberty to be presented before the appropriate Court in accordance with
law.
22. G.A. No. 3 of 2024 is allowed. C.S. No. 282 of 2022 is disposed of.
(Krishna Rao, J.)
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