SWASTIK PROJECT PVT. LTD. Vs. CITY ENCLAVE PVT. LTD.
LAWS(CAL)-2021-3-1
HIGH COURT OF CALCUTTA
Decided on March 01,2021

Swastik Project Pvt. Ltd. Appellant
VERSUS
City Enclave Pvt. Ltd. Respondents

JUDGEMENT

DEBANGSU BASAK, J. - (1.) The defendant No. 1 has applied for revocation of leave granted under Order II Rule 2 of the Code of Civil Procedure, 1908 and Section 12A of the Commercial Courts Act, 2015. The defendant No. 1 has also applied for the plaint to be taken of the file and returned to the plaintiff for filling before the appropriate court.
(2.) Learned Senior Advocate appearing for the defendant No. 1 has submitted that, the dispute involved in the suit cannot be a "commercial dispute" within the meaning of the Commercial Courts Act, 2015. He has submitted that, the plaintiff has stated that the building cannot be commercially utilized and exploited at paragraph 32 of the plaint. He has drawn the attention of the Court to various paragraphs of the plaint. He has submitted that, paragraph 36 of the plaint, where, the plaintiff has claimed that the disputes come within the meaning of the Act of 2015 is incorrect in the sense that, there is an incorrect quotation of the Section sought to be attracted. He has submitted that, the relevant clause would be Clause (vii) of Section 2 (1)(c), of the Act of 2015. According to him taking the averments made in paragraph 36 of the plaint to be true and correct, then also there is no agreement relating to an immovable property used exclusively in trade and commerce. He has relied upon 2019 SCC online SC 1311 (Ambalal Sarabhai Enterprises Limited v. K.S Infraspace LLP and Anr.) and submitted that, the provisions of the Act of 2015 have to be strictly construed.
(3.) Learned Senior Advocate for the defendant No. 1 has submitted that, the averments in the plaint are relevant to confer jurisdiction. On the basis of such averments, the disputes involved in the suit cannot be said to be commercial dispute within the meaning of the Act of 2015. He has submitted that, the expression "used" in Section 2 (1)(c)(vii) must mean "actually used" or "being used". In the facts of the present case, it cannot be said that the building concerned is actually used or being commercially used. According to him, the instant suit is for eviction of the defendants and cannot be treated to come within the ambit of a commercial dispute under the Act of 2015. Consequently, he has submitted that the plaint should be returned to the plaintiff for presentation before the appropriate forum.;


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