Calcutta High Court
Awam Marketing Llp vs M/S Orient Beverages Limited And Ors on 1 April, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
OD-5
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE DIVISION
ORIGINAL SIDE
APO/144/2023
WITH
CS/85/2016
AWAM MARKETING LLP
VS
M/S ORIENT BEVERAGES LIMITED AND ORS
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
-AND-
The Hon'ble JUSTICE MD. SHABBAR RASHIDI
For the Appellant : Mr. Sabyasachi Choudhury, Sr. Adv.
Mr. Soumabho Ghose, Adv.
Ms. Tiana Bhattacharya, Adv.
Mr. Souvik Majumdar, Adv.
Ms. Anyapurba Banerjee, Adv.
HEARD ON : 01.04.2026
DELIVERED ON : 01.04.2026
DEBANGSU BASAK, J.:-
1. Appeal is at the behest of a plaintiff and directed against the
judgment and order dated December 5, 2022 passed in
GA/4/2021 in CS/85/2016.
2. By the impugned judgment and order, learned Single Judge
dismissed the application for judgment on admission filed by the
appellant.
3. None appears for the respondent despite service.
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4. Plaintiff filed a suit for declaration that the plaintiff is entitled to be
and remain in possession of the suit property and that, the
defendants are trespassers. Plaintiff also sought for decree of khas
possession and mesne profit.
5. Plaint case of the plaintiff is that initially a lease deed was entered
into. The lease deed expired by efflux of time. Some of the
defendants entered into unlawful possession of the suit property
through some of the lessees.
6. Essentially, plaintiff is seeking recovery of possession and mesne
profit on the basis of expiry of a lease subsisting in respect of an
immovable property against some of the defendants while as
against others as trespassers.
7. Lease deed relates to an immovable property which is used in
commerce that is to say that office spaces were let out.
8. In 2026:CHC-OS:84-DB (Auto Fuel & Services Vs. Amalgamated
Fuels Limited & Anr.) and 2026:CHC-OS:85-DB (Indian Oil
Corporation Limited Vs. Jayanta Krishna Datta And Another),
it was held that Section 12A was mandatory. It was also held that,
since, the plaintiff as the lessor was seeking eviction of lessees,
after expiry of the lease, on the ground of such lessees becoming
trespassers, nonetheless, since, the plaint refers to a registered
deed in respect of an immovable property used in commerce
presently, the disputes involved in the suit fell within the meaning
of Section 2 (1) (c) (vii) of the Commercial Courts Act, 2015.
9. In the facts and circumstances of the present case, the same ratio
as that of Indian Oil Corporation Limited (supra) and Auto Fuel
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& Services (supra) applies. As against some of the defendants the
suit is on the basis of expiring of lease. The other defendants
cannot be said to be not necessary and proper parties.
10. The present suit was filed in 2016. In AIR 2021 Cal 190 (Laxmi
Polyfab Pvt. Ltd. Vs. Eden Realty Ventures Pvt. Ltd. and
Another), Section 12A was held to be mandatory. Laxmi Polyfab
Pvt. Ltd. (supra) was approved by the Hon’ble Supreme Court in
2022 10 SCC 1 (Patil Automation (P) Ltd. Vs. Rakheja
Engineers (P) Ltd..
11. Patil Automation (P) Ltd. (supra) was noticed in 2025 9 SCC
424 (Dhanbad Fuels Private Limited Vs. Union of India and
Anr.).
12. In Dhanbad Fuels Private Limited (supra), it was directed that if
the suit was instituted on or after the decision in Patil
Automation (supra) i.e. August 20, 2022, without complying with
Section 12A of the Act of 2015, then, it will meet the rejection
under Order VII Rule 11 of the Code of Civil Procedure. If, however,
the suit is instituted prior to August 20, 2022 without complying
with Section 12A of the Act of 2015 and the same does not fall
within the exceptional categories, then, it would be open to the
Court to keep the suit in abeyance and direct the parties to explore
the possibility of mediation with the Act of 2015. The present suit
was instituted in 2016. Obviously, it was prior to August 20, 2022.
13. Since, the suit involves a commercial dispute within the meaning
of the Act of 2015, it would be appropriate to invoke powers under
Section 15 of the Act of 2015 and direct the Department to
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transfer CS/85/2016 to the Commercial Division. Department will
allot a new number immediately on transmission of CS/85/2016
to the Commercial Division. Immediately on transfer of
CS/85/2016, Department will treat CS/85/2016 as disposed of in
its records.
14. The impugned judgment and order was passed on December 5,
2022 in the non-Commercial Division. The learned Single Judge
did not notice that the suit involved a commercial dispute within
the meaning of the Act of 2015. Learned Single Judge did not pass
the impugned judgment and order in the Commercial Division.
15. In such circumstances, the impugned judgment and order dated
December 5, 2022 is set aside. The application on which the
impugned judgment and order was passed is revived. Such
application may be decided by the learned Single Judge, in
accordance with law, without being influenced by the impugned
judgment and order dated December 5, 2022, in any manner
whatsoever.
16. APO/144/2023 is disposed of without any order as to costs.
(DEBANGSU BASAK, J.)
17. I agree.
(MD. SHABBAR RASHIDI, J.)
KB
AR(CR)