Awam Marketing Llp vs M/S Orient Beverages Limited And Ors on 1 April, 2026

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

SPONSORED

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

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)