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

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    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

    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)



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