Calcutta High Court (Appellete Side)
M/S. Xclusive Inn Private Limited & Ors vs Anjana Guha & Ors on 9 July, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Commercial Division
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
FAT 270 of 2023
M/s. Xclusive Inn Private Limited & Ors.
Vs.
Anjana Guha & Ors.
For the Appellants : Mr. Aniruddha Chatterjee, Sr. Adv.
Mr. Sounak Bhattacharya, Adv.
Mr. Sounak Mondal, Adv.
Mr. A. Halder, Adv.
Mr. Anirban Saha Roy, Adv.
Ms. Bipasha Bhattacharyya, Adv.
For the respondent s : Mr. Anirban Roy, Adv.
Mr. Ashim Kumar Roy, Adv.
Mr. Debjit Basu, Adv.
Mr. Mrinmoy Mukherjee, Adv.
Hearing Concluded on : July 3, 2026
Judgement on : July 9, 2026
DEBANGSU BASAK, J.:-
1. Appellant has assailed the judgment and decree being
No. 29 dated July 10, 2023 passed in Title Suit No. 5 of 2021
by the learned Commercial Court at Rajarhat.
2. By the impugned judgment and decree, learned Judge
has allowed the application under Order XIII-A read with
SACHIN Digitally signed by
SACHIN KAHAR
KAHAR Date: 2026.07.09
11:38:39 +05’30’
2
Order XII Rule 6 of the Code of Civil Procedure, 1908 filed by
the respondents and passed a summary judgment and decree
of eviction against the appellants.
3. Learned Senior Advocate appearing for the appellants
has contended that, the subject matter of the suit cannot be
classified as involving a Commercial dispute within the
meaning of the Commercial Courts Act, 2015. Consequently,
he has contended that, the Court before which the suit was
instituted did not have requisite jurisdiction to try, enter and
determine the suit far less pass the impugned judgment and
decree of eviction.
4. Elaborating on his contention that, the subject matter
of the suit did not involve a commercial dispute within the
meaning of the Act of 2015, learned Senior Advocate
appearing for the appellant has drawn the attention of the
Court to the plaint. He has submitted that, the suit was for
eviction. An eviction suit, according to him, does not involve a
commercial dispute within the meaning of the Act of 2015.
5. Learned Senior Advocate appearing for the appellants
has contended that, the explanation to Section 2(1)(c) of the
Act of 2015 does not allow a suit for eviction simplicitor to be
3
treated as a suit involving a commercial dispute within the
meaning of the Act of 2015.
6. Learned Senior Advocate appearing for the appellant
has relied upon 2020 (15) SCC 585 (Ambalal Sarabhai
Enterprises Limited Vs. K.S. Infraspace LLP and Another)
in support of his contention as to what would constitute a
commercial dispute within the meaning of Section 2(1)(c)(vii) of
the Act of 2015.
7. Referring to 2021 3 ICC 482 (Deepak Polymers
Private Limited Vs. Anchor Investments Private Limited)
learned Senior Advocate appearing for the appellants has
contended that, the issue as to what would constitute a
commercial dispute within the meaning of Section 2(1)(c)(vii) of
the Act of 2015 was referred to a larger Bench by a learned
Single Judge in 2024 SCC OnLine Cal 8985 (T.E. Thomson
& Company Limited Vs. Swanalatha Chopra Nee Kapur
and Another). He has contended that, such reference was
answered in 2025 SCC OnLine Cal 5076 (T.E. Thomson &
Company Limited Vs. Swanalatha Chopra Nee Kapur and
Another) He has contended that, a Special Leave Petition was
carried against the decision of the Division Bench rendered in
4
T.E. Thomson & Company Limited (supra). Hon’ble
Supreme Court has granted stay of the operation of such
decision.
8. Learned Senior Advocate appearing for the appellant
has contended that, the learned Trial Court has erred in
invoking the provisions of the judgment on admission and
summary judgment in the facts and circumstances of the
present case. He has contended that, the appellants did not
make any admission in the pleadings for a decree of eviction
to be passed on the basis of admission.
9. Learned Senior Advocate appearing for the appellants
has contended that, lease deed was executed between the
parties. The appellants had entered the tenanted premises as
a tenant on April 17, 2008. Subsequent to the expiry of the
lease, appellants had paid enhanced rent to the respondent.
Respondents had accepted such enhanced rent.
10. Learned Senior Advocate appearing for the appellants
has pointed out that, simultaneously with the tenancy
agreement, an agreement for maintenance was also entered
into between the parties on April 17, 2008.
5
11. Learned Senior Advocate appearing for the appellants
has contended that, the appellant is required to be treated as
a tenant by holding over subsequent to the expiry of the
period of lease. He has pointed out that, no notice under
Section 106 of the Transfer of Property Act, 1882 was issued.
In any event, he has contended that, although, the plea of
holding over was taken by appellants before the learned Trial
Judge, the learned Court did not allude thereto. The learned
Judge has also not alluded to the point taken by the
appellants that the landlords accepted the enhanced rent from
the appellants. Learned Judge has not discussed the issue of
holding over in the impugned judgment and decree.
12. Learned Senior Advocate appearing for the appellants
has referred to Section 116 of the Transfer of Property Act,
1882 and contended that, the subject lease stood renewed
from year to year. He has also referred to the written
statement of the appellants and in particular to various
paragraphs therein.
13. On the issue of the subject matter of the suit, learned
Advocate for the respondents has drawn the attention of the
Court to paragraph 8 of the written statement where, the
6
appellants acknowledged that the appellants were using the
tenanted premises for commercial purpose of hotel cum
restaurant bar.
14. Learned Advocate appearing for the respondents has
contended that, in view of the admission of user of the
tenanted property for commercial purpose of running a hotel
cum restaurant bar the subject matter of the suit was
therefore rightly classified under Section 2(1)(c)(vii) of the Act
of 2015. The subject matter of the suit is therefore a
commercial dispute within the meaning of the Act of 2015. In
support of such contention, he has relied upon Ambalal
Sarabhai Enterprises Limited (supra) as also the decision
of the Division Bench in Deepak Polymers Private Limited
(supra).
15. Learned Advocate appearing for the respondents has
contended that, filing of the suit for eviction is a notice under
Section 106 of the Transfer of Property Act, 1882 and that, no
separate notice is required to be issued. In such context, he
has relied upon 2008 (2) SCC 728 (Nopany Investments (P)
Ltd. Vs. Santokii Singh (HUF) and 2021 SCC OnLine Del
2785 (Ashok Kumar Bagga Vs. Rajvinder Kaur)
7
16. Learned Advocate appearing for the respondents has
drawn the attention of the Court to the prayers in the plaint.
He has submitted that, the respondent claimed recovery of
possession as prayer (a) recovery of arrears license fee as
prayer (b), and mesne profits as prayer (c) amongst other
prayers. He has contended that, in the application under
Order XIIIA read with Order XII Rule 6 of the Code of Civil
Procedure, 1908, a decree for possession was granted by the
learned Trial Judge. He has contended that, the Trial Judge
was justified in doing so in the facts and circumstances of the
present case.
17. Referring to the pleadings in the written statement
particularly in a portion of paragraph 15, thereof learned
Advocate for the respondents has contended that, the
appellants claimed that it made excess payment. He has
contended that, the stand of excess payment of license fees
and the claim of holding over are contrary to each other and
cannot be sustained.
18. Learned Advocate appearing for the respondents has
relied upon 2026 SCC OnLine SC 744 (Reliance Eminent
Trading and Commercial Private Limited Vs. Delhi
8
Development Authority) on the issue of Order XIIIA of the
Code of Civil Procedure, 1908. He has contended that, the
learned Trial Judge has correctly followed the guidelines
tabulated thereunder. He has referred to the portion of the
impugned judgment and decree where the Trial Judge has
noted invoking Order XIIIA of the Code of Civil Procedure,
1908.
19. Relying upon 2012 (11) SCC 405 (Payal Vision
Limited Vs. Radhika Choudhary), learned Advocate
appearing for the respondents has contended that, in a suit
for recovery of possession from a tenant which is not protected
under the provisions of the Rent Control Act, what is required
to be established is the existence of jural relationship of
landlord and tenant and the termination of the tenancy either
by lapse of time or notice under Section 106 of the Transfer of
Property Act, 1882. Once such parameters have been
complied with, the Court can pass a decree under Order XII
Rule 6 of the Code of Civil Procedure, 1908.
20. Learned Advocate appearing for the respondents has
contended that, parameters of Order XIIIA and Order XII Rule
6 of the Code of Civil Procedure, 1908 were complied with. The
9
requirements of obtaining decree for eviction have been
complied with by the respondent as the plaintiffs. Therefore,
according to him, the impugned judgment and decree do not
suffer from any infirmity requiring any interference.
21. Respondents had filed a suit for eviction, arrears of
rent and mesne profits and other reliefs against the
appellants, before the Commercial Court at Rajarhat which
was registered as Title Suit No. 5 of 2021.
22. In the plaint, the respondents have claimed that, one
Tarun Kumar Guha was the lessee in respect of schedule A
property under one Biswanath Laha. Tarun Kumar Guha,
during his lifetime had inducted the appellants in the
schedule B property which is a portion of schedule A, as
tenants at monthly license fee of Rs. 28,000/- for the purpose
of running a hotel cum restaurant bar and a night club. Apart
from such tenancy agreement, Tarun Kumar Guha, during his
lifetime had also entered into an agreement for maintenance
for schedule B tenanted property with the appellants under
which the appellants were to pay maintenance of fee of Rs.
60,000/- per month. The parties had entered into such
agreements on April 17, 2008. The two agreements had
10
provided that the appellants would vacate the schedule B
property on or before March 16, 2018.
23. Tarun Kumar Guha had expired on December 28,
2013. The respondents as heirs of legal representatives of
Tarun Kumar Guha, since deceased have filed the subject
suit. In the suit the respondents have claimed eviction of the
appellants, arrears of license fees and mesne profits from the
appellants.
24. The respondents have claimed that, the appellants
continued to remain in the tenanted property in breach of the
agreement dated April 17, 2008. The tenancy had come to an
end on March 16, 2018. Appellants had assured that they
would vacate the tenanted premises by the end of December
2020. Appellants, however, had not done so. The respondent
had revoked the license of the appellants to occupy the
tenancy premises.
25. The respondents had allowed the appellants to occupy
and use schedule C property as Kitchen of a hotel and dance
bar. The respondents had allowed the appellants to construct
a small room as security guard rooms, such portion the
11
respondents described as the schedule D property in the
plaint.
26. The respondents had called upon the appellants to
handover vacant peaceful possession in the months of
December 2020, January 2021 and on January 15, 2021. The
appellants have failed to do so.
27. The respondent had valued the suit in excess of
30,00,000/-. In the written statement, the appellants had in
paragraph 8 acknowledged as follows:-
“8…………………………….the defendant are
using the aforesaid property for commercial
purpose of hotel cum restaurant bar”.
28. Appellants have claimed that they paid enhanced rate
of rent on and from the month of January 2021 to the
respondents. The appellants have claimed they had made
excess payment on account of rent. At the hearing of the
appeal, the appellants have claimed that they are tenants by
holding over.
29. Essentially in the written statement, the appellants
had acknowledged that there existed a jural relationship of
landlord and tenant between the parties. They had accepted
12
the two agreements dated April 17, 2008. They had also
accepted that the two agreements expired by efflux of time on
March 16, 2018. Stand of the parties to the suit have diverged
with regard to the events happening subsequent to March 16,
2018.
30. Respondents have filed an application which was
stated to be under Order XIIIA read with Order XII Rule 6 of
the Code of Civil Procedure, 1908. In such application the
respondents have prayed for summary judgment and decree
on admission for possession as prayer (a) and summary
judgment and decree on admission for mesne profits as prayer
(b).
31. The appellants have filed a written objection to such
an application. In such written objection, the appellants have
reiterated their stand taken in the written statement including
the paragraph 8 thereof. Appellants have made such
reiteration in paragraph 8 of the written objection.
32. All commercial disputes do not fall within definition of
commercial dispute as has been defined in Section 2(1)(c) of
the Act of 2015. Commercial Courts and Commercial
Divisions established under the provisions of the Act of 2015
13
have been empowered to decide suits involving commercial
disputes which are within the meaning of the Act of 2015.
33. A Commercial Court or a Commercial Division must
have subject matter jurisdiction to receive and decide a suit or
proceeding under the Act of 2015. Twin ingredients have to be
simultaneously satisfied for a Commercial Court or the
Commercial Division to assume subject matter jurisdiction
over the suit or proceeding. Such twin ingredients are:-
(i) value of the subject matter of the suit must be as per the
Specified Value as prescribed, and
(ii) the subject matter of the suit must involve a commercial
dispute within the meaning of Section 2(1)(c) of the Act of
2015.
34. Apart from the territorial and subject matter
jurisdiction of such Commercial Courts, the pecuniary
jurisdiction of such Court is also important. A Commercial
Court will have jurisdiction to decide the suit provided, it has
territorial jurisdiction and the subject matter involves
commercial disputes within the meaning of the Act of 2015,
and the subject matter of the suit is of the Specified Value as
prescribed under the Act of 2015. The Act of 2015 has defined
14
Specified Value in Section 2(1)(i). Specified Value so defined
has to be understood in conjunction with Section 12 of the Act
of 2015.
35. So far as the State of West Bengal is concerned, the
notification dated March 20, 2020, has prescribed the
Specified Value for commercial disputes to be a sum of Rs.
30,00,000/- and above.
36. In the facts and circumstances of the present case, the
suit filed by the respondents has been valued in excess of Rs.
30,00,000/- which is as per the prescribed Specified Value
under the Act of 2015. The parties have not disputed that the
Commercial Court has territorial jurisdiction.
37. In the facts and circumstances of the present case,
therefore, the respondents have satisfied two of the conditions
for the Commercial Court to assume jurisdiction, that is, the
Specified Value for the suit, and territorial jurisdiction.
38. As noted above, the suit filed by the respondents is one
for eviction, arrears of license fees and mesne profits. All
claims made in the suit are based on a written agreement of
tenancy and a written agreement for maintenance. Therefore,
there are written agreements relating to immovable properties
15
involved in the suit. Parties have acknowledged the existence
of such written agreements. Respective claims of the parties in
the suit are based on such written agreements. Both set of
parties to the suit have based their rights and respective
claims on the two written agreements dated April 17, 2008,
amongst others.
39. The respondents as the plaintiffs have alleged that the
suit property was being used for commerce. The appellants in
their written statement as well as the written objection have
acknowledged the suit property to be used for commercial
purpose. Both have agreed that, the suit property is being
used commercially as a hotel cum restaurant and a bar. The
agreement dated April 17, 2008 had allowed the suit property
to be used for a hotel cum restaurant and a bar.
40. Explanation to Section 2(1)(c) of the Act of 2015
prescribe that, a commercial dispute shall not cease to be a
commercial dispute merely because it also involves an action
for recovery of immovable property or for realization of monies
out of immovable properties given as security or involves any
other reliefs pertaining to the immovable properties. We are
concerned with explanation (a) only in the facts and
16
circumstances of the present case. Explanation (a) to Section
2(1)(c) clarifies that, a suit involving recovery of possession,
immovable property will not cease to one involving a
commercial dispute merely because a decree for eviction is
sought for.
41. Ambalal Sarabhai Enterprises Limited (supra) has
held as follows:-
“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.
42. Two conditions have to be simultaneously fulfilled for a
suit relating to an immovable property to partake the
character of a commercial dispute and fall within the
jurisdiction of the Commercial Court or the Commercial
Division as the case may be. The subject matter of the suit
17
must involve agreement relating to the immovable property
and the concerned immovable property must be used for trade
or commerce. It must be actually used so. Intention to use it
in future or being ready to be used for trade or commerce will
not suffice.
43. Once the two conditions noted in the preceding
paragraphs are satisfied, the suit thus can justifiably be
classified as one involving a commercial dispute within the
meaning of Section 2(1)(c)(vii) of the Act of 2015. Suit for
eviction is a specie of the genus of suits relating to
immoveable property involving a commercial dispute within
the meaning of Section 2(1)(c)(vii) of the Act of 2015.
44. Explanation (a) to Section 2(1)(c) of the Act of 2015
recognizes that there can be a suit for eviction in respect of an
immovable property where the disputes involved in the suit
can fall within the meaning of a commercial dispute as defined
in Section 2(1)(c). It therefore explains that such dispute in
the suit will not cease to be commercial dispute merely
because the suit involves an action for recovery of immovable
property or realization of monies out of immovable property
18
given on security or involves any other relief pertaining to the
immovable property.
45. Explanation (a) facilitates the consideration of any
relief relating to the immovable property including a relief for
eviction, when the dispute involved in the suit is a commercial
dispute within the meaning of the Act of 2015. Any other
interpretation would be misreading the express provisions of
Section 2(1)(c) and the Explanation (a) thereto of the Act of
2015.
46. In the facts and circumstances of the present case, as
noted above on the date of institution of the suit, the
immovable property concerned was being used for commerce
and admitted to be so by the appellants herein in their written
statement and their written objection.
47. Learned Single Judge in Deepak Polymers Private
Limited (supra) has held that, the suit arising out of the
statutory right under Section 106 of the Transfer of Property
Act, 1882 having no direct nexus with the lease agreements
did not satisfy the pre-condition of applicability of Section
2(1)(c)(vii) of the Act of 2015.
19
48. Another Single Judge in T.E. Thomson & Company
Limited (supra) after doubting the view of Deepak Polymers
Private Limited (supra) referred three issues to the Larger
Bench.
49. On reference the Division Bench in T.E. Thomson &
Company Limited (supra) has answered the reference as
follows:-
122. In view of the aforesaid discussion we accept
the submission of Mr. Anindya Kumar Mitra, the
learned Amicus Curie and answer the questions in the
manner following:
Q. (a) Whether after issuance of notice under
Section 106 of the Transfer of Property Act, 1882, the
defendant or the parties cannot rely on the
agreement/lease deed as the case may be?
Answer-The lease agreement is to be looked into and
considered for deciding the nature and character of
jural relationship of landlord and tenant between the
parties, that is to say, whether the lease agreement is
for manufacturing or agricultural purpose, upon which
will depend validity of notice under Section 106 of T P
Act. The answer is in the negative.
Q.(b) Whether only on the basis of the case initiated
under Section 106 of the Transfer of Property Act,
1882, it can be said that Court cannot look into the
agreement between the parties and thus, the suit
cannot be treated as commercial suit in terms of
Section 2(1)(c)(vii) of the Commercial Courts Act, 2015?
20
Answer – This question is included by necessary
implication in question (a) and is answered in the
negative.
(c) Whether if the Explanation Clause of
Section 2(1)(c) of the Commercial Courts Act,
2015 taken into consideration along with the Section
106 of the, 1882, the suit can be treated as
commercial suit in terms of the lease agreement/rent
agreement entered between the parties?
Answer – Yes. Explanation clause is an integral part
and parcel of the Section 2(1)(c)(vii) of the said Act and
has to be taken into consideration for deciding
whether it is a commercial dispute or not. Explanation
is very relevant because it reflects legislative intent
that a commercial dispute will not cease to be
commercial dispute, even if recovery of immoveable
property is claimed, which will not change the
character of a dispute if it has been held to be
commercial dispute under Section 2(1)(c) (vii) of the
said Act.
50. The decision of the Coordinate Bench in T.E.
Thomson & Company Limited (supra) is binding on us. It
has held that, the lease agreement has to be looked into and
considered for deciding the nature and character of the jural
relationship since the decision there on is required for
evaluating the validity of the notice under Section 106 of the
Transfer of Property Act, 1882.
21
51. In the facts and circumstances of the present case,
both parties have acknowledged two separate agreements to
be executed by them. Out of the two, parties have agreed to
one governing lease/tenancy agreement while the other for
maintenance of the tenancy premises. Parties have
acknowledged that, the agreements dated April 17, 2008,
governing the tenancy had expired. As has been noted above,
there are divergence in the view of the respective parties with
regard to the events happening subsequent to the expiry of
the agreement dated April 17, 2008.
52. Apart from the claim of eviction, the respondents as
the plaintiffs have claimed arrears of license fees and mesne
profits in the suit. The suit therefore of the respondents is not
simplicitor for eviction but also have money claims.
Respondents have based their money claims on the agreement
for tenancy and maintenance both dated April 17, 2008
amongst other documents.
53. In view of the explanation to Section 2(1)(c) of the Act
of 2015, the suit involved, is not a simplicitor suit for eviction
but have prayers which resonates on the money claims. The
respondents have based their money claims on the
22
agreements governing the rent and maintenance payable. The
agreements relate to an immovable property used in
commerce.
54. In such factual matrix, given the prayers in the plaint,
the subject matter of the suit, therefore, involves a commercial
dispute within the meaning of Section 2(1)(c)(vii) of the Act of
2015. The ingredients for a Commercial Court to assume
jurisdiction, having been satisfied, the suit was correctly
instituted, before the Commercial Court.
55. In this regard, one must not lose sight of the
provisions of Section 6 of the Act of 2015 which has laid down
the jurisdiction of the Commercial Court. Once the territorial
and subject matter jurisdiction have been established, the suit
is maintainable only before the Commercial Court in terms of
Section 6 of the Act of 2015.
56. The quantum of rent under the agreement dated April
17, 2008 by itself and the subsequent rent enhancements, in
any view, have taken the tenancy out of the purview of
protection under the West Bengal Premises Tenancy Act,
1997. The tenancy is therefore governed under the provisions
of the Transfer of Property Act, 1882.
23
57. In the plaint, respondents as the plaintiff have pleaded
oral notice under Section 106 of the Transfer of Property Act,
1882 to be given. Appellants have contended that no notice
under Section 106 of the Transfer of Property Act, 1882 was
issued prior to the institution of the suit, and therefore, the
suit must fail.
58. Nopany Investments (P) Ltd. (supra) has considered
the necessity of a notice to quit under Section 106 of the
Transfer of Property Act, 1882, prior to the filing of the suit for
eviction. It has held as follows:-
22. ……..In any view of the matter, it is
well settled that filing of an eviction suit
under the general law itself is a notice to
quit on the tenant. Therefore, we have no
hesitation to hold that no notice to quit
was necessary under Section 106 of the
Transfer of Property Act in order to
enable the respondent to get a decree of
eviction against the appellant. This view
has also been expressed in the decision
of this Court in V. Dhanapal Chettiar v.
Yesodai Ammal.
59. On the strength of the ratio laid down in Nopany
Investments (P) Ltd. (supra), the institution of the suit by the
respondents cannot be faulted on the ground that no notice
under Section 106 of the Transfer of Property Act, 1882, was
24
issued prior to the institution of the suit, assuming one
disbelieves the claim of oral notice. As has been noted above,
the suit is governed by the provisions of the Transfer of
Property Act, 1882, as the appellants are not entitled to the
protection of eviction under the provisions of the West Bengal
Premises Tenancy Act, 1997 in view of the quantum of rent
payable.
60. Payal Vision Limited (supra) has considered the
provisions of Order XII Rule 6 of the Code of Civil Procedure,
1908 in a suit for recovery of possession from a tenant whose
tenancy was not protected under the Rent Control Act. It has
held that, the plaintiff in suit for eviction of a tenant whose
tenancy is not protected under the Rent Control Act is
required to establish existence of jural relationship of landlord
and tenant between the parties and termination of tenancy
either by lapse of time or by service of notice under Section
106 of the Transfer of Property Act, 1882 to obtain a decree on
the basis of judgement on admission.
61. Applying the ratio of Payal Vision Limited (supra) in
the facts and circumstances of the present case, the
appellants have admitted the jural relationship of landlord
25
and tenant between the parties. As has been held above,
tenancy is not protected under the West Bengal Premises
Tenancy Act, 1997. Filing of the suit itself is a notice to quit
on the tenant on the strength of Nopany Investments (P) Ltd.
(supra). Therefore, the respondents as the plaintiff have made
out a case for grant of relief under Order XII Rule 6 of the
Code of Civil Procedure, 1908.
62. Respondents had filed the application in which, the
impugned judgment and decree was passed under Order XIIIA
read with Order XII Rule 6 of the Code of Civil Procedure,
1908. Learned Trial Judge has acknowledged it to be so in the
impugned judgment and order. Parties had proceeded on such
basis also before the learned Trial Judge.
63. Reliance Eminent Trading and Commercial Private
(supra) has laid down guidelines to be complied with while
considering the application for summary judgment under
Order XIIIA of the Code of Civil Procedure, 1908. It would be
apposite to refer to paragraph 59 thereof which is as follows:-
59. Therefore, while considering an application
for summary judgment under Order XIII-A of the
CPC, the following non-exhaustive guidelines
have to be complied-
26
(i) That the procedural mandate under Order
XIII-A, CPC be strictly complied.
(ii) The Court should consider,
(a) Whether Plaintiff has no real prospect of
succeeding on the claim or issue; or
(b) Whether the defendant has no real prospect of
successfully defending the claim or issue; and
(iii) The Court should also consider whether
there is no other reason why the case or issue(s)
should be allowed to go to trial.
(iv) While ascertaining above, the Court does not
have to take everything on the face value, but it
must also not conduct a mini trial at the same
time.
(v) That the Court has to differentiate between a
cause of action/defence respectively, which is a
real as opposed to fanciful prospect.
(vi) That the Court ought to grasp the nettle,
when dealing with the summary judgement
applications to decide short points of law and
interpretations.
(vii) The Court must take into account not only
the evidence before it but also the evidence that
can reasonably be expected to be led/available
at the trail.
(viii) That the Court’s usage of power under
Order XIII-A, CPC is exceptional as it cuts short
the process of trial and ought to be exercised
where oral evidence and full trial is not
required.
(ix) In order to ascertain the need for full trial
over summary judgment, the Court has to see
whether, in the interest of justice it is more
suited to conduct trial to-
27
(a) Weigh the evidence,
(b) Evaluate the credibility of a deponents,
(c) Draw reasonable inference from the evidence.
64. Reliance Eminent Trading and Commercial Private
(supra) has also noted that, use of summary judgment is not
against the interest of justice if it leads to a fair and just result
as it would serve the guidelines of timelines, affordability and
proportionality in light of the litigation as a whole.
65. Scope and area of operation of Order XII Rule 6 and
Order XIIIA of the Code of Civil Procedure, 1908 are different.
While Order XII Rule 6 is available to every suit filed under
Section 9 of the Code of Civil Procedure, 1908, Order XIIIA
applies only to suits involving commercial disputes within the
meaning of the Act of 2015 and tried by a Commercial Court
or a Commercial Division. However, it has no application in a
suit under Order XXXVII of the Code of Civil Procedure, 1908
filed before the Commercial Court or the Commercial Division.
Order XIIIA of the Code of Civil Procedure, 1908 is, however,
not shackled by the requirement of an admission for it to be
invoked, as in Order XII Rule 6 scenario.
66. Notwithstanding no admission being made by the
defendant, a Court exercising powers under Order XIIIA of the
28
Code of Civil Procedure, 1908 can pass a summary judgment
if it considers the plaintiff not to have any real prospect of
succeeding on the claim or the defendant not to have any real
prospect of successfully defending the claims or when the
Court is of the view that there is no compelling reason as to
why the claim should not be disposed of before recording of
oral evidence.
67. As noted above both the parties to the suit have traced
their respective claims from the agreements dated April 17,
2008. Both have acknowledged that the agreement dated April
17, 2008 expired by efflux of time on March 16, 2018. The
tenancy not being protected under the West Bengal Premises
Tenancy Act, 1997 is an admitted fact. In any events, such
fact is established by the admitted agreement dated April 17,
2008. Filing of the suit for eviction is itself a notice under
Section 106 of the Transfer of Property Act, 1882. There is no
real prospect of the appellants defending the claim of eviction
of the respondents, in the suit. The conduct of the parties
subsequent to March, 16, 2018, taking the claims of the
appellants to the highest, brings about a new tenancy. That
new tenancy is also governed by the Transfer of Property Act,
29
1882 and is not afforded any protection from eviction under
the West Bengal Premises Tenancy Act, 1997. The plea of
holding over subsequent to March 16, 2018 by the appellants
also does not impede a decree for eviction under Order XIIIA of
the Code of Civil Procedure, 1908 as the appellants are liable
to be evicted under the Transfer of Property Act, 1882, even in
such a scenario. The subject suit is not under Order XXXVII of
the Code of Civil Procedure, 1908 for the ouster of
applicability of Order XIIIA to apply.
68. In the facts and circumstances of the present case,
nothing has been placed on record before us to establish that,
the guidelines in paragraph 59 of Reliance Eminent Trading
and Commercial Private (supra) have been breached by the
learned Trial Judge.
69. Ashok Kumar Bagga (supra) has applied the ratio of
Nopany Investments (P) Ltd. (supra) with regard to a notice
under Section 106 of the Transfer of Property Act, 1882. It has
also noted, various authorities of the Supreme Court and the
Delhi High Court on the issue of judgment of admission in
respect of a suit for eviction. It had upheld the decree for
eviction on the basis of admission in the facts of that case.
30
70. In the facts and circumstances of the present case,
therefore, the learned Trial Judge has correctly applied the
provisions of Order XIIIA read with Order XII Rule 6 of the
Code of Civil Procedure, 1908 and passed a decree for
eviction. We have found no grounds to interfere with the
impugned judgment and decree.
71. FAT 270 of 2023 is dismissed without any order as to
costs.
[DEBANGSU BASAK, J.]
72. I agree.
[MD. SHABBAR RASHIDI, J.]
