INDIAN OIL CORPORATION LIMITED vs JAYANTA KRISHNA DATTA AND ANR

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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION

ORIGINAL SIDE
Present:
The Hon’ble Justice Debangsu Basak
And
The Hon’ble Justice Md. Shabbar Rashidi

APD 11 of 2023
WITH
CS 83/2019
INDIAN OIL CORPORATION LIMITED
VS
JAYANTA KRISHNA DATTA AND ANOTHER
For the Appellant : Mr. Anirban Ray, Ld. Sr. Adv.
Mr. Amit Kr. Nag, Adv.
Mr. Partha Banerjee, Adv.
Mr. Debraj Shaw, Adv.

For the Respondent : Mr. Abhrajit Mitra, Sr. Adv.
Mr. Sarvapriya Mukherjee, Adv.
Mrs. Iram Hassan, Adv.
Mr. Samriddha Sen, Adv.
Mr. Himangshu Bhawsinghka, Adv.


Hearing Concluded on : February 12, 2026

Judgement on : March 12, 2026

DEBANGSU BASAK, J.:-

1. Appellant has assailed the judgment and decree dated
February 17, 2023 passed in IA GA No. 1 of 2019 in CS No. 83 of
2019.
2. Learned Senior Advocate appearing for the appellant has
contended that, the impugned judgment and decree ought to be

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set aside since, the same was passed in a suit involving a
commercial dispute within the meaning of the Commercial
Courts Act, 2015. He has contended that suit was not filed in the
Commercial Division therefore, accordingly, learned Single Judge
has erred in exercising jurisdiction over the subject suit.
3. Learned Senior Advocate appearing for the appellant has
contended that, by two registered indenture of leases both dated
September 10, 2008, the respondents leased two immovable
properties. The respondents had contended in the plaint that,
two leases expired by efflux of time and consequently, the
appellant became a trespasser. He has pointed out that, the
immovable property is being used for running petrol pump and
that, lease deed dated September 10, 2008 mentions the same.
Consequently, he has contended that, the dispute involved in the
suit is a commercial dispute within the meaning of Section
2(1)(c)(vii) of the Act of 2015. He has relied upon 2020 Volume
15 Supreme Court Cases 585 (Ambalal Sarabhai Enterprises
Limited vs. K. S. Infraspace LLP and Another) in support of
such contention.
4. Relying upon 2025 SCC OnLine Calcutta 5076 (T. E.
Thomson & Company Limited vs. Swarnalata Chopra Nee
Kapur and Another) learned Senior Advocate appearing for the

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appellant has contended that, the lease deeds can be looked into
and considered by the Court in suit for eviction. According to
him, the ratio in 1998 Volume 7 Supreme Court Cases 184
(Raptakos Brett and Company Limited Versus Ganesh
Property) is not attracted and in any event was considered in T.
E. Thomson & Company Limited (supra).
5. Learned Senior Advocate appearing for the appellant has
contended that, in defending an application under Chapter XIII A
of the Original Side Rules, a defendant is required to establish
the existence of triable issue in order to receive an order for filing
written statement unconditionally. He has contended that, the
plea of the thika tenancy raised is a triable issue. He has
contended that, the suit property is a thika tenancy within the
meaning of Calcutta Thika Tenancy (Acquisition and Regulation)
Act, 1981.
6. Learned Senior Advocate appearing for the respondents has
contended that, there is no commercial dispute within the
meaning of Act of 2015 involved in the suit. In support of such
contention, he has contended that, the fact that the lease deeds
dated September 10, 2008 expired by efflux of time on August 02,
2018 is not in dispute. Consequently, the appellant has become a
tenant-in-sufferance which is akin to that of a trespasser having

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no contractual right with the land owner. In support of such
contention, he has relied upon 2000 Volume 3 Supreme Court
Cases 250(Haldiran Bhujiawala and Others Versus Anand
Kumar and Deepak Kumar and Others) , 1995 Volume 5
Supreme Court Cases 698 (R.V. Bhupal Prasad Versus State
of Andhra Pradesh) and 1998 Volume 7 Supreme Court
Cases 184 (Raptakos Brett and Company Limited Versus
Ganesh Property).
7. Comparing Section 69(2) of the Partnership Act, 1932 with
Section 2(1)(c)(vii) of the Act of 2015, learned Senior Advocate
appearing for the respondent has submitted that, similar words
have been used in both the statutes. In this regard, he has relied
upon AIR 1965 SC 101 (Mangilal Versus Sugan Chand Rathi
th
and Another). He has also relied upon Craies on Statute Law 6
Edition.
8. Learned Senior Advocate appearing for the respondent has
contended that, the authorities cited on behalf of the appellant
are not attracted in the facts and circumstances of the present
case.
9. The respondent had filed a suit for eviction of the appellant
from the suit property being CS No. 83 of 2019. In such suit, the

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respondent had applied under Chapter XIII A of the Original Side
Rules for a decree for eviction.
10. In the plaint, the respondents had claimed to be joint
owners of two immovable properties. They had claimed that, the
two registered lease deeds both dated September 10, 2008 were
executed by which, the appellant was granted lease of the suit
property. The respondents had pleaded in the plaint that,
negotiations were held after the expiry of the lease for
enhancement of rent which failed. The respondent had thereafter
filed the suit for the purpose of evicting the appellant.
11. The issue that has fallen for consideration is whether, the
suit as framed, involves a commercial dispute within the meaning
of the Act of 2015 or not.
12. According to the appellant, the suit involves a commercial
dispute within the meaning of Section 2(1)(c)(vii) of the Act of
2015. According to the appellant, the valuation of the suit is far
in excess of the minimum Specified Value under the Act of 2015
for a suit to be filed for the Commercial Division. Other
ingredients of Section 2(1)(c)(vii) of the Act of 2015 have been
satisfied.
13. Ambalal Sarabhai Enterprises Limited vs. K. S.
Infraspace LLP and Another (supra) has laid down that, the

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provisions of the Act of 2015 are to be strictly construed. It has
held that, immovable property involved must be used for
commerce or trade in presenti to come within such definition.
14. In order to come within the purview of Section 2(1)(c)(vii) of
the Act of 2015, it has to be established that, there exists an
agreement, in relation to an immovable property, used exclusively
for trade or commerce. In the facts and circumstances of the
present case, the suit properties are immovable properties in
respect of which, there were two lease deeds. The suit properties
were and still are used as a petrol pump.
15. T. E. Thomson and Co Ltd (supra) has decided the issues
that were referred to it, 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

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and thus, the suit cannot be treated as commercial suit in
terms of Section 2(1)(c)(vii) of the Commercial Courts Act, 2015?
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.”

16. Raptakos Brett and Co Ltd(supra) has considered the
issue of maintainability of a suit for eviction by an unregistered
partnership firm as owner of an immovable property, in the
context of bar under Section 69 (2) of the Indian Partnership Act,
1932 and the right of an unregistered partnership firm to sue on
the basis of a contract. It has held that, where the suit is based
on a composite cause of action, one part referring to breach a
specific covenant of lease by the erstwhile tenant on account of
its failure to deliver possession to the plaintiff and the expiry of
the term of lease and the second part was based on the failure of

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the defendant to comply with the statutory obligation under
Section 108 (q) and Section 111 (a) of the Transfer of Property
Act, 1882, then, although the suit was barred under Section 69
(2) of the Act of 1932 to the extent of the first part of the cause of
action, the second part of the cause of action was however not
barred. It has held that, a suit of such a nature is maintainable
at the instance of an unregistered partnership firm, and was not
barred under Section 69 (2) of the Act of 1932.
17. Haldiram Bhujiawala (supra) has held that, a suit is not
barred by Section 69 (2) of the Act of 1932 if a statutory right or
common law right is being enforced. In the facts and
circumstances of the present case, the plaintiffs have not claimed
that they were enforcing a common law right in the suit.
18. R. V. Bhupal Prasad (supra) has noted the distinctions
between a tenant holding over or a tenant at will and a tenant at
sufferance. It has held that, where a lease stands determined by
efflux of time, and the lessee continues in possession thereafter
in contravention of the terms of the lease, and without
acquiescence from the lessor, such possession is neither lawful
nor legal. It has held that, such a lessee, after expiry of the terms
of the lease by efflux of time, is a tenant at sufferance whose
possession is akin to a trespasser, though initially he had lawful

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entry. It has also held that, a tenancy at sufferance does not
create a relationship of landlord and tenant.
19. Mangilal (supra) has decided a decree for eviction passed
against a tenant governed by the provisions of the Madhya
Pradesh Accommodation Control Act, 1955. It has noticed that,
Section 4 of the Act of 1955 provided that no suit shall be filed in
any civil Court against a tenant for his eviction from any
accommodation except on one or more of the grounds set out in
that Section. It has held that, the provisions of Section 4 of the
Act of 1955 were in addition to those of the Act of 1882 and that,
before a tenant can be evicted by the landlord, there must be
compliance of both the provisions of Section 106 of the Act of
1882 and Section 4 of the Act of 1955.
th
20. Craies on Statute Law, 6 edition has observed that, similar
words in two statutes should have same meaning. In the facts of
this case, the words “arising out of” used in Section 69 (2) of the
Act of 1932 and Section 2 (1) (c) of the Act of 2015 have been
highlighted to contend that, those words should partake the
interpretation given in Raptakos Brett and Co Ltd (supra).
21. In the facts and circumstances of the present case, the
plaintiffs have pleaded in the plaint that, there were two lease
deeds which contained the same clause obligating the appellant

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to yield and deliver up vacant possession. The plaintiffs have
pleaded that, on the expiry of the initial period fixed under the
lease, negotiations had been entered into for the purpose of
renewal of the lease. Such negotiations had however failed. It has
also been pleaded in the plaint that, the appellant as the tenant
made over payments as rent subsequent to the expiry of the
initial period of the lease. The plaintiffs have claimed that, they
returned such payments allegedly on account of rent.
22. As in Raptakos Brett and Co Ltd (supra) where the
plaintiff had a composite cause of action, the respondents herein
as plaintiffs although one has filed the suit on the basis of
composite cause of action. The failure of the appellant to act in
terms of the clause of the lease deeds requiring it to yield and
deliver vacant possession is a part of the cause of action of the
respondents. In the facts and circumstances of the present case,
the statutory right of eviction has arisen out of the two lease
deeds, which according to the plaintiffs had expired by efflux of
time. The appellant having failed to discharge its obligation under
the two lease deeds to make over possession on the expiry of the
lease deeds, gave rise to the statutory right of the respondents to
sue for eviction, under the provisions of the Act of 1882. That

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apart, there is an issue of holding over as appearing from the
pleadings in the plaint.
23. The right to approach the Commercial Court is
circumscribed by the provisions of the Act of 2015. Section 12A
of the Act of 2015 which prescribes mandatory pre institution
mediation is recognised to be mandatory in nature. Institution of
a suit involving a commercial dispute within the meaning of the
Act of 2015 after the Act of 2015 coming into effect without
complying with Section 12A, is now judicially recognised to be an
invalid institution of the paint of dismissal of the suit. That being
so, Section 12A of the Act of 2015 vests all parties to the lis a
valuable right of pre institution mediation, subject to the plaintiff
not seeking any urgent interim relief. None of the parties to the
lis can waive the mandatory provision of pre institution
mediation, so long the plaintiff does not seek urgent interim
relief. However, if the plaintiff seeks urgent interim relief, it need
not undertake a pre-institution mediation. In such an
eventuality, the right of pre institution mediation of the parties is
withdrawn by the Act of 2015. Such eventuality does not
encompass the doctrine of waiver. It transmutes the mandatory
pre institution mediation right.

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24. The observations made in Raptakos Brett and Co Ltd
(supra) that, non-compliance of statutory obligation by the
defendant when made the subject matter of a corresponding legal
right of the erstwhile landlord cannot be said to be giving rise to
enforcement of any contractual right of the plaintiff arising from
the expired contract of tenancy, in our view, should not be read
to mean that, it has advocated that, the contract of tenancy or
lease can never ever be looked into for the purpose of
adjudicating whether or not, such statutory right arose for the
erstwhile landlord. In our view, the expired contract of lease is a
crucial piece of evidence in order to establish the corresponding
statutory right of the landlord to seek eviction.
25. T. E. Thomson and Co Ltd (supra) have also held that, the
expired lease deed is required to be considered in a suit for
eviction on the ground of expiry of the terms of lease.
26. In our view therefore, all three ingredients of Section 2 (1) (c)
(vii) of the Act of 2015 stand satisfied in the facts and
circumstances of the present case. Commercial disputes have
arisen, between the parties to the suit, in respect of two several
lease deeds, relating to the suit properties, which are used
presently in commerce. The plaintiffs have pleaded that, the
appellant is selling oil and lubricants from the suit premises

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which establishes its commercial user. The plaintiffs did not seek
urgent interim relief in the suit. Suit was instituted after coming
into effect of the Act of 2015.
27. The issue therefore framed in paragraph 11 herein, is
answered by holding that, the suit involves a commercial dispute
within the meaning of the Act of 2015.
28. Having answered such issue, and the suit having been filed
in the non-commercial division of the High Court subsequent to
the Act of 2015 coming into effect, the suit is not maintainable in
such jurisdiction. The impugned judgment and order dated
February 17, 2023 has therefore been passed by a Court not
having jurisdiction.
29. Consequently, APD 11 of 2023 is allowed. Judgment and
decree dated February 17, 2023 passed in CS No. 83 of 2019 is
set aside.
30. In course of hearing of the appeal we had enquired of the
respondents as to whether they would invite the Court to apply
provision of Order VII Rule 10 of the Code of Civil Procedure,
1908. The response was that the appeal may be heard and
disposed of on merits.

31. Consequently, since the respondents are not inviting return
of plaint, and since the suit as filed is before Court which lacks

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jurisdiction and in view of non-compliance with Section 12A of
the Act of 2015, C.S No. 83 of 2019 is dismissed.

[DEBANGSU BASAK, J.]
32. I agree.

[MD. SHABBAR RASHIDI, J.]