Ashok Kaura & Ors. vs S. Shalu Constructions
- Court
- Delhi High Court
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 05.05.2026
Date of decision: 24.07.2026
+ FAO(OS) 56/2026 & CM APPL. 30082/2026
ASHOK KAURA & ORS. .....Appellants
Through: Mr. Anupam Srivastava, Senior
Advocate with Mr. Archit Singh,
Mr. Vasuh Misra, Mr. Devesh Bhatia
and Ms. Shreya Kunwar, Advocates.
versus
S. SHALU CONSTRUCTIONS .....Respondent
Through: Mr. Jai Sahai Endlaw and
Ms. Sagarika Kaul, Advocates.
CORAM:
HON'BLE MR. JUSTICE VIVEK CHAUDHARY
HON'BLE MS. JUSTICE RENU BHATNAGAR
J U D G M E N T
1. The present appeal has been filed by the Appellants under Section 10 of
the Delhi High Court Act, 1966 assailing the Judgment dated 11.03.2026
passed by the learned Single Judge in I.A.8516/2024 of CS (OS) 813/2023
titled as M/s Shalu Constructions V. Ashok Kaura and Ors. , whereby,
application preferred by the Appellants under Order VII Rule 11 of the Code
of Civil Procedure, 1908 (“CPC”) was dismissed.
2. The controversy in the present appeal is confined to two preliminary
issues raised by the Appellants. The first is whether, as per plaint, the suit
is ex facie barred by limitation so as to warrant rejection of the plaint under
Order VII Rule 11 of CPC. The second issue pertains to the maintainability of
Signature Not Verified
FAO(OS) 56/2026 Page 1 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41
the suit on the ground that the Respondent had not complied with the
mandatory requirement of pre-institution mediation contemplated under
Section 12A of the Commercial Courts Act, 2015.
3. Briefly stated, the Respondent is a company engaged in the business of
redevelopment of immovable properties in Delhi, while the Appellants are the
joint owners of property bearing No. A-72, New Friends Colony, New Delhi,
admeasuring 492 square yards (“ Suit Property ”).
4. As per the plaint, in January, 2013, the Appellants approached the
Respondent expressing their willingness to redevelop the Suit Property. It is
pleaded that Appellants claimed themselves as the joint owners of the Suit
Property, while simultaneously disclosing that two litigations concerning the
Suit Property were pending before this Court, namely: (i) CS (OS) No. 649 of
2010, a suit for partition and (ii) CS (OS) No. 1448 of 2010, a suit for specific
performance. The Appellants stated to have required financial assistance to
amicably settle the pending disputes and execute a favourable collaboration
arrangement with the Respondent in terms of the preliminary decree dated
09.07.2010 in partition suit CS (OS) No. 649 of 2010.
5. Acting upon the aforesaid representation, the parties executed the
Collaboration Agreement dated 01.02.2013. Under the said Agreement, the
Respondent agreed to undertake demolition of the existing structure and
redevelop the Suit Property by constructing a building comprising a
basement, stilt, ground floor, first floor, second floor, third floor and
terrace(s). The total monetary consideration payable to the Appellants was
agreed at Rs. 7.50 crores, apart from the allocation of specified portions of the
redeveloped suit property between the parties in accordance with the terms of
the Agreement.
Signature Not Verified
FAO(OS) 56/2026 Page 2 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41
6. Simultaneously with the execution of the Collaboration Agreement, the
Respondent claims to have paid a sum of Rs.2 crores in cash to Appellant
Nos. 2 and 3, acknowledged vide Receipts dated 01.02.2013 and also forms
part of the Collaboration Agreement. The plaint further avers that additional
payments of Rs. 20,00,000/- on 16.03.2013 and Rs.12,00,000/- on 01.11.2013
were subsequently made to facilitate settlement of the pending litigations
concerning the suit property.
7. It is averred that the suit for specific performance instituted by Mr. Ajit
Pal Singh bearing CS (OS) No. 1448/2010, came to be withdrawn on
11.07.2013. Thereafter, in furtherance of the Collaboration Agreement, the
Respondent applied for sanction of building plans before the South Delhi
Municipal Corporation, deposited requisite municipal charges and obtained
sanction of the building plans in October 2013.
8. According to the Respondent, notwithstanding to the aforesaid steps
being taken on its part, the Appellants failed to perform the obligations casted
upon them under the said Agreement. The plaint specifically pleads that the
Appellants were required to secure conclusion of pending partition
proceedings, obtain mutation of the suit property in their favour, procure
conversion of the property from leasehold to freehold and thereafter hand
over the vacant possession of the suit property to enable redevelopment as
mentioned in para 11 of the plaint.
9. The plaint further avers that the partition proceedings continued for
several years owing to issues relating to the valuation of the suit property and
preparation of the decree sheet and eventually culminated only on
14.07.2022, when directions were issued for preparation of the final decree.
According to the Respondent, despite repeated assurances by the Appellants,
Signature Not Verified
FAO(OS) 56/2026 Page 3 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41
that possession would be handed over immediately upon completion of the
aforesaid procedure, they failed to perform their contractual obligation.
10. It is further pleaded that the Respondent subsequently learnt that the
Appellants were attempting to alienate the Suit Property to third parties for
higher consideration in breach of the Collaboration Agreement.
Consequently, the Respondent issued a public notice dated 04.11.2023 in
Hindustan Times, asserting its contractual rights with respect to the Suit
Property and thereafter served a legal notice dated 08.11.2023 calling upon
the Appellants to perform their obligations under the Collaboration
Agreement by handing over possession of the Suit Property within fifteen
days. However, despite service of the legal notice, the Appellants failed to
hand over the physical possession of the Suit Property to the Respondent.
Aggrieved, the Respondent instituted CS(OS) No. 813/2023 seeking, inter
alia , specific performance of the Collaboration Agreement dated 01.02.2013,
permanent injunction restraining alienation of the Suit Property and, in the
alternative, recovery of Rs. 2,44,38,350/- altogether with interest.
11. During the pendency of the suit, the Appellants filed an application
under Order VII Rule 11 of CPC, contending that the suit was barred by
limitation under Article 54 of the Limitation Act, 1963 and that the institution
of suit without resorting to the mandatory pre-institution mediation under
Section 12A of the Commercial Courts Act, 2015, renders the suit
non-maintainable.
12. The said application was dismissed vide Order dated 11.03.2026,
Aggrieved thereby, the Appellants preferred the present appeal.
13. The impugned order is assailed by the learned counsel for the
Appellants submitting that the learned Single Judge erred in holding that the
Signature Not Verified
FAO(OS) 56/2026 Page 4 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41
suit could not be rejected at the threshold on the ground of limitation.
According to the Appellants, the bar of limitation is evident from the
averments contained in the plaint itself. It was pointed out that the
Collaboration Agreement was admittedly executed on 01.02.2013; substantial
payments are stated to have been made during the course of 2013; the
sanction plans were obtained in October 2013; and one of the receipts relied
upon by the Respondent specifically records that possession of the Suit
Property was to be handed over on or before 05.02.2014. In these
circumstances, it was contended that, even if every averment in the plaint is
accepted as correct, the latest point from which limitation could begin to run
was 05.02.2014. Consequently, the suit instituted in December 2023 is, on the
face of the plaint, barred by limitation under Article 54 of the Limitation Act.
14. It was further argued that the Respondent has sought to circumvent the
law of limitation by placing reliance on subsequent events, namely, the
pendency of the partition proceedings and the preparation of the decree sheet
therein. According to the Appellants, neither of these developments have any
nexus with the commencement of limitation under the Collaboration
Agreement. It was submitted that the starting point of limitation cannot be
shifted merely because one party continued to hope or expect that the other
would ultimately honour its contractual obligations.
15. On the question of maintainability, learned counsel submitted that the
dispute is plainly a “commercial dispute” within the meaning of Section
2(1)(c) of the Commercial Courts Act, 2015, since the Collaboration
Agreement relates to redevelopment of the property for valuable
consideration. It was, therefore, contended that compliance with the
mandatory requirement of pre-institution mediation under Section 12A of the
Signature Not Verified
FAO(OS) 56/2026 Page 5 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41
said Act was a condition precedent to the institution of the suit. As the
Respondent admittedly instituted the suit without first resorting to
pre-institution mediation, the suit itself was not maintainable.
16. Per contra, learned counsel appearing on behalf of the Respondent
supports the impugned order and contend that the same does not warrant any
interference by this Court.
17. We have heard learned counsel for the parties and perused the material
placed on record.
18. The questions that arise for consideration before this Court are as
follows:
a. Whether, on a meaningful reading of the plaint and the
documents accompanying it, the suit is ex facie barred by
limitation so as to warrant rejection of the plaint under Order VII
Rule 11(d) of the CPC?
b. Whether the suit is liable to be rejected for alleged
non-compliance with Section 12A of the Commercial Courts
Act, 2015?
19. The principal submission advanced on behalf of the Appellants is that
the suit, having been instituted in December 2023, is clearly barred by
limitation. According to the Appellants, the Collaboration Agreement was
executed on 01.02.2013 and one of the receipt dated 01.11.2013 relied upon
by the Respondent itself stipulates that possession of the Suit Property was to
be handed over on or before 05.02.2014. It is, therefore, contended that the
period of limitation commenced, at the latest, from the said date.
Signature Not Verified
FAO(OS) 56/2026 Page 6 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41
20. A suit for specific performance is governed by Article 54 of the
Limitation Act, 1963, which prescribes a period of three years. The limitation
begins to run either from the date fixed for performance or, where no such
date has been fixed, from the date on which the plaintiff has notice that
performance has been refused.
21. In Ahmadsahab Abdul Mulla (2) v. Bibijan & Ors., (2009) 5 SCC
462 , the Supreme Court explained that the expression “date fixed for the
performance” occurring in Article 54 of the Limitation Act contemplates a
definite and ascertainable date agreed upon between the parties for
performance of the contract. Where the contract does not specify such a fixed
date, the second part of Article 54 comes into operation, and the period of
limitation begins only when the plaintiff has notice that the defendant has
refused to perform the contract. It has been held as under:
“11. The inevitable conclusion is that the expression “date
fixed for the performance” is a crystallised notion. This is clear
from the fact that the second part “time from which period
begins to run” refers to a case where no such date is fixed. To
put it differently, when date is fixed it means that there is a
definite date fixed for doing a particular act. Even in the second
part the stress is on “when the plaintiff has notice that
performance is refused”. Here again, there is a definite point of
time, when the plaintiff notices the refusal. In that sense both the
parts refer to definite dates. So, there is no question of finding
out an intention from other circumstances.”
22. The plaint in the present case does not merely plead the execution of
the Collaboration Agreement. It also avers that, under the terms of the
agreement, the Appellants were first required to fulfil certain obligations
before the Respondent could proceed with the redevelopment of the Suit
Property. The relevant para of the plaint as mentioned below-
Signature Not Verified
FAO(OS) 56/2026 Page 7 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41
“11. It is pertinent to note that under the Collaboration
Agreement, the Defendants were required to settle their
litigations, obtain mutation of the Suit Property in their names
and also have the Property converted from leasehold to
freehold. The Defendants informed the Plaintiff that they would
fulfill the aforesaid requirements and handover possession as
soon as the decree sheet is prepared and the settlement deed is
registered, which however was taking time as the court had
sought valuation of the Suit Property . The Registry of this
Hon’ble Court had issued dated 03.09.2016 seeking valuation
report of the Suit Property in order to ascertain the quantum of
stamp duty. Vide order dated 28.09.2018, court notice was also
issued to the Principal Secretary (Revenue) and the concerned
SDM to furnish the valuation reports of the Suit Property.
However, the same was not filed and the proceedings remained
pending on account of valuation as reflected in orders dated
18.12.2018, 15.01.2019, 14.03.2019, 20.03.2019, 22.05.2019
and 01.10.2019. The Defendant No. 1 in the meantime also filed
an application being IA No. 4076 of 2019 under Order6A(1) of
CPC read with Section 2(15) of the Indian Stamp Act and
Section 151 of the Code of Civil Procedure, 1908.However, the
said application was not taken up at the request of the
Defendant No. 1 as noted in the order dated
01.10.2019.Thereafter, due to the onset of the pandemic
Covid-19, the Government of India had imposed a lockdown in
the country on 24.03.2020 and the same remained in operation
until30.06.2020. The suit was taken up only on 20.04.2022 and
finally on 14.07.2022.”
23. As per the plaint, the Respondent does not treat delivery of possession
as an independent obligation. Rather, the plaint avers that possession was to
be handed over only after completion of the partition proceedings, mutation
of the Suit Property, and its conversion from leasehold to freehold as
mentioned above. Whether these obligations were intended by the parties to
operate as conditions precedent to redevelopment is not an issue that can be
answered at this stage. It necessarily requires a proper construction of the
Collaboration Agreement in the light of the surrounding facts and, the
evidence that may be adduced by the parties.
Signature Not Verified
FAO(OS) 56/2026 Page 8 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41
24. The legal position is fortified by the decision of the Supreme Court in
Panchanan Dhara & Ors. v. Monmatha Nath Maity & Anr., (2006) 5 SCC
340 , while considering when limitation under Article 54 of the Limitation Act
begins to run where performance of the contract depends upon fulfilment of
certain preconditions or reciprocal obligations, the Supreme Court held:
“22. A bare perusal of Article 54 of the Limitation Act would
show that the period of limitation begins to run from the date on
which the contract was to be specifically performed. In terms of
Article 54 of the Limitation Act, the period prescribed therein
shall begin from the date fixed for the performance of the
contract. The contract is to be performed by both the parties to
the agreement. In this case, the first respondent was to offer the
balance amount to the Company, which would be subject to its
showing that it had a perfect title over the property. We have
noticed hereinbefore that the courts below arrived at a finding
of fact that the period of performance of the agreement has been
extended. Extension of (sic time for performance of a) contract
is not necessarily to be inferred from written document. It could
be implied also. The conduct of the parties in this behalf is
relevant. Once a finding of fact has been arrived at, that the
time for performance of the said contract had been extended by
the parties, the time to file a suit shall be deemed to start
running only when the plaintiff had notice that performance had
been refused. Performance of the said contract was refused by
the Company only on 21-8-1985. The suit was filed soon
thereafter. The submission of Mr Mishra that the time fixed for
completion of the transaction was determinable with reference
to the event of perfection of title of the second respondent
cannot be accepted. The said plea had never been raised before
the courts below. Had such a plea been raised, an appropriate
issue could have been framed. The parties could have adduced
evidence thereupon. Such a plea for the first time before this
Court cannot be allowed to be raised. Even otherwise on a bare
perusal of the agreement for sale dated 18-4-1971, it does not
appear that it was intended by the parties that the limitation
would begin to run from the date of perfection of title.
*
27. Performance of a contract may be dependent upon several
factors including grant of permission by the statutory authority
in appropriate cases. If a certain statutory formality is required
to be complied with or permission is required to be obtained, a
Signature Not Verified
FAO(OS) 56/2026 Page 9 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41
deed of sale cannot be registered till the said requirements are
complied with. In a given situation, the vendor may not be
permitted to take advantage of his own wrong in not taking
steps for complying with the statutory provisions and then to
raise a plea of limitation.”
(emphasis supplied)
25. At this stage, this Court is unable to accept the submission of the
Appellants that the limitation for filing the suit commenced in the year 2013.
As the plaint claims that the Appellants had themselves stated that they would
hand over the possession of the Suit Property only after settlement of the
pending litigations, obtaining mutation of the Suit Property in their favour and
conversion thereof from leasehold to freehold. The plaint further specifically
avers that the proceedings attained finality only in the year 2022, whereafter
the Appellants became obliged to perform their part of the contract. On the
basis of the averments in the plaint, as is mandatory while considering an
application under Order VII Rule 11 CPC, the cause of action to seek specific
performance cannot be said to have arisen prior to 2022 as the pending
partition proceedings became final in 2022 only. While considering an
application under Order VII Rule 11 of the CPC, the Court is required to
proceed on the assumption that the averments made in the plaint are correct.
On such an assumption, it cannot be said that the Respondent's right to seek
specific performance had arisen before the partition proceedings attained
finality in the year 2022. The plaint further states, that, thereafter, the
Respondent issued a legal notice dated 08.11.2023 calling upon the
Appellants to discharge their obligations under the Collaboration Agreement
by handing over possession of the Suit Property within fifteen days, but the
Appellants failed to perform their obligations. In view of these averments, it
cannot be said, on a meaningful reading of the plaint, that at this stage, the suit
Signature Not Verified
FAO(OS) 56/2026 Page 10 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41
instituted in the year 2023 is ex facie barred by limitation under Article 54 of
the Limitation Act, 1963.
26. Whether these obligations were, in fact, conditions precedent to the
Respondent's performance is plainly a matter that can be determined only
after a full-fledged trial. Equally, whether the Respondent was justified in
awaiting fulfilment of those obligations before seeking enforcement of the
agreement cannot be decided solely on the basis of the plaint while
considering an application under Order VII Rule 11 of the Code. At this stage,
any conclusive interpretation of the Collaboration Agreement and
surrounding circumstances would be premature. The true import of its terms
and the sequence in which the parties were required to perform their
respective obligations, are matters that fall for determination by the learned
Trial Court after issues have been framed and the parties have led evidence.
27. The scope of enquiry under Order VII Rule 11 of the CPC is well
settled. At this stage, the Court is required to examine only the averments
contained in the plaint and the documents filed along with the plaint. It is a
settled principle of law that the plaint must be read as a whole and in a
meaningful manner to ascertain whether the suit is barred by law. Also, while
considering an application under Order VII Rule 11 of CPC, the Court must
proceed on the assumption that the averments contained in the plaint are
correct, without embarking upon an enquiry into their truthfulness or
otherwise. In Popat and Kotecha Property v. State Bank of India Staff
Association, (2005) 7 SCC 510 , where the Supreme Court held as under:
“10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears
from the statement in the plaint to be barred by any law.
Disputed questions cannot be decided at the time of considering
an application filed under Order 7 Rule 11 CPC. Clause (d) of
Signature Not Verified
FAO(OS) 56/2026 Page 11 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41
Rule 11 of Order 7 applies in those cases only where the
statement made by the plaintiff in the plaint, without any doubt
or dispute shows that the suit is barred by any law in force.”
28. In Urvashiben & Anr. v. Krishnakant Manuprasad Trivedi, (2019) 13
SCC 372 , the Supreme Court held:
“ 20. By applying the aforesaid principles in the judgments
relied on by Shri Dushyant A. Dave, learned Senior Counsel
appearing for the respondent, we are of the considered view
that merits and demerits of the matter cannot be gone into at
this stage, while deciding an application filed under Order 7
Rule 11CPC. It is fairly well settled that at this stage only
averments in the plaint are to be looked into and from a reading
of the averments in the plaint in the case on hand, it cannot be
said that the suit is barred by limitation. The issue as to when
the plaintiff had noticed refusal, is an issue which can be
adjudicated after trial. Even assuming that there is inordinate
delay and laches on the part of the plaintiff, same cannot be a
ground for rejection of plaint under Order 7 Rule 11(d)CPC.”
29. In Balasaria Construction (P) Ltd. v. Hanuman Seva Trus & Ors.,
(2006) 5 SCC 658, the Supreme Court held that where the question of
limitation is a mixed question of law and fact, the plaint cannot be rejected
under Order VII Rule 11 CPC. The relevant extract is reproduced as under:
“8. After hearing counsel for the parties, going through the
plaint, application under Order 7 Rule 11(d) CPC and the
judgments of the trial court and the High Court, we are of the
opinion that the present suit could not be dismissed as barred by
limitation without proper pleadings, framing of an issue of
limitation and taking of evidence. Question of limitation is a
mixed question of law and fact. Ex facie in the present case on
the reading of the plaint it cannot be held that the suit is barred
by time. The findings recorded by the High Court touching upon
the merits of the dispute are set aside but the conclusion arrived
at by the High Court is affirmed. We agree with the view taken
by the trial court that a plaint cannot be rejected under Order 7
Rule 11(d) of the Code of Civil Procedure.”
Signature Not Verified
FAO(OS) 56/2026 Page 12 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41
30. The principles that emerge from the aforesaid decisions make it clear
that the expression “ mixed question of law and fact ” is not to be employed as
a matter of routine. Before declining to examine a plea of limitation at the
threshold, the Court must first determine whether the plaint, on its own
showing, unequivocally discloses that the suit is barred by limitation. If it
does, the plaint may be rejected under Order VII Rule 11(d) of the Code.
However, where the issue of limitation turns on disputed questions
concerning the conduct of the parties, the nature and sequence of their
reciprocal obligations, waiver, extension of time, readiness and willingness to
perform, or the point at which the plaintiff first had notice of refusal, the
matter necessarily requires adjudication on evidence. In such a situation,
rejection of the plaint at the threshold would be wholly unwarranted.
31. Applying the aforesaid principles to the facts of the present case, we are
unable to accept the contention that the plaint admits of only one conclusion,
namely, that the suit is barred by limitation.
32. Another aspect that remains for consideration is with respect to the
non-compliance with Section 12A of the Commercial Courts Act, 2015. The
Appellants contend that the present dispute arises out of a Collaboration
Agreement involving redevelopment of property for consideration and,
therefore, falls within the ambit of a “Commercial dispute” under Section
2(1)(c) of the Commercial Courts Act, 2015, which is disputed by the
Respondent.
33. The Division Bench of this Court in Asif Ali Khan v. Manoj Kumar,
2024 SCC OnLine Del 2083 , held as under:
“11. The learned counsel appearing for the appellant submits that the
disputes involved in the present petition would also be covered as a
Signature Not Verified
FAO(OS) 56/2026 Page 13 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41
commercial dispute under Clause (vi) of Section 2(1)(c) of the CC Act.
The said clause reads as under:
“(vi) construction and infrastructure contracts, including tenders;”
12. The Agreement to Sell is in the nature of a contract for sale and
purchase of immovable property; it is not a construction contract as
contemplated under Clause 2(1)(vi) of the CC Act. Merely, because the
payment of instalments of the purchase consideration is linked to the
stage of construction, does not change the nature of the Agreement to
Sell to a construction contract. A plain reading of the Agreement to
Sell indicates that it is an agreement for purchase of a flat. In terms of
the Agreement to Sell, the respondent had agreed to deliver the
possession of the said flat on or before December, 2017 in a semi
furnished stage - with fan, light, geyser, exhaust fan, Kent RO,
chimney, modular kitchen, one wardrobe extra. Notwithstanding the
clear terms of the Agreement to Sell, the learned counsel submits that
since the Collaboration Agreement was for redevelopment of the
subject property, the Agreement to Sell is required to be considered in
the same light. The said contention is insubstantial. It is the appellant's
case that the respondent was entitled to sell a portion of the property,
which was agreed to be redeveloped in terms of the Collaboration
Agreement.
13. The learned counsel appearing for the appellant, at this stage,
seeks to advance the contention, which is in variation with the
pleadings in the plaint. He submits that since the first floor of the
property fell into the share of the owners, the Agreement to Sell must
be considered as a construction contract. He submits that as the
Collaboration Agreement was for development of the subject property
and the respondent was merely acting as an agent of the owners. This
contention is also insubstantial apart from being in variation with the
pleadings. Whether the said flat would fall to the share of the developer
(the respondent) or the owner of the subject property makes little
difference to the nature of the dispute involved. As noted above, the
Agreement to Sell is a contract for sale and purchase of a residential
flat; not a construction contract.”
Signature Not Verified
FAO(OS) 56/2026 Page 14 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41
34. The aforesaid ratio laid down by the Division Bench of this Court in
Asif Ali Khan (supra) squarely applies to the present case.The Collaboration
Agreement in the present case bears the same essential features. The
Respondent was not engaged merely to undertake construction for monetary
consideration. Under the terms of the agreement, it was to receive specified
portions of the building, together with a proportionate undivided interest in
the land appurtenant thereto. The rights so created are proprietary in character
and extend beyond those ordinarily arising under a pure construction contract.
The transaction, therefore, cannot be brought within the ambit of a
construction contract contemplated under Section 2(1)(c)(vi) of the
Commercial Courts Act. Once it is found that the dispute does not fall within
the scope of a "commercial dispute" as defined under Section 2(1)(c) of the
Commercial Courts Act, 2015, the mandate of pre-institution mediation under
Section 12A of the Act has no application.
35. We are, therefore, of the considered opinion that the learned Single
Judge committed no error in declining to reject the plaint under Order VII
Rule 11 CPC. The impugned order does not warrant interference in appeal.
36. The appeal is accordingly dismissed, along with all pending
applications, if any.
VIVEK CHAUDHARY
(JUDGE)
RENU BHATNAGAR
(JUDGE)
JULY 24, 2026 /kp/ss
Signature Not Verified
FAO(OS) 56/2026 Page 15 of 15
Digitally Signed
By:RAHUL
Signing Date:24.07.2026
17:09:41