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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

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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

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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 appe llants 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

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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.

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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 wr itten

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

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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 th erefore 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 )

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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 re covery 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 con tended 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

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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

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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

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provided that the appellants would vacate the schedule B

property on or before March 16, 2018.

23. Tarun Kumar Guha had expired on Decemb er 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 Decem ber

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

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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 month s 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

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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

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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 pecunia ry

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

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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

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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

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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 disput e and fall within the

jurisdiction of the Commercial Court or the Commercial

Division as the case may be. The subject matter of the suit

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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 wit hin

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

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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.

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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?

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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.

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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 p remises. 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 claim s. The

respondents have based their money claims on the

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agreements governing the rent and maintenance payable. The

agreements relate to an immov able 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.

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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

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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

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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 unde r 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-

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(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-

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(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, 190 8 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 interfer e 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 .]