IMPORTANT POINT
The central legal point established in the judgment is the strict construction of the provisions of the Commercial Courts Act, the requirement to consider the nature of the proposed amendment before deciding jurisdiction, and the interpretation of the term 'commercial dispute' to emphasize the actual use of immovable property exclusively in trade and commerce.

JUDGMENT :

Soumen Sen, J.

The appellant is the plaintiff.

2. The appellant is aggrieved by an order dated 7th January, 2023 passed by the Judge, Commercial Court at Alipore in Money Suit 22 of 2021 in an application filed under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure.

3. The essential question arose before the determination of the learned Commercial Court was whether the dispute canvassed in the plaint is a “commercial dispute” within the meaning of Section 2(1)(c)(vii) of the Commercial Courts Act.

4. The learned trial Judge on consideration of the averments made in the original plaint held that the suit is non-commercial in nature and, accordingly, returned the suit to be filed before the court having jurisdiction to try as a non-commercial suit.

5. The plaintiff/appellant is aggrieved by this order.

6. Mr. Jishnu Chowdhury, the learned Counsel representing the appellant submits that the learned trial Judge has proceeded erroneously in accepting the representation made on behalf of the respondent that the property in question relates to ten residential flats and twelve car parking spaces which are currently “not used for commercial purpose” or “will be used for commercial purpose in future” and that the subject properties are wholly for residential purpose and cannot be used for any commercial transaction. It is submitted that although the plaintiff filed an application for amendment of the plaint the learned trial Judge disregarding the well settled principles that an application for amendment was required to be heard first, decided the application for rejection of the plaint thereby preventing the plaintiff from curing the defects.

7. Mr. Chowdhury in this regard has relied upon the two decisions of our court namely, Nellimarla Jute Mills Company Ltd. v. Rampuria Industries & Investments Ltd. reported at (2009) 3 CHN 24 and Ahmed Hossain v. Chambelli reported at (1949) ILR 606 and has submitted that an order passed for return of the plaint is required to be set aside due to such serious procedural lapse. It is submitted that the learned trial Court has failed to take into consideration that the agreement dated 30th March, 2015 and 2nd December, 2016 between the parties would clearly show that the agreements are in respect of immovable property being exclusively used for trade and commerce. It is further submitted that the learned trial Judge has failed to take into consideration the observation of the Hon’ble Supreme Court In Ambalal Sarabhai Enterprise Limited v. K.S Infra Space LLP & Anr., reported in 2020 (15) SCC 585 in which it has been specifically held that the agreement relating to immovable property used “exclusively in trade or commerce” would be a commercial dispute.

8. Mr. Chowdhury has also referred to the schedule of amendments proposed in the application for amendment in the plaint to show that it has been categorically stated in the proposed amendment that the erstwhile tenants of the plaintiff are still carrying on business in the suit property. The proposed schedule of the amendment is reproduced below:

“The plaintiff states that the agreements dated 30th March, 2015 and 2nd December, 2016 between the parties are in respect of the immovable suit property which is being used exclusively in trade or commerce and it is a commercial property The erstwhile tenants of the plaintiff are still carrying on business from the suit property. The certificates of enlistment issued by the Kolkata Municipal Corporation to the tenants who are carrying on business from the suit property are annexed hereto and marked with the letter "F". The plaintiff has also issued letters of attornment through which the tenancies in the suit property were transferred in favour of the defendant, copies whereof are annexed hereto and marked with the letter "G".”

9. Per contra, Mr. Arindam Banerjee learned Counsel