Judgment :

Tapabrata Chakraborty, J.

1. The appellant/defendant has challenged an order dated 16.05.2024 passed by the learned Single Judge dismissing an application being IA No. G.A. 02 of 2023 under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as the Code) filed in connection with the suit for specific performance being CS 98 of 2023.

2. For adjudication of the lis, the following dates would be necessary.

a) 11.11.2022 – Basant Properties Limited executed a deed of conveyance pertaining to land and buildings detailed in Schedule ‘A’ of the deed (hereinafter referred to as the said property) in favour of the Lord Grih Nirman Private Limited, the appellant/defendant;

b) 11.11.2022– Merlin Projects Limited, the respondent/plaintiff and the appellant executed a term sheet for entering into a Joint Development Agreement (hereinafter referred to as the JDA) and the respondent paid an amount of Rs. 2 crores to the appellant as a refundable deposit;

c) 21.04.2023 – The appellant’s advocate forwarded the final draft of the JDA to the respondent;

d) 20.05.2023 – By an e-mail, the respondent requested the appellant to arrange for execution of the JDA as early as possible;

e) 22.05.2023 – The respondent paid a further amount of Rs.3 crores to the appellant as a refundable deposit with a request to intimate the date when the JDA would be executed;

f) 22.05.2023 – The appellant by an e-mail to the respondent described the document to be a ‘void document’ and refunded Rs. 5 crores to the respondent by RTGS;

g) 01.06.2023 – The respondent preferred the suit being CS No. 98 of 2023 inter alia praying for a decree for specific performance of the agreement as per the term sheet dated 11.11.2022 and to execute and register the JDA;

h) 18.06.2023 – The appellant filed an application under Order VII Rule 11 of the Code being IA No. G.A. 02 of 2023 inter alia praying for rejection of the plaint;

i) 16.05.2024 – Order passed by the learned Single Judge dismissing the application being IA No. G.A. 02 of 2023;

j) 18.06.2024 – Appeal filed by the respondent challenging the order dated 16.05.2024;

3. Discussing and deliberating upon the arguments as advanced by the learned advocates appearing for the respective parties, the learned Single Judge delved into two facets of the lis; one – as to whether any development/joint venture agreement was executed by the parties and the other - as to whether the dispute involved in the suit is a commercial dispute as defined under Section 2(1)(c) of the Commercial Courts Act 2015 (hereinafter referred to as the 2015 Act).

4. Drawing our attention to the averments made in the plaint, Mr. Mookherjee, learned Senior Advocate appearing for the appellant has urged that the term sheet is a construction contract and is hit by the rigours of the provisions of Sections 2(1)(c)(vi), 2(1)(c)(vii) and 2(a)(xi) of the 2015 Act. The learned Single Judge erroneously observed that the dispute involved in the suit is not a commercial dispute. No reason, however, stands disclosed in the order as to why the dispute amongst the parties is not a commercial one. An agreement which is for construction of a building, whether for residential or commercial use, is a construction contract under the 2015 Act. Elaborating such argument, he submits that such a jurisdictional issue has to be decided at the threshold, on the basis of the averments made in the plaint and the Court is empowered to summarily dismiss the suit without proceeding to record evidence and conducting a trial. Reliance has been placed upon the judgments delivered in the cases of Liverpool and London S.P. & I Association Limited vs. M.V. Sea Success I and Another, reported in (2004) 9 SCC 512, Natraj Studios Private Limited vs. Navrang Studios & Anr., reported in (1981) 1 SCC 523, Abdulla Bin Ali vs. Galappa & Ors., reported in (1985) 2 SCC 54 and Asma Lateef & anr. v. Shabbir Ahmed & Ors., reported in (2024) 4 SCC 696.

5. According to Mr. Mookherjee, the Courts