Form No. J(2)

IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Appellate Side Present :

The Hon’ble Justice Hiranmay Bhattacharyy C.O. 1759 of 2024 M/s. Soumita Realty and Infrastructure Pvt. Ltd.

-Versus-

Atanu Mondal & Ors.

For the petitioner : Mr. Arijit Bardhan Ms. Soumyajit Mishra Ms. Gourab Mondal For the Opposite parties : Mr. Partha Pratim Roy Mr. Nemai Chandra Betal Heard On: : 02.08.2025 Judgment On: : 02.08.2025.

Hiranmay Bhattacharyya, J.

1. Affidavit of service filed in Court today is taken on record.

2. This application under Article 227 of the Constitution of India is at the instance of an applicant under Section 34 of the Arbitration and Conciliation Act, 1996 and is directed against an order dated June 13, 2023 passed by the learned Additional District Judge, Fast Track, 5^th Court, Barasat, North 24 Parganas in Miscellaneous Case No. 24 of 2022 (Arb).

3. By the order impugned the said miscellaneous case was held to be not maintainable before that court and it was further held that the same ought to have been filed before the learned Commercial Court.

4. The petitioner and the opposite parties herein entered into a development agreement for the purpose of developing several plots of land which have been specifically described in the first schedule of the development agreement dated 2^nd May, 2016. A dispute cropped up between the parties with regard to the development agreement and such dispute was referred to arbitration before the sole arbitrator nominated by the opposite parties. The sole arbitrator passed an award dated 11th March, 2022. Being aggrieved by such award the petitioner filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 being Miscellaneous Case No. 24 of 2022 (Arb) before the learned District Judge, North 24 Parganas at Barasat. The said miscellaneous case was thereafter transferred to the court of the Additional District Judge, Fast Track, 5th Court at Barasat. The opposite parties filed an application raising an objection as to the maintainability of the said miscellaneous case before that court. The learned Additional District Judge, by the order impugned, observed that the arbitration arose out of a subject matter which by the nature of the agreement is a commercial dispute and held that the same ought to have been filed before the learned commercial court and was not maintainable before that court.

5. Mr. Bardhan, learned advocate appearing for the petitioner draws the attention of the Court to several clauses of the development agreement in support of his contention that the same cannot be construed as a joint venture agreement. As to what is the difference between a joint venture agreement and a development agreement, Mr. Bardhan, learned advocate places reliance upon a decision of the Hon’ble Supreme Court in the case Faqir Chand Gulati Vs. Uppal Agencies Private Limited and another reported at (2008) 10 SCC 345

6. Mr. Bardhan, learned advocate submits that the learned Additional District Judge was swayed by the averments made in the maintainability application that the agreement in question was a joint venture agreement and held that the dispute between the parties before the arbitral tribunal is a commercial dispute. He further submits that the agreement in question relates to an immovable property which is not exclusively used for the purpose of trade or commerce and, therefore, the same cannot come within the scope of sub-clause (vii) of Clause (c) of sub-section (1) of Section 2 of the Commercial Courts Act, 2015. He submits that the agreement in question was styled as a development agreement and not as a joint venture agreement and, therefore, the same would not fall within sub-clause (xi) of Section 2(1)( c) of the 2015 Act. He concludes by submitting that the learned Additional District Judge without considering the nature and scope of the agreement in question held that the dispute between the parties is a “commercial dispute”

within the meaning of