IN THE HIGH COURT AT CALCUTTA

Civil Appellate Jurisdiction

ORIGINAL SIDE

APOT/68/2025

WITH

CS/220/2021

IA NO: GA/1/2025

MOLINA DEY

VS

RUNA KUNDU

wt2

OCOT/4/2025

SMT MOLINA DEY

VS

RUNA KUNDU

BEFORE:

The Hon'ble JUSTICE ARIJIT BANERJEE

AND

The Hon'ble JUSTICE RAI CHATTOPADHYAY

For appellant : Mr. Sabyasachi Chowdhury, Sr. Adv.

Mr. Meghnad Dutta, Adv.

Mr. Arindam Paul, Adv

Mr. Abhishek Shaw, Adv.

For the respondent : Mr. Amitava Mukherjee, Sr. Adv.

Mr. Lalratan Mondal, Adv.

Ms. Antara Das, Adv.

Ms. Munmun Dubey, Adv.

Ms. Arpita Saha, Adv.

Judgment on : 20.08.2025

Arijit Banerjee, J. :-

1. This appeal and cross-objection are directed against a judgment and order dated February 12, 2025, passed by a learned Judge of this Court in

GA no. 9 of 2023 filed on CS no. 222 of 2021.

2. The appellant, Smt. Molina Dey (in short Molina) has filed the suit against the defendant, Smt. Runa Kundu (in short Runa), for eviction,

recovery of khas possession of the suit premises and mesne profits. Runa filed an application for rejection of the plaint. It is that application which was disposed of by the learned Single Judge with a direction that the plaint to be returned to the plaintiff i.e., Molina, with liberty to file the same before the appropriate Court in accordance with law. The learned Judge came to the conclusion that the suit is a commercial suit and therefore ought to be filed in the Commercial Division of the High Court. Being aggrieved, Molina, the plaintiff, has filed the instant appeal.

3. Runa has filed a cross appeal being aggrieved by certain findings/observations of the learned Single Judge.

4. We have heard the appeal and the cross appeal together, by consent of the parties.

5. The undisputed facts of the case are that Molina and her husband purchased the suit premises on April 28, 1993, and thereby became joint absolute owners thereof.

6. One Satya Ranjan Kundu was a monthly tenant under Molina and her husband in respect of the suit premises. Satya Ranjan died on September 24, 1998. Thereafter, the tenancy was transferred in the name of his wife, Smt. Durga Rani Kundu. Molina’s husband died on June 5, 2008. Molina became the sole and absolute owner of the suit premises. Durga Rani continued as monthly tenant under Molina.

7. Durga Rani died on May 27, 2015, leaving behind her son Prabir Kumar Kundu as her only legal heir and representative. Prabir continued to be in occupation of the suit premises as tenant under Molina till he died on February 2, 2018. After his death, his wife Runa, the respondent/defendant herein continues to be in occupation of the suit premises. She runs a business from the suit property and holds trade license therefor.

8. The respondent contends that since from the very inception of the tenancy, Satya Ranjan, then Durga Rani, thereafter Prabir and now Runa runs a business of ready-made garments under the name and style of “Jasoda Stores”, from the suit premises, and the Kolkata Municipal Corporation has issued trade license for such business, the suit filed by Molina is covered under Section 2(1)(c)(vii) of the Commercial Courts Act, (in short “CC Act”) 2015 and hence is a commercial suit. Therefore, the suit ought to have been filed in the Commercial Division of the High Court. This contention found favour with the learned Single Judge who directed the plaint to be returned for being presented before the appropriate Court.

9. The appellant / plaintiff however argues that just because the suit property is being used for commercial purpose, the present suit cannot be classified as a commercial suit.

10. Before proceeding further, we may note that Section 2(1)(c)(vii) of the CC Act defines ‘commercial dispute’ as “a dispute arising out of …… (vii) agreements relating to immovable property used exclusively in trade or commerce”.

11. Learned Senior Counsel representing the appellant argued that firstly, there is no agreement relating to the suit premises. An agreement in these contexts must mean a formal written agreement. In any event, even assumi