JUDGMENT :

DEBANGSU BASAK, J.

1. Appeal is at the behest of a plaintiff and directed against Order No. 2 dated December 3, 2025 passed in Title Suit No. 133 of 2025. Appellant is aggrieved by the refusal of ad-interim temporary injunction by the learned Trial Judge.

2. Appellant entered into a development agreement dated September 28, 2018 with the respondent.

3. The appellant contends that the respondent did not act in terms of the development agreement. Appellant, therefore, filed a suit being Title Suit No. 133 of 2025 in the Court of the learned Civil Judge, Senior Division at Siliguri seeking cancellation of the development agreement dated September 28, 2018.

4. Coordinate Bench in the appeal passed orders dated December 16, 2025 and December 22, 2025. Coordinate Bench granted interim order of injunction in the appeal.

5. In order to grant an order of injunction, in a pending suit, a Court is required to return a finding on the existence of three essential conditions, namely, prima facie case, balance of convenience and the question of irreparable loss, if the injunction as prayed for is not granted. While considering the existence of a prima facie case, a Court is required to also arrive at a finding that, it possesses requisite jurisdiction to try, entertain and determine the suit. Existence of requisite jurisdiction is an integral part of the plaintiffs making out a prima facie case to go to trial.

6. As the appeal is directed against an order refusing to grant ad-interim injunction, we insisted the appellant to satisfy the issue as to whether Title Suit No. 133 of 2025 was maintainable in view of the provisions of the Commercial Court's Act, 2015 or not, at least at the prima facie level.

7. Learned advocate appearing for the appellant submits that the appellant was seeking cancellation of development agreement. She refers to the various clauses of the development agreement. She submits that, 50% of the constructed area was to be allocated to the appellant. Such 50% of the constructed area was residential units. Therefore, the suit did not involve a commercial dispute within the meaning of the Act of 2015.

8. Learned advocate appearing for the appellant draws the attention of the Court to Section 2(1)(c)(vii) of the Act of 2015. She submits that the immovable property concerned is not being used exclusively for commercial purpose as the development agreement was never worked out. She points out that the suit was for cancellation of the development agreement itself. Therefore, the question of exclusive user of the building for commercial purposes was not there.

9. Relying upon (2020) 15 Supreme Court Cases 585 (Ambalal Sarabhai Enterprises Limited vs. K.S. Infraspace LLP and Another), learned Advocate appearing for the appellant submits that, since the immovable property was not being used exclusively for commercial purposes, the suit was maintainable in the Court in which it was filed.

10. As noted above, the suit is for cancellation of development agreement. Relevant portions of the development agreement, to which, our attention is drawn by the appellant, are as follows:

“1.4 Building shall mean the building (comprising P+5 or P+6 floors) commercial cum residential type, to be constructed at the said premises with the maximum Floor Area Ratio (FAR) available or permissible under the Rules and Regulations of the Siliguri Municipal Corporation for the time being prevailing as per the plan or plans to be sanctioned by the Siliguri Municipal Corporation.

1.5 Unit shall mean the constructed area and/or spaces in the building intended to be built and/or constructed capable of being occupied and enjoyed separately as a distinct entity in the building to be constructed at the said premises.

1.9 Saleable Area shall mean the space or spaces in the new building available for independent use and occupation after making due provisions of common facilities and the space required therefor.

1.11 Owner’s Allocation shall be 50% of the total constru