Nupur Saha & Ors. vs Swapan Sonkar & Ors.

The instant suit has been filed, inter alia, praying for a decree for specific performance of an agreement that provided that a partition deed would be executed between the plaintiffs and the defendant nos.1 to 4 and for execution and registration of the draft deed of partition which was exchanged between the parties.

According to the plaint case, the said draft deed was handed over to the plaintiffs on 18^th December 2024 by the defendant no.1. The plaint case further proceeds on the premise that the plaintiffs through their advocate had returned the draft deed of partition to the defendant no.1 by incorporating the suggested terms with a request to finalise the same for execution in accordance with law. Subsequently, by a letter dated 9^th April 2025 the learned advocate for the plaintiffs wrote to the learned advocate for the defendant nos.1 to 4 requesting the learned advocate for the defendant nos. 1 to 4 to finalise the proposed deed of partition as early as possible. The plaintiffs claim that at all material point of time the plaintiffs were given to understand that the property being premises no.148, Bipin Behari Ganguly Street, Kolkata – 700012 forming the subject matter of partition would be developed and construction of a new building or renovation of an area of 540 sq.ft. would be made for the purpose of utilising and exploiting the same for commercial purpose and the plaintiffs while acting on the basis of the aforesaid and as requested, had stopped operating their café then run under the name and style of Modern Café from a portion of the aforesaid building.

The plaintiffs claim that some times in May, 2026 when the plaintiffs visited the premises in question, the plaintiffs found that the same was being utilised as a godown and warehouse for stocking raw vegetables and fruits. According to the plaintiffs, the above illegal activities were carried out behind the back of the plaintiffs. Having notice with regard to the above, the plaintiffs had confronted the defendants as regards illegal and unlawful utilisation of the subject premises.

According to the plaint case, the defendant nos.5 and 6 are in illegal possession and have retained the keys of the said portion and are utilising the said property without the plaintiff’s consent. The defendant nos.1 to 4 have been carrying out construction/renovation in the other portion of the property keeping aside the portion of the plaintiffs.

Being apprehensive that the defendants would deal with the plaintiffs’ portion comprising of 540 square feet, at premises No.148 Bipin Behari Ganguly Street, Kolkata - 700012, the instant suit has been filed and the plaintiffs seek urgent relief.

Mr. Dasgupta, learned Advocate appearing on behalf of the plaintiffs would submit that since the plaint contemplates an urgent relief, this Court may be pleased to dispense with the requirement of pre-litigation mediation as provided in Section 12A of the Commercial Courts Act, 2015. In support of his contention that in case, a suit contemplates an urgent relief, the Court should permit the plaintiff to proceed without insisting for the compliance of the requirement of pre-litigation mediation as provided for in Section 12A of the Commercial Courts Act, he places reliance on a judgment delivered in the case of Srigopal Yarn Trading Private Limited and Another vs. Mahalaxmi Enterprise and Others, reported in 2026 SCC OnLine Cal 1702.

On the aspect of use of the phrase ‘an urgent relief’ and the expression ‘contemplate’ in section 12A of the Commercial Courts Act, he submits that the same would not mean an immediate immediacy, but the prejudice and irreparable loss and injury that the plaintiffs are likely to suffer if, the plaintiffs are made to wait for pre-litigation mediation. In support of the aforesaid, reliance has been placed on an unreported judgment delivered in the case of Asa International India Microfinance Ltd. Vs. Northern ARC Capital Ltd. & Anr. in FMAT 3 of 2025 on 17^th January 2025.

Having heard Mr. Dasgupta, learned advocate for the plaintiffs and having regard to the above and noting from the judgment delivered in the case of Yamini Manohar vs. T.K.D. Keerthi reported in (2024) 5 SCC 815 that the Commercial Courts have a role, albeit, limited at the first instance to decide whether the plaintiffs can be permitted to bypass the pre-institution mediation as provided under Section 12A of the Commercial Courts Act, 2015, I have considered the averments contained in the plaint, the documents annexed, and I find for this limited purpose that the suit contemplates an urgent relief, as such, the formalities for availing the pre-institution mediation and settlement stands dispensed with and appropriate leave is granted to the plaintiffs to institute the suit without compliance of such formalities.

The plaint stands admitted subject to scrutiny by the department.