ocd-28 ORDER SHEET IN THE HIGH COURT AT CALCUTTA COMMERCIAL DIVISION ORIGINAL SIDE AP-COM/818/2025 SRI KARTICK CHAKRABORTY AND ANR. VS SIKHA KUMAR AND ORS. BEFORE: The Hon'ble JUSTICE SHAMPA SARKAR Date: 18th November, 2025. Appearance: Mr. Shyamal Mukhoipadhyay, Adv. Ms. Priyanka Chatterjee, Adv. Ms. Ipshita Sarkar, Adv. …for petitioners. Mr. Shamba Chakraborty, Adv. Mr. Jit Roy, Adv. …for respondents. The Court: The respondent has raised a query as to maintainability of the application in the commercial division of this court. According to the court, this application should have been filed in the non commercial division. The dispute arose out of an agreement for development dated 4th December, 2014 when the predecessor of the respondents [since deceased] cancelled the development agreement on failure of the petitioners to carry out the obligations under the development agreement. It appears that the owner was seized and possessed of land measuring 1 cottah 10 chitak being premises no.160 G.T. Road under Balley Municipality, Ward No.6, District Howrah. The owner expressed his desire to develop the property and the agreement was entered into for construction of G+3 storied building after demolishing the existing structure and re-settlement of the tenants. The developers/petitioners agreed to construct the said building on the land which has been described in schedule of the agreement. 2 It appears that originally there was a single storied old dilapidated structure which was occupied fully by tenants. The expression building, includes the structures, super structures, meter room, pump room, darwan room, night guard room, etc. The common facilities include stair-ways, lift, corridors, tabbies, shafts, servants toilet, common lavatory, rainwater, pipes, sewerages and drainage pipe line, underground sewer fittings and fixtures, man hole, pits, galleries, roof, terrace, filter water connection and pipes lines, overhead and underground reservoirs, pipe lines, motor pumps, fence and boundary wall, courtyard, CESC supply, electric connection and electrical supply to common areas and fittings, fixtures, entire exterior walls, boundary walls, garbage, vat, common driveways and other facilities whatsoever required for the establishment of location, enjoyment, provisions, maintenance and management of affairs of the said building. Clause 10 and 11 provides the owners’ allocation, being a flat of 400 sq.ft. on the first floor and another room measuring 100 sq.ft. in the ground floor. Clause 5 of Article XVII provides the dispute resolution clause, which states that disputes and differences arising between the parties shall be referred to an Arbitrator. The owner cancelled the development agreement by a letter dated 29th March, 2023. On 15th September, 2023, the developers/petitioners through the learned advocate invoked the arbitration clause and suggested the name of a learned advocate to adjudicate the disputes between the parties. Mr. Mukhopadhyay, learned advocate for the petitioner submits that the dispute is a commercial one, inasmuch as, the subject matter of development agreement falls within the definition of section 2(1)(c)(vi) of the Commercial Courts Act, 2015. Section 2(1)(c)(vi) of the Act of 2015 provides 3 that disputes with regard to construction, infrastructure development and such constructions arising out of tenders fall within the scope of commercial activity. This court should entertain the application in the commercial division. Reliance has been placed on the decision of the Andhra Pradesh High Court in the matter of Blue Nile Developers Private Limited vs. Movva Chandra Sekhar And Others in Civil Revision Petition No.569 of 2021 and on a Division Bench judgment of this Court in the matter of T.E. Thomson & Company Limited vs. Swarnalata Chopra Nee Kapur & Anr. in CS (COM) No. 4 of 2023. It is an admitted position that the premises was not used as a commercial property. Hence, the agreement was entered into between the parties at a time when the premises comprised of a single storied dilapidated structure occupied by tenants. The petitioners were engaged to build. There is nothing on record which would show that the premises was ever converted to a commercial one or that the municipality had been approached either by the developer or by the owners for construction of a commercial building. In fact, no activity had taken place from the date of the development agreement in 2014, till the death of the original owner. The whole dilapidated single storied structure is still being used for residential purpose. Admittedly, clause (vii) of the definition clause does not apply in this case. However, the question is whether clause (vi) of section 2(1)(c) will cover the project, is also answered in the negative. The construction was to be made of a three storied residential building on 1 cottah 10 chittak land. The first and foremost question is whether such construction is at all permissible under the municipal laws. Secondly, the decision of the Andhra Pradesh High Court in Blue Nile (supra) does not apply in this case. In the said matter, the construction activity was in the nature of a project known as ‘Pebble Beach’ covering an area of AC.8- 4 07 cents of land at Rishikonda, Visakhapatnam in the State of Andhra Pradesh in a phased manner, comprising of Triplex villas and residential apartments. It was a huge project. The comparison of such an endeavour, with the structure proposed to be built by the petitioner does not arise. The construction is not to come up for any commercial activity. There is neither any infrastructural development nor a project involving multiple levels of constructions. The decision in T. E. Thompson Company Limited (supra) does not apply to the facts of this case. The application, thus, cannot be entertained in the commercial division. The application be returned to the petitioner to be filed in the non-commercial division. This application is disposed of accordingly. . (SHAMPA SARKAR, J.) S. Mandi/pkd.