Krishna Rao, J.

1. The defendant has filed the present application praying for rejection of plaint on the ground that the plaintiffs have filed the suit before the Commercial Division after issuance of notice under Section 106 of the Transfer of Property Act, 1882. As per the judgment passed by the Coordinate Bench of this Court in the case of Deepak Polymers Private Limited Vs. Anchor Investments Private Limited reported in 2021 (1) Calcutta Law Times 129, if the suit for eviction is based on a notice under Section 106 of the Transfer of Property Act, 1882, the same arises out of the statutory right and having no direct nexus with the lease agreements in respect of immovable property is concern.

2. Mr. Rupak Ghosh, Learned Advocate representing the defendant submits that in paragraph 10 of the plaint, it is the specific case of the plaintiffs that the plaintiffs have issued Advocate notice dated 24th March, 2022, under Section 106 of the Transfer of Property Act,1882, calling upon to vacate and to hand over peaceful possession of the suit property. He submits that from the said averments, it is clear that the suit is based upon the notice under Section 106 of the Transfer of Property Act, 1882.

3. Mr. Ghosh submits that though subsequently in the year 2024, this Court dissenting with the order passed by the Coordinate Bench in the case of Deepak Polymers Private Limited (supra) referred to the Hon’ble the Chief Justice of this Court and the same was referred to the Hon’ble Division Bench of this Court and the Hon’ble Division Bench has held that lease agreement is to be looked into and to consider for deciding the nature and character of jural relationship of the landlord and tenant between the parties. He submits that the judgment passed by the Hon’ble Division Bench is not having any prospective effect. He submits that when the plaintiffs have filed the suit, at the relevant point of time the judgment in the case of Deepak Polymers Private Limited (Supra) was in force, thus the plaintiffs ought to have filed the suit before the Non-Commercial Division. The judgment passed in the case of T.E. Thomson and Co. Ltd. vs. Swarnalata Chopra Nee Kapur & Another by the Hon’ble Division Bench dated 18th June, 2025, is not applicable in the present suit as the said judgment is not having prospective effect.

4. In support of his submission, he has relied upon the judgment in the case of P.V. George and Ors. Vs. State of Kerala and Ors. reported in (2007) 3 SCC 557 and submits that the Law declared by a Court will have a retrospective effect if not otherwise stated to be so specifically.

5. Mr. Ghosh further relied upon the judgment in the case of Kanishk Sinha and Another Vs. The State of West Bengal and Another passed in Special Leave Petition (Criminal) Nos. 8609-8614 OF 2024 dated 27th February, 2025, wherein the Hon’ble Supreme Court held that the judgment of the Court will always be retrospective in nature unless the judgment itself specifically states that the judgment will operate prospectively.

6. Mr. Soumabho Ghose, Learned Advocate representing the plaintiffs submits that it is the specific case of the plaintiffs that on 18th June, 1956 by way of registered deed of lease, the defendant was inducted as a lessee by the predecessors-in-interest of the plaintiffs and the same was extended from time to time. The lease deed was lastly renewed on 30th May, 2003, for a period of 20 years with effect from 1st January, 2002 till 31st December, 2021.

7. Mr. Ghose submits that due to efflux of time, the deed of lease stood determined on 31st December 2021. The defendant did not exercise their option for renewal of the lease period of the suit premises and accordingly, the plaintiffs requested the defendant to vacate the premises and to hand over the vacant possession of the same but the defendant failed to vacate the same.

8. Mr. Ghose submits that as the defendant failed to vacate and to handover the possession of the suit premises to the plaintiffs, the plaintiffs issued notice under Section 106 of the Transfer of Property Act, 1882, calling upon the defendant to vacate and to hand over the possession of the suit premises to the plaintiffs.

9. Mr. Ghose submits that the it is the specific case of the plaintiffs that the suit relates to a commercial transaction and is covered under Section 2(1)(c)(vii) of the Commercial Courts Act, 2015 and the suit filed by the plaintiffs, is Commercial in nature.

10. Mr. Ghose submits that in the case of Deepak Polymers Private Limited (supra), the Coordinate Bench of this Court has not considered the explanation clause of Section 2(1)(c) of the Commercial Court Act, 2015, wherein it is clarified that a commercial dispute shall not be cease to be a commercial dispute merely because “it also involves action for recovery of immovable property or for realization of monies out of immovable property given as security or involves any other relief pertaining to immovable property”.

11. Mr. Ghose submits that this Court while considering the case of Deepak Polymers Private Limited (supra) finds that in the said case the explanation clause of Section 2(1)(c) of the Act was not considered, the matter referred to the Hon’ble Chief Justice for constitution of Special Bench and accordingly, the Hon’ble Division Bench has held that even if the case is initiated on the basis of notice under Section 106 of the Transfer of Property Act, 1882, the parties can rely upon agreement/lease deed.

12. Mr. Ghose submits that the plaintiffs have filed the suit taking into consideration of the explanation clause of Section 2(1)(c) of the Commercial Courts Act, 2015 and in the meantime the matter referred by this Hon’ble Court to the Special Bench held that the explanation clause is an integral part and parcel of Section 2(1)(c) of the Act and has to be taken into consideration along with the Section 106 of the Transfer of Property Act, 1882 for deciding the issue whether it is commercial suit or not. He submits that in the present case, it cannot be a question that the judgment passed by the Hon’ble Division Bench cannot be operative prospectively or not.

13. Heard the Learned Counsel for the parties, perused the materials on record and the judgments relied by the parties. The defendant has filed the present application relying upon the judgment of the Coordinate Bench of this Court in the case of Deepak Polymers Private Limited (supra) wherein the Court held that:

                    “25. In view of Section 6 of the 2015 Act, a Commercial Court has jurisdiction to try all suits and applications relating to “commercial dispute” of a “specified value” arising out of the entire territory over which it has been vested with territorial jurisdiction. Since the relief sought in the present suits relate to an immovable property and/or rights therein, which are actually used for commercial purpose, the plaintiff has correctly determined the “specified value” in terms of Section 12(1)(c) of the 2015 Act, the opposite parties argue. The Act of 2015 has an overruling effect notwithstanding anything inconsistent therewith in any other law in terms of Section 21 thereof, contends learned counsel for the opposite parties. As such, no question of valuation on the basis of lease annual rent, as contemplated in the West Bengal Court Fees Act, 1970 and the Suit Valuation Act, 1887, arises in the present case.

                    26. Reading the words of the legislature literally is the primary rule for construction of statutes. As such, learned counsel for the opposite parties defends the impugned orders on the premise that the Commercial Court has jurisdiction to entertain and decide the suits-in-question.

                    27. Upon hearing the rival contention of the parties and perusing their respective written notes of arguments, as well as on a plain and meaningful reading of the plaints of the aforesaid suits in their entirety, it is crystal-clear that the suits have been filed primarily for recovery of possession of immovable properties under Section 106 of the Transfer of Property Act, 1882. In all the plaints, it has been pleaded that notices were given under Section 106, which the defendants failed to comply with even after the expiry of fifteen (15) days thereafter. Hence, the first ingredient of the suits which stares in the face is that the suits are based on the statutory right conferred by Section 106 of the 1882 Act. The cause of action in each of the suits clearly arises by virtue of the rights conferred by Section 106. In the event the suits were for termination of lease on the ground of forfeiture for violation of any of the clauses of the lease agreements and/or for specific performance of the agreements or suits of like nature, the suits would definitely come within the purview of “commercial dispute” as defined in Section 2(1)(c) of the Commercial Courts Act, 2015.

                    28. A plain reading of the said provision indicates that Section 2(1)(c) defines “commercial dispute” to be a dispute “arising out of” the subsequent sub-clauses, including several aspects. Sub-clause (vii) is the only basis of argument of the plaintiffs/opposite parties. The said sub-clause stipulates that a dispute arising out of “agreements relating to immovable property used exclusively in trade or commerce” come within the ambit of “commercial dispute”. The judgments cited by the plaintiffs are distinguishable on their respective facts with the present case. Most of the cases, as mentioned above, pertain directly to agreements from various perspectives. Suits for specific performance of agreements, suits relating renewal clauses in agreements and other similar contexts gave rise to the proceedings which culminated in the said reports. Thus, the proceedings were “arising out of” the respective agreements.

                    29. What has been highlighted in the judgments placed by the opposite parties is that all suits arising out of agreements relating to immovable property used exclusively in trade or commerce, including eviction suits, would come within the ambit of the expression “commercial dispute” and shall be decided by the Commercial Courts in the event of the pecuniary jurisdiction, on the basis of valuation of the suits, being above the stipulated amount.

                    30. However, the cardinal question which has not been addressed but is pivotal to the present adjudication is the expression “dispute” which precedes the expression “arising out of” as appearing in Section 2(1)(c) of the 2015 Act. Reading sub-clause (vii) in conjunction with the starting words of Clause (c), it is seen that the expression “agreements relating to immovable property….” qualifies the term “dispute” arising out of such agreements.

                    31. A “dispute” can only be determined by the cause of action of the suit and not the preceding backdrop. Even if Section 106 of the Transfer of Property Act deals with termination of the jural relationship of lessor and lessee, pre-supposing a prior lease agreement, the bundle of facts comprising the cause of action of the suit is the sole determinant of the “dispute” involved in the suit.

                    32. In the event the suits, in the present case, had been filed for recovery of possession in respect of immovable property on the ground of forfeiture for contravention of any of the terms and conditions of the respective agreements-in-question, it might have been argued that the suits pertains to disputes “arising out of” such agreements.

                    33. However, the dispute itself, in the present case, arises out of refusal by the defendants to comply with the notices issued by the lessor under Section 106 of the Transfer of Property Act, 1882, which is based on a statutory right independent and irrespective of any clause of the lease agreements.

                    34. Hence, the suits squarely arise out of a statutory right conferred by Section 106 of the Transfer of Property Act, having no direct nexus with the lease agreements in respect of the immovable properties concerned. Thus, the precondition of the applicability of Section 2(1)(c)(vii), that is, the emanation of the dispute out of the lease agreement, is not satisfied in the present suits. Thus, the secondary question as to whether the immovable properties are used exclusively in trade or commerce, pales into insignificance.”

14. The main issue raised by the defendant that the plaintiffs have filed the suit when the order passed by the Court in the case of Deepak Polymers Private Limited (supra) and at that time there was no order of the Hon’ble Division Bench wherein the Hon’ble Division Bench has taken into consideration of the explanation clause of the Commercial Courts Act, 2015, thus the order of the Hon’ble Division Bench is not applicable in the present case as the judgment of the Hon’ble Division Bench is not having a prospective effect.

15. The plaintiffs have filed the suit in the Commercial Division taking into consideration that the dispute between the plaintiffs and the defendant is commercial in nature as the plaintiffs are relying upon the lease of deed and due to efflux of time, the tenancy is determined and the plaintiffs issued notice under Section 106 of the Transfer of Property Act, 1882 for vacating the premises and handing over the possession.

16. In the case of T.E. Thomson & Company Limited Vs. Swarnalata Chopra Nee Kapur and Another reported in 2024 SCC OnLine Cal 8985, the defendant in the said case had raised the issue that the Coordinate Bench of this Court in the case of Deepak Polymers Private Limited (supra) has held that refusal by the defendants to comply with the notices issued by the lessor under Section 106 of the Transfer of Property Act, 1882, which is based on a statutory right independent and irrespective of any clause of the lease agreements, hence, the suit squarely arises out of a statutory right conferred by Section 106 of the Transfer of Property Act, 1882, having no direct nexus with the lease agreements in respect of the immovable properties concern.

17. In the case of T.E. Thomson & Company Limited (supra) at the time of hearing of the application filed by the defendant under Order VII Rule 11 of the Civil Procedure Code, 1908, Learned Counsel for the plaintiffs have raised the issue that the Hon’ble Court while passing the order in the case of Deepak polymers Private Limited (supra) did not consider or deal with the explanation clause provided in Section 2(1)(c) of the Commercial Courts Act, 2015. Considering the said issue raised by the plaintiffs in the case of T.E. Thomson & Company Limited (supra), this Court with great respect of the Hon’ble Judge dissented with the order passed in the case of Deepak Polymers Private Limited (supra) and referred the matter to the Hon’ble the Chief Justice of this Court to constitute a Special Bench to decide the following issue :

                    “a. Whether after issuance of notice under Section 106 of the Transfer of Property Act, 1882, the defendant or the parties cannot rely the agreement/or Lease Deed as the case may be?

                    b. Whether only on the basis of the case initiated under Section 106 of the Transfer of Property Act, 1882, it can be said that Court cannot look into the agreement between the parties and thus the suit cannot be treated as commercial suit in terms of Section 2(1)(c)(vii) of the Commercial Courts Act, 2015?

                    c. Whether if the Explanation Clause of Section 2(1((c) of the Commercial Courts Act, 2015 taken into consideration along with Section 106 of the Transfer of Property Act, 1882, the suit can be treated as commercial suit in terms of the lease agreement/rent agreement entered between the parties?”

18. The Hon’ble Chief justice of this Court has referred the matter, namely, T.E. Thomson & Company Limited vs. Swarnalata Chopra Nee Kapur & Anr., being the case number IA No. GA-COM/2/2024 in CS (COM) NO. 4 of 2023, to the Hon’ble Division Bench for taking decision in the abovementioned issues and the Hon’ble Division Bench has held as follows:

                    “122. In view of the aforesaid discussion we accept the submission of Mr. Anindya Kumar Mitra, the leanred Amicus Curie and anwer the questions in the manner following:

                    Q.(a) Whether after issuance of notice under section 106 of the Transfer of Property Act, 1882, the defendant or the parties cannot rely on the agreement/lease deed as the case may be?

                    Answer- The lease agreement is to be looked into and considered for deciding the nature and character of jural relationship of landlord and tenant between the parties, that is to say, whether the lease agreement is for manufacturing or agricultural purpose, upon which will depend validity of notice under Section 106 of T P Act. The answer is in the negative.

                    Q.(b) Whether only on the basis of the case initiated under Section 106 of the Transfer of Property Act, 1882, it can be said that Court cannot look into the agreement between the parties and thus, the suit cannot be treated as commercial suit in terms of Section 2(1)(c)(vii) of the Commercial Courts Act, 2015?

                    Answer - This question is included by necessary implication in question (a) and is answered in the negative.

                    Q.(c) Whether if the Explanation Clause of Section 2(1)(c) of the Commercial Courts Act, 2015 taken into consideration along with the Section 106 of the, 1882, the suit can be treated as commercial suit in terms of the lease agreement/rent agreement entered between the parties?

                    Answer- Yes. Explanation clause is an integral part and parcel of the Section 2(1)(c)(vii) of the said Act and has to be taken into consideration for deciding whether it is a commercial dispute or not. Explanation is very relevant because it reflects legislative intent that a commercial dispute will not cease to be commercial dispute, even if recovery of immoveable property is claimed, which will not change the character of a dispute if it has been held to be commercial dispute under Section 2(1)(c) (vii) of the said Act.”

19. The defendant has raised the issue in the present case that the judgment passed by the Hon’ble Division Bench in the case of T.E. Thomson (Supra) dated 18th June, 2025, is not applicable in the present case as the said judgment cannot be given prospective effect. This Court in the case of T.E. Thomson (supra), has dissented with the order passed in the Deepak Polymers Private Limited (supra) and referred the matter to the Hon’ble the Chief Justice for constitution of Special Bench and accordingly, the matter was decided by the Hon’ble Division Bench of this Court by affirming the issue referred by this Court. Thus the issue raised by the defendant that the judgment passed in the case of the T.E. Thomson (Supra) dated 18th June, 2025 by the Hon’ble Division Bench is not applicable in the present case having no leg to stand.

20. Once this Court dissented with the order passed in the case of Deepak Polymers Private Limited (supra), the only option with this Court to accept the issue decided by the Hon’ble Division Bench in the case of T.E. Thomson (Supra).

21. The judgments referred by the plaintiffs, are settled law that the judgment of the Court always be retrospective effect in nature unless the judgment itself specifically states that the judgment will operate prospectively. But in the present case, the question of giving retrospective effect to the judgment passed by the Hon’ble Division Bench in the case of T.E. Thomson (supra) dated 18th June, 2025, does not and cannot arise as the said judgment is passed by the Hon’ble Division Bench on the issue referred by this Court in the case of T.E. Thomson (supra).

22. Considering the above, this Court did not find any merit in the application filed by the defendant, G.A. (Com) No. 5 of 2025 is dismissed.