M/S. Abs Digital Cables Private Limited vs M/S. Shakun Gases Private Limited
2024 Latest Caselaw 49 Bom

Bombay High Court

M/S. Abs Digital Cables Private Limited vs M/S. Shakun Gases Private Limited on 2 January, 2024

Author: B. P. Colabawalla

Bench: B. P. Colabawalla

2024:BHC-AS:126

                                                                           23.COMAOST.18619.2023.doc



                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CIVIL APPELLATE JURISDICTION


                                  COMMERCIAL APPEAL (STAMP) NO.18619 OF 2023
                                                ALONG WITH
                                     INTERIM APPLICATION NO.15602 OF 2023
                                                     IN
                                  COMMERCIAL APPEAL (STAMP) NO.18619 OF 2023
                                                ALONG WITH
                                 INTERIM APPLICATION (STAMP) NO.18622 OF 2023
                                                     IN
                                  COMMERCIAL APPEAL (STAMP) NO.18619 OF 2023

                  M/s. ABC Digital Cables Private Limited               ....Appellant/Applicant

                             Versus

                  M/s. Shakun Gases Pvt. Ltd.                           ....Respondent


                       Mr. Ashok Saraogi, Advocate for Appellant/Applicant.


                       Mr. Girish Kedia a/w. Mr. Krushang Kedia, Advocates for
                       Respondent.

                                              CORAM      : B. P. COLABAWALLA &
                                                          SOMASEKHAR SUNDARESAN, JJ.

                                              DATE       : JANUARY 02, 2024

                  P. C.

1. Mentioned. With the consent of parties, taken out of turn.

2. The above Commercial Appeal inter-alia challenges the order

passed by the Bombay City Civil Court, Borivali Division at Dindoshi,

JANUARY 2, 2024 Aarti Palkar

23.COMAOST.18619.2023.doc

Goregaon, Mumbai dated 10th April, 2023. By the impugned order,

the application filed by the Appellant for rejection of the plaint under

Order VII Rule 11(d) was dismissed by the Lower Court. It is to

impugn this order that the present Appeal is filed.

3. The learned counsel appearing on behalf of the Respondent

took a preliminary objection, namely, that the above Appeal is not

maintainable under the provisions of the Commercial Courts Act,

2015. In this regard, he brought to our attention a decision of a

Division Bench of this Court in the case of Bank of India & Anr. Vs.

M/s. Maruti Civil Works [Appeal From Order No.362 of 2021 in

Commercial Suit No.6 of 2019, decided on 15 th December, 2023]. He

submitted that in the aforesaid decision, a Division Bench of this

Court has clearly held that an appeal under Section 13(1A) of the

Commercial Courts Act, 2015 would lie only against the judgment

and/or orders which are enumerated or enlisted under Order XLIII

of the Code of Civil Procedure, 1908. An order rejecting an

Application moved under Order VII Rule 10 or Order VII Rule 11(d)

of the CPC is not enumarated or enlisted in Order XLIII of the CPC.

Hence, such an order is not appealable.

4. Faced with this decision, Mr. Saraogi, the learned counsel

appearing on behalf of the Appellant, sought leave to withdraw the

JANUARY 2, 2024 Aarti Palkar

23.COMAOST.18619.2023.doc

above Appeal. In these circumstances, the above Appeal is dismissed

as withdrawn. However, there shall be no order as to costs.

5. We make it clear that the withdrawal of this Appeal will not

disentitle the Appellant to challenge the impugned order in

appropriate proceedings if he is so entitled to in law.

6. In view of the disposal of the above Commercial Appeal,

nothing survives in the above Interim Applications and the same are

disposed of accordingly.

7. This order will be digitally signed by the Private

Secretary/Personal Assistant of this Court. All concerned will act on

production by fax or email of a digitally signed copy of this order.

[SOMASEKHAR SUNDARESAN, J.] [B.P. COLABAWALLA, J.]

JANUARY 2, 2024 Aarti Palkar