Calcutta High Court (Appellete Side)
Dongfang Electric (India) ... vs Aristocrat International ... on 22 September, 2022
22.09.2022 IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Court : 37
(Commercial Division).
Item
Matter
: CD-01
: FMAT
-----------
Status : ALLOWED
Transcriber : nandy
FMAT 172 of 2022
with
CAN 1 of 2022
Dongfang Electric (India) Private Limited
Vs.
Aristocrat International Private Limited
Mr. Jishnu Saha, Senior Advocate
Ms. Sananda Ganguly, Advocate
Mr. Shubradip Roy, Advocate
Mr. Ishaan Saha, Advocate
......for the Appellant
Mr. Arnab Roy, Advocate
Mr. Satyam Mukherjee, Advocate
Ms. Sayani Ahmed, Advocate
......for the Respondent
The challenge to the impugned order dated April 13,
2022 passed by the Commercial Court in Title Suit No.
28 of 2021 is restricted to a solitary ground that the Court
proceeded to dispose of an application for attachment
before the judgment under Order XXXVIII Rule 5 of the
Code of Civil Procedure when the said date was fixed for
hearing of an application under Section 151 of the Code.
To buttress the aforesaid submission, it is
contended by the appellant that none of the Counsel had
argued on an application for attachment before judgment
and the entire argument was restricted on an application
under Section 151 of the Code, the entire order is liable
to be interfered with and the matter is required to be
remitted to the Commercial Court for rehearing.
However, a preliminary objection is taken by the
respondent that the instant appeal is not maintainable as
the order under Order XXXVIII Rule 5 of the Code has
not been included under Order XLIII Rule 1 of the Code
of Civil Procedure.
There appears to be a fallacy in the aforesaid
submission for the simple reason that an earlier order
passed on 15.03.2022 revealed that on the said date an
application under Section 151 of the Code filed on
26.11.2021, was taken up for hearing and it was
recorded that hearing is concluded and 13.04.2022 was
fixed for passing an order and acceptance of written-
statement. What logically follows from the aforesaid
order is that an application under Section 151 of the
Code was heard and a date was fixed for passing an
order disposing of the said application. If the Court
passed an order upon a misconception of law and
proceeded to dispose of something else, it would still be
regarded as an order to be passed under Section 151 of
the Code. In fact, the said application was heard and the
argument was concluded and the next date was fixed for
passing the order which logically follows that whatever
order is to be passed on the next date is supposed to be
passed on the basis of the said application.
There is an apparent error in the impugned order in
disposing of an application under Section 151 of the
Code and, therefore, the findings which are recorded
therein cannot be said to a proper finding. It leads to
another question whether an order under Section 151 of
the Code is amenable to be challenged by way of an
appeal in a Commercial Appellate Division having not
included within the four corners of Order XLIII Rule 1 of
the Code.
We do not find any ambiguity in this regard as the
law is somewhat settled that the Court shall not be
swayed by the nomenclature of an application. It is the
duty of the Court to consider the merit of the application
and the relief claimed therein and even if a wrong
provision is quoted, the Court is empowered to apply the
correct provision and decide the application on its merit.
The application though captioned as an application
under Section 151 of the Code, but after perusing the
averments and the reliefs claimed therein, it appears to
us that it was, in fact, an application filed invoking the
provision contained under Order XXXIX Rule 10 of the
Code. There is no quarrel that Order XLIII Rule 1(r) of
the Code imbibe within itself the orders passed under
Order XXXIX Rule 10 of the Code and, therefore, any
determination and/or decision taken therein is amenable
to be challenged by way of an appeal. Section 13(1A) of
the Commercial Courts Act, 2015 contains an exhaustive
provision relating to an appeal against the order/decree
passed by the Commercial Court to a Commercial
Appellate Division and the proviso inserted thereto
makes the position clearer engulfing the orders which
are amenable to be challenged by way of an appeal
under Order XLIII as enumerated therein.
The contention of the appellant cannot be
disregarded that, in fact, the reliefs are claimed under the
provisions contained under Order XXXIX Rule 10 of the
Code and, therefore, if the date was fixed for disposal of
the said application, any order passed has to be passed
on the touchstone of the relevant provision under which
the said application was filed.
We thus find that the order impugned cannot be
sustained, more particularly, the manner in which it has
been passed. The same is hereby set aside.
The Commercial Court is directed to fix a date for
hearing of an application under Section 151 of the Code
as well as an application under Order XXXVIII Rule 5 of
the Code on the next date so fixed and efforts shall be
shown to dispose of the said application on the same
date.
In the event, the same cannot be disposed of on the
same date because of the unforeseen and compelling
circumstances, endeavour shall be made to dispose of
the same within two days thereafter.
The appearing Counsel before us assured that they
would not seek unnecessary adjournment before the
Commercial Court and shall cooperate and assist the
Court in adhering the time limit indicated hereinabove.
The appeal being FMAT 172 of 2022 is allowed
and disposed of. The connected application being CAN
1 of 2022 also stands disposed of.
For abundant precaution, it is made clear that this
Court has not gone into the merit of the aforesaid
applications which shall be decided independently in
accordance with law, without being influenced by any
observations made hereinabove.
(Harish Tandon, J.)
(Prasenjit Biswas, J.)
