Calcutta High Court
Maadhawa Realpro Pvt. Ltd vs Sushila Jain And Ors on 15 September, 2025
Author: Arijit Banerjee
Bench: Arijit Banerjee
OCD-2
ORDER SHEET
APOT/209/2025
WITH
CS-COM/412/2024
IN THE HIGH COURT AT CALCUTTA
Commercial Appellate Division
ORIGINAL SIDE
MAADHAWA REALPRO PVT. LTD.
VS
SUSHILA JAIN AND ORS.
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
AND
The Hon'ble JUSTICE OM NARAYAN RAI
Date : September 15, 2025.
Appearance:
Mr. Kuldip Mallick, Adv.
Mr. Arun Kr. Upadhyay, Adv.
Mr. Shantanu Mishra, Adv.
..for the appellant
Mr. Sarosij Dasgupta, Adv.
Mr. Javed K. Sanwarwala, Adv.
Ms. Madhurima Halder, Adv.
Ms. S. A. Sanwarwala, Adv.
...for the respondents
Dictated by Om Narayan Rai, J.
The Court: This appeal is directed against a judgment and order
dated June 25, 2025 whereby the plaintiff's application (being GA No. 3 of
2023) under Order XII Rule 6 of the Code of Civil Procedure, 1908, praying
for judgment on admission has been rejected.
By the same order, the defendant's application being GA-
COM/4/2023, filed under Order VII Rule 11 of the Code of Civil Procedure,
1908, seeking rejection of plaint and dismissal of the suit has also been
rejected.
The plaintiff has come up in appeal feeling aggrieved by the
rejection of its application under Order XII Rule 6 of the Code (being GA No.
3 of 2023).
At the very inception, a question was put by us to the learned
Advocate appearing for the appellant as to how could the appeal be
maintained under the provision of Section 13 of the Commercial Courts Act,
2015 read with Order XLIII Rule 1 of the Code.
Learned Advocate appearing for the plaintiff in answer thereto
seeks to rely on a Division Bench judgment of this Court in the case of
Kolkata Metropolitan Development Authority v. Dagcon (India) Private Limited,
reported at 2024 SCC Online Cal 8835.
He places paragraph-5 thereof to buttress his contention. The same
reads thus:-
"5. One should decide the appealability of an order
from the substance of the order. The section under which the
order is passed is not material. In the Arbitration and
Conciliation Act, 1996 the right to appeal is identified in
relation to the section under which an order is passed. The
appealability of an order is also to be appreciated in the
context of the subject matter. In my opinion, if the appellant
had succeeded in its application before the learned single
judge the effect would have been adjustment of a part of the
award resulting in its reduction by setting off of the counter-
claim against the award. In that event part of the award
would have stood set aside. That in my opinion is very much
appelable under Section 37 of the Arbitration and Conciliation
Act, 1996 read with section 13 of the Commercial Courts Act,
2015. Therefore, the preliminary objection of learned counsel
for the respondent fails."
A reading of the aforesaid paragraph would reveal that the Hon'ble
Division Bench was satisfied that the order impugned was such that it could
be appealed against under Section 37 of the Arbitration and Conciliation
Act, 1996 read with Section 13 of the Commercial Courts Act, 2015 and as
such, the appeal was entertained.
In the facts of the case which is now before us, the order impugned
is one whereby the plaintiff's application seeking judgment on admission
has been rejected. Appeal against such rejection has not been provided for
either under Section 13 of the Commercial Courts Act, 2015 or under Order
XLIII Rule 1 of the Code.
In that view of the matter, we hold that the present appeal is not
maintainable. The same is, accordingly, dismissed along with the connected
application.
This, however, shall not prevent the appellant from pursuing any
other remedy, which the appellant may have recourse to in accordance with
law.
(ARIJIT BANERJEE, J.)
(OM NARAYAN RAI, J.)
sg.
