Delhi High Court
Varun Fashion vs Itc Ltd on 14 November, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: November 14, 2017
+ FAO(OS) (COMM) 186/2017, CM No. 37717/2017
VARUN FASHION
..... Appellant
Through: Dr. Sarbjit Sharma, Adv. with Ms.
Sunaina Pasricha & Ms. Nitika
Khanna, Advs.
versus
ITC LTD
..... Respondent
Through: Mr. Sandeep Sethi, Sr. Adv. with Ms.
Nupur Lamba & Ms. Sonal Chhablani,
Advs.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE V. KAMESWAR RAO
G.S.SISTANI, J. (ORAL)
1. The appellant is aggrieved by the order dated 31st August, 2017 passed by the
learned Single Judge of this Court, by which the written statement has been taken on
record beyond the period of 120 days as prescribed under the Commercial Courts,
Commercial Division and Commercial Appellate Division of High Courts Act, 2015
(hereinafter referred to as the 'Act').
2. Learned counsel for the appellant has relied upon a decision rendered by a
Single Judge of this Court in the case of Oku Tech Private Limited vs. Sangeet
Aggarwal and Ors decided on 11th August, 2016 and Gulf DTH FZ LLC v. Dish T.V
India Limited and Ors., reported in (2016) Vol. 8 AD (Delhi) 266 to submit that the
written statement could not have been taken on record beyond a period of 120 days.
3. Mr. Sethi, learned Senior Counsel, who enters appearance on behalf of the
respondent has opposed this appeal on the ground of maintainability. Reliance is
placed on Section 13 of the Act and two decisions rendered by a Coordinate Bench of
this Court in the case of Harmanprit Singh Sidhu v. Arcadia Shares and Stock
Brokers Pvt. Ltd reported in 2016 SCC OnLine Del 5383 and HPL (India) Limited
and Ors. v. QRG Enterprises and Ors. reported in 238 (2017) DLT 123.
4. Additionally, Mr. Sethi submits that reading of the impugned order would
show that there is no finding that in fact there was delay in filing the written
statement as the stand taken by the respondent (defendant in the suit) was and is that
the written statement was filed within the period allowed.
5. We have heard the learned counsel for the parties. Section 13 of the Act
reads as under:
"13. Appeals from decrees of Commercial Courts and Commercial
Divisions - (1) Any person aggrieved by the decision of the
Commercial Court or Commercial Division of a High Court may
appeal to the Commercial Appellate Division of that High Court
within a period of sixty days from the date of judgment or order, as
the case may be:
Provided that an appeal shall lie from such orders passed by a
Commercial Division or a Commercial Court that are specifically
enumerated under Order XLIII of the Code of Civil Procedure,
1908 as amended by this Act and section 37 of the Arbitration and
Conciliation Act, 1996.
(2) Notwithstanding anything contained in any other law for the
time being in force or Letters Patent of a High Court, no appeal
shall lie from any order or decree of a Commercial Division or
Commercial Court otherwise than in accordance with the
provisions of this Act."
6. Para 36 in the case of HPL (India) Limited and Ors. (supra) reads as under:-
"36. Therefore, as the impugned order does not find place
in the orders specifically enumerated in Order XLIII CPC, no
appeal could lie against it and the present appeal is not
maintainable. But, as the learned counsel for the appellants
have made several submissions to the contrary we shall have to
deal with them."
7. Applying the law laid down in the case of Harmanprit Singh Sidhu (supra)
and HPL (India) Limited and Ors. (supra), we are of the view that the present appeal
is not maintainable.
8. Resultantly, the Appeal is dismissed.
CM No. 37717/2017 (for stay)
The application is dismissed in view of the order passed in the present appeal.
G.S.SISTANI, J
V. KAMESWAR RAO, J
NOVEMBER 14, 2017/ak
