I N Chidambara vs M/S Eminence Home And Spaces
2022 Latest Caselaw 4909 Kant

Citation : 2022 Latest Caselaw 4909 Kant
Judgement Date : 16 March, 2022

Karnataka High Court

I N Chidambara vs M/S Eminence Home And Spaces on 16 March, 2022

Bench: Chief Justice, S R.Krishna Kumar

                             -1-


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF MARCH, 2022

                       PRESENT

THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                             AND

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

         COMMERCIAL APPEAL NO.58 OF 2022

BETWEEN:
I.N. CHIDAMBARA
SON OF LATE I.S. NANJAPPA,
AGED ABOUT 77 YEARS,
RESIDING AT NO.754,
BHOGADI MAIN ROAD,
NEAR NIRMATHI KENDRA,
MYSURU - 570 017.
                                          ... APPELLANT
(BY SRI KRISHNAMOORTHY D., ADVOCATE)


AND:

1.     M/S EMINENCE HOME AND SPACES
       A REGISTERED PATNERSHIP FIRM,
       HAVING ITS REGISTERED OFFICE
       CORPORATE OFFICE AT NO.5910/B, GF,
       GENERAL THIMMAIAH ROAD,
       VIJAY NAGAR, 2ND STAGE, VIJAYANAGAR,
       MYSURU. REPRESENTED BY ITS TWO PARTNERS
       P.C. SUKANAND,
       SON OF LATE P.B. CHITTTIBABU,
       AGED ABOUT 53 YEARS,
       RESIDING AT PAVAN PLAZA,
       2ND FLOOR, NO.83, SHIVAJI CIRCLE,
       SHIVAJI NAGAR,
       BENGALURU - 560 051.
       K.R. VENKATESH,
       SON OF K.V.RAMAKRISHNA,
       AGED ABOUT 54 YEARS,
       RESIDING AT HOUSE NO.29,
       SRI DATTA NILAYA, 36TH A CROSS,
       20TH MAIN, 4TH BLOCK,
       JAYANAGARA, BENGALURU - 560 041.
                                   -2-


2.   M/S EMINENCE LIFE STYLE
     REPRESENTED BY SMITHA SHIVASIDDU,
     DAUGHTER OF SHIVASIDDU,
     AGED ABOUT 28 YEARS,
     CORPORATE OFFICE AT NO.5910/B GF,
     GENERAL THIMMAIAH ROAD,
     VIJAY NAGAR, 2ND STAGE,
     VIJAYANAGAR,
     MYSURU - 560 041.

3.   PRASAD BYRANNA
     THE MANAGER,
     EMINENCE GARDENIA,
     AGED ABOUT 50 YEARS,
     RESIDING AT NO.206,
     EMINENCE PARK APARTMENT,
     SIRAMPURA 2ND STAGE,
     MYSURU - 560 041.
                                                   ... RESPONDENTS
                                  ---
      THIS COMMERCIAL APPEAL IS FILED UNDER SECTION
13(1-A) OF COMMERCIAL COURTS ACT 2015, PRAYING TO CALL
FOR RECORDS AND ON EXAMINATION OF THE SAME BE
PLEASED TO SET ASIDE THE ORDER IMPUGNED PASSED BY THE
LEARNED PRESIDING OFFICER COMMERCIAL COURT AND II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU DATED
27/01/2022 ORDER ON I.A. U/O XXXVIII RULE 5 OF CPC, IN
COM.O.S.NO. 89/2021 AND ALLOW THIS APPEAL IN THE
INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
CHIEF JUSTICE DELIVERED THE FOLLOWING:

                           JUDGMENT

Heard.

2. This appeal under Section 13(1A) of the

Commercial Courts Act, 2015 (for short 'the said Act of

2015') has been filed challenging the order dated

27.01.2022 passed in Com.O.S.No.89/2021 by the

Commercial Court and II Additional District and Sessions

Judge, Mysuru, whereby an application preferred by the

appellant/plaintiff under Order XXXVIII Rule 5 of the Code

of Civil Procedure, 1908 (CPC) has been rejected.

3. It is to be noted that under the said Act of

2015, an appeal under Section 13(1A) is maintainable

against an order of the Commercial Court in case at the

level of District Judge before the Commercial Division of a

High Court within a period of sixty days from the date of

judgment or order 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 CPC as amended by the said Act of 2015

and Section 37 of the Arbitration and Conciliation Act,

1996.

4. In the present background, Section 13 of the

said Act of 2015 is re-produced below:-

              "13.    Appeals from decrees           of
         Commercial       Courts      and Commercial

Divisions.--[(1)Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order.

(1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising

original civil jurisdiction or, as the case may be, 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 the judgment or order:

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 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996 (26 of 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."

5. The order under challenge in the present appeal

is the order passed under Order XXXVIII Rule 5 of the CPC.

The appeal under Order XLIII Rule 1 of the CPC is not

maintainable against any such order passed under Order

XXXVIII Rule 5 of the CPC. The appeal under Order XLIII

Rule 1 of the CPC is maintainable only against an order

passed under Rule 2, Rule 3 or Rule 6 of Order XXXVIII of

the CPC.

6. In view of the above, we are of the considered

view that the present appeal filed under Section 13(1A) of

the said Act of 2015 is not maintainable against the

impugned order and it is accordingly dismissed.