Mr Suresh vs M/S Khodays Trends
2023 Latest Caselaw 4343 Kant

Citation : 2023 Latest Caselaw 4343 Kant
Judgement Date : 12 July, 2023

Karnataka High Court

Mr Suresh vs M/S Khodays Trends on 12 July, 2023

Bench: Alok Aradhe, Anant Ramanath Hegde

                                        -1-
                                              NC: 2023:KHC:24075-DB
                                                 COMAP No. 101 of 2023




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 12TH DAY OF JULY, 2023

                                     PRESENT
                       THE HON'BLE MR JUSTICE ALOK ARADHE
                                        AND
                   THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                        COMMERCIAL APPEAL NO. 101 OF 2023
              BETWEEN:

              MR SURESH,
              S/O MR SATHYANRAYAN,
              MAJOR IN AGE, NO.23, 2ND MAIN ROAD,
              5TH BLOCK, KUMARA PARK WEST,
              BENGALURU - 560 020.
                                                           ...APPELLANT
              (BY SRI VIKRAM HUILGOL, SR.COUNSEL FOR
              SRI. MOHANA C, ADVOCATE)

              AND:

              1.    M/S KHODAYS TRENDS,
Digitally
signed by           NO.28, SHREE GAURI KUNJ,
PRAMILA G V         GROUND FLOOR, PALACE CROSS ROAD,
Location:           BENGALURU-560020, KARNATAKA
HIGH COURT          REP. BY ITS PROPRIETRIX,
OF                  MRS. ERICA MADHUSUDAN KHODAY.
KARNATAKA
              2.    MRS ERICA MADHUSUDAN KHODAY,
                    W/O MR MADHUSUDAN KHODAY,
                    AGED ABOUT 51 YEARS, NO.28,
                    SHREE GAURI KUNJ,
                    GROUND FLOOR, PALACE CROSS ROAD,
                    BENGALURU-560020, KARNATAKA.
              3.    M/S S P EXIMS,
                    NO.23, 2ND MAIN ROAD,
                    5TH BLOCK, KUMARA PARK WEST,
                             -2-
                                  NC: 2023:KHC:24075-DB
                                     COMAP No. 101 of 2023




     BENGALURU - 560 020,
     REP. BY ITS PROPRIETRIX,
     MRS POORNIMA SURESH.
4.   MRS POORNIMA SURESH,
     W/O MR SURESH,MAJOR IN AGE,
     NO.23, 2ND MAIN ROAD,
     5TH BLOCK, KUMARA PARK WEST,
     BENGALURU - 560 020.

                                           ...RESPONDENTS
(BY SRI AMEETH DESHPANDE, ADVOCATE)


      THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13
(1-A) OF THE COMMERCIAL COURTS ACT, 2015 PRAYING TO:
     I. CALL FOR RECORDS ON THE FILE OF LXXXV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
BENGALURU (COMMERCIAL COURT/CCH-86) IN COM.O.S.
200/2021.
     II. SET ASIDE THE IMPUGNED ORDER DATED 04/03/2023
AS PER ANNEXURE-A PASSED BY THE COURT OF LXXXV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
BENGALURU (COMMERCIAL COURT/CCH-86) IN COM.O.S. NO.
200/2021 REJECTING I.A. FILED BY THE APPELLANT
HEREIN/DEFENDANT NO. 3 UNDER ORDER 1 RULE 10 (2) READ
WITH SECTION 151 OF CPC FOR DELETION OF THE NAME OF
DEFENDANT NO. 3 FROM ARRAY OF PARTIES AND
CONSEQUENTLY, BE PLEASED TO ALLOW THE SAID I.A. FILED
BY THE APPELLANT HEREIN/ DEFENDANT NO. 3 UNDER ORDER
1 RULE 10 (2) READ WITH SECTION 151 OF CPC FOR
DELETION OF THE NAME OF DEFENDANT NO. 3 FROM ARRAY
OF PARTIES BEFORE THE HON'BLE COURT BELOW IN COM.O.S.
NO.200/2021 AS PER ANNEXURE-J BY ALLOWING THE
INSTANT APPEAL AND ETC.,

    THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
                                  -3-
                                       NC: 2023:KHC:24075-DB
                                              COMAP No. 101 of 2023




                              JUDGMENT

Mr Vikram Huilgol, learned Senior counsel for the

appellant.

2. Heard on the question of Admission.

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

Commercial Courts Act, 2015 has been filed against the

order dated 04.03.2023 passed by the Commercial Court by

which an application preferred by the appellant under Order I

Rule 10 of the Code of Civil Procedure has been rejected.

4. We have heard the learned Senior Counsel for the

appellant on maintainability of the appeal.

5. Section 13(1A) of the Commercial Courts Act,

"(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

NC: 2023:KHC:24075-DB COMAP No. 101 of 2023

period 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, 1980 (5 of 1908) as amended by the Act and Section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996.)"

6. Thus, if sub-section (1A) is read in conjunction

with the proviso, it is evident that order rejecting the

application under Order I Rule 10 of the Code of Civil

Procedure is not an order appealable under Order XLIII of

the Code of Civil procedure. Therefore, in the considered

opinion of this Court, appeal under Section 13(1A) of the

Commercial Courts Act, 2015 does not lie.

7. Office is directed to return the certified copy to the

learned counsel on substitution thereof by a photocopy.

NC: 2023:KHC:24075-DB COMAP No. 101 of 2023

8. Accordingly, the appeal is disposed of with liberty

to the appellant to take recourse to such remedy as may be