Karnataka High Court
The National Bank Of Ras Al Khaimah ... vs Mamta Satheesha Kombashi Gaganath ... on 25 October, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
COMMERCIAL APPEAL NO. 234 OF 2024
BETWEEN:
THE NATIONAL BANK OF
RAS AL KHAIMAH (P.S.C.)
P.O. BOX 5300, RAK OPERATIONS CENTRE
EMIRATES ROAD, RAS AL KHAIMAH
U.A.E.
THROUGH
REPRESENTED BY ITS AUTHORIZED SIGNATORY
MR. SABU MAPPALA
...APPELLANT
(BY SRI. PRASANTH V.G., ADVOCATE)
AND:
1 . MAMTA SATHEESHA KOMBASHI
GAGANATH JANIGA
RESIDING AT D2-206, WHITE HOUSE
6TH MAIN, 15TH CROSS, R.T. NAGAR
BENGALURU-560 032
2 . SATHEESHA VENKATARAMANA
RESIDING AT D2-206, WHITE HOUSE
6TH MAIN, 15TH CROSS, R.T. NAGAR
BENGALURU-560 032
3 . CHILLY WILLY TRADING CO LLC
P.O. BOX 64365
DUBAI, U.A.E.
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4 . CHILLY WILLY FOOD AND
BEVERAGE INDUSTRIES LLC
P.O. BOX 18313
DUBAI, U.A.E.
5 . CHILLY WILLY FOOD INDUSTRIES FZE
P.O. BOX 41520
SHARJAH, U.A.E.
6 . K.J. GANIGA
S/O LATE LAKSHMAN GANIGA
AGED ABOUT 80 YEARS
RESIDING AT D2-206, WHITE HOUSE
6TH MAIN, 15TH CROSS, R.T.NAGAR
BENGALURU-560 032
7 . LALITHA GANIGA
W/O K.J. GANIGA
AGED ABOUT 75 YEARS
RESIDING AT D2-206
WHITE HOUSE, 6TH MAIN
15TH CROSS, R.T. NAGAR
BENGALURU-560 032
...RESPONDENTS
(BY SRI. V.B. SHIVAKUMAR, ADVOCATE FOR C/R1)
THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13
OF THE COMMERCIAL COURTS ACT, 2015, PRAYING TO (i) SET
ASIDE THE ORDER PASSED BY THE LXXXVIII ADDL. CITY CIVIL
AND SESSIONS JUDGE, BENGALURU, DATED 19.04.2024, IN
COM EX.499/2021, ALLOWING I.A.No.5 FILED BY RESPONDENT
No.1 UNDER SECTION 47 OF THE CODE OF CIVIL PROCEDURE,
1908 AND DISMISSING I.A.No.4 FILED BY OBJECTORS FOR
RAISING AN ORDER OF ATTACHMENT OF PROPERTIES AS DOES
NOT SURVIVE, AND RESTORE EXECUTION PROCEEDINGS IN COM
EX.499/2021 FILED BY THE APPELLANT HEREIN AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.09.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN
J., PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE G BASAVARAJA
CAV JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)
This Commercial appeal is filed impugning an order
dated 19.04.2024 passed on I.As.No.4 and 5, in Com.
Ex.No.499/2021 by LXXXVIII Additional City Civil and
Sessions Judge (Dedicated Commercial Court) Bengaluru
(hereinafter referred to as the "Commercial Court" for
short).
2. Heard Shri. Prasanth.V.G., learned counsel
appearing for the appellant and Sri. V.B. Shivakumar,
learned counsel appearing for caveator/respondent No.1.
3. The suit was filed against the order passed on
I.As.No.4 and 5 in Com. Ex.No.499/2021. The appellant is a
Banking Company incorporated in accordance with the laws
of United Arab Emirates ("UAE"). It is contended that the
respondents approached appellant for working capital facility
which was granted by the appellant-Bank on the basis of
securities provided by the respondents. The business of third
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respondent was facing cash crunch, he had made a part-
payment towards the facility but was unable to make full
payment. Due to the consistent defaults in making
payments, appellant approached the Foreign Court at Dubai
at the first instance. An ex-parte judgment was passed by
the Foreign Court directing the respondents to jointly pay an
amount payable to the appellant with interest at 9% per
annum from the date of filing of the case till realization.
4. It is contended that when the amount was not
paid, execution proceedings were initiated before the
Commercial Court. During the course of execution
proceedings, the Commercial Court allowed I.A.No.5 filed
under Section 47 of the Civil procedure Code, 1908 (CPC) by
the first respondent and dismissed the execution petition on
the ground that the Foreign Court has erred in satisfying the
criteria laid down under Section 13(b) of CPC and the said
judgment was not been given on merits. Aggrieved by the
same, the present appeal has been filed before this Court.
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5. The learned counsel appearing for the appellant
submits that the order of the Commercial Court amounts to
a termination of execution proceedings and is therefore a
final order having the force of a decree. It is submitted that
the appellant would also have no other remedy as against
the order of the Commercial Court.
6. The learned counsel for the appellant contends
that the instant Impugned Order will be able to be
challenged in an appeal by virtue of the provision of Section
99-A of CPC. Section 99-A of CPC, states that if an order
passed under Section 47 of CPC substantially affects the
rights of the parties, the same can be reversed or modified.
It is submitted that said Section 99-A falls under part VII
(from Section 96 to 112) of CPC which deals with appeals.
It is therefore the contention of the appellant that even
outside Order XLIII of CPC, an appeal will be maintainable
as long as the order passed is under Section 47 and if such
order substantially affects the rights of the parties.
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7. We have considered the contentions advanced.
Section 13 of the Commercial Courts Act, 2015 reads as
follows:-
"13. Appeals from decrees of Commercial
Courts and Commercial Divisions.--(1) 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."
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8. In the instant case, the order is passed exercising
power under Section 44A(3) of CPC read with Section 13(b)
of CPC. It is true that the order has the effect of
terminating the execution proceedings and would have the
effect of a decree under the CPC. However, we are
considering the maintainability of an appeal under Section
13 of the Commercial Courts Act, 2015. The provisions
specifically provide that only orders specifically enumerated
under Order XLIII of CPC would be appealable under Section
13 of the Commercial Courts Act, 2015.
9. In view of the fact that the order sought to be
appealed against in the present case is not an order
enumerated under Order XLIII of CPC, it is clear that an
appeal would not be maintainable from such order.
10. We are fortified in our view by several judgments
of the Apex Court and this Court in M/s. Umrah
Developers v. Sri P. Krishna Reddy, by order dated
19.07.2021 passed in COMAP No.99/2021 and in
Kandla Export Corporation v. M/s. OCI Corporation
reported in AIR 2018 SC (Supp) 789.
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11. In the above view of the matter, we are of the
opinion that the present appeal is not maintainable under
Section 13 of the Commercial Courts Act, 2015. The appeal
is dismissed as not maintainable without prejudice to the
contentions of the parties. The time spent before this Court
shall be disregarded for the purpose of calculating delay, if
any, in the subsequent proceedings.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(G BASAVARAJA)
JUDGE
cp*
