(PER: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE)
1. The appellant has filed the present appeal impugning an
court] in I.A.No.12 in Commercial O.S.No.336/2022.
2. The appellant was arrayed as defendant in the said suit, and
commercial court lacked the jurisdiction to entertain the dispute.
3. The question to be considered at the threshold is whether an
4. At the outset, we would consider it apposite to set out Sub-
section (1A) of Section 13 of the CC Act. The same is reproduced
**
(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:
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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).
5. The proviso to Sub-section (1A) of Section 13 of the CC Act
provides that the appeal would lie against the orders passed by the
Commercial Division or a Commercial Court that are specifically
enumerated under Order XLIII of CPC as amended by the CC Act.
6. There is no dispute that an order dismissing an application
under Order VII Rule 10 of CPC is not an order which is covered
under Order XLIII of CPC. Notwithstanding the same, the learned
counsel for the appellant contends that the appeal is maintainable
as the impugned order passed by the learned commercial court
has the trappings of finality and is thus to be construed as a
judgment passed by the commercial court. He submitted that
Section 13 of the CC Act, as amended by virtue of the "Commercial
Courts, Commercial Division and Commercial Appellate Division of
High Courts (Amendment) Act, 2018" [the CC Amendment Act
2018], stipulates that an appeal would lie against a 'judgment or
order' as against a 'decision' as mentioned under the unamended
section.
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7. He also submitted that a writ petition against the impugned
order would not be an apposite remedy, as it is incompatible with
the legislative intent of an expeditious resolution of commercial
disputes. Additionally, this court, exercising jurisdiction under
Article 226 or 227 of the Constitution of India, would not examine or
re-examine the factual disputes. He also submitted that judicial
superintendence under Article 227 must be exercised very
sparingly.
8. We have heard the learned counsel for the appellant at
length.
9. In our view, the question of whether an appeal lies against a
commercial court's order that is not enumerated in Order XLIII of
the CPC is no longer res integra. The same is covered by the
decision of the Supreme Court in Kandla Export Corporation &
Anr. v. M/s. OCI Corporation & Anr.1, whereby the Supreme
Court has held that the scope of an appeal under Section 13(1) of
the Commercial Courts Act is controlled by the proviso to the said
Sub-section. It is material to note that the proviso to Subsection
(2018) 14 SCC 715
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(1A) of Section 13 of the CC Act is identically worded as the
proviso of Sub-section (1) of Section 13 as in force prior to the
amendment in the year 2018. The relevant extract of the said
decision is set out below:
"13. Section 13(1) of the Commercial Courts Act,
with which we are immediately concerned in these
appeals, is in two parts. The main provision is, as has been
correctly submitted by Shri. Giri, a provision which provides
for appeals from judgments, orders and decrees of the
Commercial Division of the High Court. To this main
provision, an exception is carved out by the proviso. The
primary purpose of a proviso is to qualify the generality of
the main part by providing an exception, which has been
set out with great felicity in CIT v. Indo-Mercantile Bank
Ltd. [CIT v. Indo-Mercantile Bank Ltd., 1959 Supp (2) SCR
256 : AIR 1959 SC 713], thus : (SCR pp. 266-67 : AIR pp.
717-18, paras 9-10)
"9. ... The proper function of a proviso is that it
qualifies the generality of the main enactment by
providing an exception and taking out as it were,
from the main enactment, a portion which, but for
the proviso would fall within the main enactment.
Ordinarily it is foreign to the proper function of a
proviso to read it as providing something by way of
an addendum or dealing with a subject which is
foreign to the main enactment.
'8. ... it is a fundamental rule of construction that a
proviso must be considered with relation to the
principal matter to which it stands as a proviso.'
Therefore, it is to be construed harmoniously with
the main enactment. (Per Das, C.J. in Abdul Jabar
Butt v. State of J&K [Abdul Jabar Butt v. State of
J&K, 1957 SCR 51 : AIR 1957 SC 281 : 1957 Cri LJ
404], SCR p. 59 : AIR p. 284, para 8). Bhagwati, J.,
in Ram Narain Sons Ltd. v. CST [Ram Narain Sons
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Ltd. v. CST, (1955) 2 SCR 483 : AIR 1955 SC 765],
said : (SCR p. 493 : AIR p. 769, para 10)
'10. It is a cardinal rule of interpretation that a
proviso to a particular provision of a statute only embraces
the field which is covered by the main provision. It carves
out an exception to the main provision to which it has been
enacted as a proviso and to no other.'
10. Lord Macmillan in Madras & Southern Mahratta
Railway Co. Ltd. v. Bezwada Municipality [Madras &
Southern Mahratta Railway Co. Ltd. v. Bezwada
Municipality, 1944 SCC OnLine PC 7 : (1943-44) 71
IA 113] laid down the sphere of a proviso as follows
: (IA p. 122 : SCC OnLine PC)
'... The proper function of a proviso is to except and
deal with a case which would otherwise fall within
the general language of the main enactment, and its
effect is confined to that case. Where, as in the
present case, the language of the main enactment is
clear and unambiguous, a proviso can have no
repercussion on the interpretation of the main
enactment, so as to exclude, from it by implication
what clearly falls within its express terms.'
The territory of a proviso therefore is to carve out an
exception to the main enactment and exclude
something which otherwise would have been within the
section. It has to operate in the same field and if the
language of the main enactment is clear it cannot be
used for the purpose of interpreting the main
enactment or to exclude by implication what the
enactment clearly says unless the words of the proviso
are such that that is its necessary effect. (Vide also
Toronto Corpn. v. Attorney-General of Canada [Toronto
Corpn. v. Attorney-General of Canada, [1946] A.C. 32
(PC)], AC p. 37.)"
14. The proviso goes on to state that an appeal shall lie
from such orders passed by the Commercial Division of the
High Court that are specifically enumerated under Order
43 of the Code of Civil Procedure Code, 1908, and Section
37 of the Arbitration Act. It will at once be noticed that
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orders that are not specifically enumerated under Order 43
CPC would, therefore, not be appealable, and appeals that
are mentioned in Section 37 of the Arbitration Act alone
are appeals that can be made to the Commercial Appellate
Division of a High Court.
15. Thus, an order which refers parties to arbitration under
Section 8, not being appealable under Section 37(1)(a),
would not be appealable under Section 13(1) of the
Commercial Courts Act. Similarly, an appeal rejecting a
plea referred to in sub-sections (2) and (3) of Section 16 of
the Arbitration Act would equally not be appealable under
Section 37(2)(a) and, therefore, under Section 13(1) of the
Commercial Courts Act."
10. It is also relevant to refer to the provisions of subsection (2)
of Section 13 of the CC Act. The said subsection contains a non
obstante clause that clearly indicates that its provisions would have
an overriding effect. It expressly provides that, notwithstanding
anything contained in any other law for the time being in force or
the Letters Patent of a High Court, no appeal would lie from any
order or decree of a Commercial Division or a Commercial Court
otherwise than in accordance with the provisions of the CC Act.
The Supreme Court had examined the import of the proviso to
Section 13 of the CC Act, which is now set out as the proviso to
Sub-section (1A) of Section 13 of the CC Act.
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11. In HPL (India) Limited & Ors. v. QRG Enterprises and
Another2, the Delhi High Court had considered the scope of an
appeal under Section 13 of the CC Act and held as under.
30. We now come to the meaning to be ascribed to the
proviso in Section 13(1). It clearly stipulates 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,
and Section 37 of the Arbitration and Conciliation Act,
1996. We have seen that 'orders' as understood under the
CPC are different and distinct from 'decrees'. And, orders
are nothing but the formal expression of any decision of a
Civil Court not amounting to a decree. Therefore, the
amplitude and width of the expression 'order' is very wide
under the CPC itself but not all orders are appealable. The
appealable orders are enumerated in Order XLIII of the
CPC. We have already pointed out above, that there are
only two kinds of appeals recognized under the CPC,
namely, - 'Appeals from decrees' and 'Appeals from
orders'. Section 104, which has been extracted earlier in
this judgment, specifies the orders from which appeals lie.
It clearly provides that an appeal shall lie from the orders
enumerated in the said provision itself and, save as
otherwise expressly provided in the body of the CPC or by
any law for the time being in force, from no other orders.
This means that appeals from orders are restricted to
those orders which are either specified in Section 104 itself
or expressly provided in the body of the Code or by any
law for the time being in force. Insofar as the impugned
order is concerned, it is clear that it does not fall within the
orders specified under Section 104. We now have to look
at Order XLIII Rule 1 which stipulates that an appeal shall
lie from the orders enumerated therein under the
provisions of Section 104. In other words, only an order
specified under Order XLIII Rule 1 would be appealable
and, read with the provisions of Section 104, no other
order would be an appealable order under the CPC. In this
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backdrop, the proviso to Section 13(1) makes it abundantly
clear 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 and Section 37 of the Arbitration
and Conciliation Act, 1996. Clearly, in our view, this
restricts the appealable orders to only those orders which
are specifically enumerated in Order XLIII. In the present
case, the impugned order is admittedly not one specified
under Order XLIII.
** ** ** ** **
35. Now, let us examine sub-section (2) of section 13 of
the said Act. As noticed above, it begins with the non
obstante expression "notwithstanding anything contained
in any other law for the time being in force or Letters
Patent of a High Court ..". The words - "any other law for
the time being in force" - would include the Delhi High
Court Act, 1966. The portion after the non obstante
expression specifically cautions that "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". In other words, whatever may be
contained in, inter alia, the Delhi High Court Act, 1966, an
appeal from any order or decree of a Commercial Division
or Commercial Court "shall lie" only in accordance with the
provisions of the said Act. To be clear, if an appeal from a
particular kind of order or decree were to be provided
under the Delhi High Court Act, 1966 but not under the
said Act then, such an order or decree would not be
appealable. Therefore, even if, by virtue of section 10 of
the Delhi High Court Act, 1966, an appeal lay from a
particular kind of an order, no appeal could be preferred
thereagainst unless the said Act itself provided for such an
appeal.
36. Reading the entire section 13 of the said Act the clear
position is that an appeal lies from an order which is
specifically enumerated under Order XLIII CPC.
Furthermore, no appeal would lie from an order not
specifically enumerated in Order XLIII CPC because of the
incorporation of the expression "from no other orders"
appearing in section 104 CPC (which is clearly applicable
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by virtue of section 16(2) of the said Act). And, Section 10
of the Delhi High Court Act, 1966 would not come to the
rescue because of the non obstante provision contained in
section 13(2) of the said Act.
37. 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.
12. The court also examined the contention whether by virtue of
the decision of the Supreme Court in Shah Babulal Khimji v.
Jayaben D. Kania3 - which was relied upon by the learned
counsel for the appellant - the scope of the appeal under Section
13(1) of the CC Act was expansive to include judgments which fell
within the meaning of the term as explained in the case of Shah
Babulal Khimji (supra), and held as under.
51. On going through Khimji's case (supra), it is evident
that the word "judgment" as used in the Letters Patent of
the High Courts, is much wider and goes beyond the
orders specifically enumerated under Order XLIII of the
CPC. But, what must not be forgotten is that the word
"judgment" in Khimji's case (supra) has been interpreted as
appearing in and in the context of the Letters Patent of
High Courts (which would also by analogy include Section
10 of the Delhi High Court Act, 1966). However, the
meaning of the word "judgment" as appearing in the CPC,
as defined in Section 2(9) thereof is clearly linked with the
definition of a "decree". The word 'judgment' in Section
13(1) of the said Act has to be considered not in the
(1981) 4 SCC 8
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context of any Letters Patent of a High Court or a provision
such as Section 10 of the Delhi High Court Act, 1966 but,
in the context of the Code of Civil Procedure inasmuch as
(1) the Commercial Division and the Commercial Court are
enjoined by Section 16 to follow the provisions of the CPC,
as amended by the said Act, in the trial of a suit in respect
of a Commercial dispute of a specified value; (2) Section
13(2) of the said Act specifically excludes the operation of
the provisions contained in the Letters Patent of a High
Court or any other law for the time being in force (which
includes Section 10 of the Delhi High Court Act, 1966)
insofar as appeals from any order or decree of a
Commercial Division or a Commercial Court are
concerned. We have already indicated that the word
"judgment" as appearing in Section 13(1) of the said Act is
actually a misnomer and the said word has to be construed
as a reference to a decree. Therefore, in our view, the
wider meaning ascribed to the word "judgment" under the
Letters patent of High Courts or under a provision, such as
Section 10 of the Delhi High Court Act, 1966, cannot be
imported into Section 13(1) of the said Act.
13. The view that the remedy of an appeal under Section 13 of
the CC Act is confined only to orders as enumerated under Order
XLIII of CPC was accepted by the Andhra Pradesh High Court in
P.Udaya Bhaskara Reddy v. Sreepada Real Estate &
Developers Hyderabad and another4; the Calcutta High Court in
Alok Saraf and Others v. Shyam Sundar Nangalia and Others5;
as well as the Orissa High Court in Sushanta Kumar Kabi v.
2024 SCC Online AP 4102
2025 SCC Online Cal 7835
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AABSyS Information Technology, Represented by Namita
Priya and Others6.
14. A similar view has been expressed by the Delhi High Court in
HP Cotton Textile Mills Ltd., v. Oriental Insurance Company
Ltd.,7; Arrena Overseas Pvt. Ltd. v. Batra Art Press8 and in
Shyam Sunder Suri and another v. P. C. Jain Textiles Pvt.
Limited9.
15. We may note that the Delhi High Court in D&H India Limited
v Superon Schweisstechnik India Limited10 held that the proviso
to Subsection (1A) to Section 13 did not dilute the provision of
Section 13(1A) and thus could not be read as excluding the remedy
of an appeal in respect of all orders other than those specified in
Order XLIII of the CPC. It would be apposite to refer to the
following passage from the said decision.
"23. On a plain reading, the proviso to Section 13 (1A) of
the Commercial Courts Act is an enabling, rather than a
disabling, provision. There is nothing, in the said proviso,
which would seem to indicate that it dilutes the effect of
sub-section (1A) of Section 13. If we were to read the said
proviso as excluding, from the jurisdiction of the appellate
2025 SCC Online Ori 414.
Neutral citation 2023/DHC/000632
Neutral Citation 2023/DHC/7446-DB
2025 SCC Online Del 2738
2020 SCC Online Del 477
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court, all orders, passed by a Commercial Court, save and
except those which find specific enumeration in Order XLIII
of the CPC, it may amount to rewriting the proviso to read
"Provided that no appeal shall lie, except from such orders
passed by a Commercial Division or the Commercial Court
as 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)." We are not convinced that the
province of our jurisdiction, in the present case, allows us
to so legislate. To our mind, therefore, subsection (1A) of
Section 13 of the Commercial Courts Act allows appeals to
be preferred against all judgements and orders of the
Commercial Division of the High Court, to the Commercial
Appellate Division thereof, and the proviso, to the said sub-
section merely clarifies that, in the case of orders
specifically enumerated in Order XLIII of the CPC, such
appeals shall lie."
16. However, in a subsequent decision in Odeon Builders Pvt.
Ltd. v. NBCC (India) Ltd.11, a Division Bench of the Delhi High
Court faulted that decision. We find it appropriate to refer to the
following extract from the said decision.
"8. We had doubts about the correctness of the view taken
in D & H India Ltd. (Supra). We felt that the said view went
against the very purpose for which the Commercial Courts
Act was enacted i.e. to provide for speedy disposal of high
value commercial disputes, as is evident from the
Statement of Objections and Reasons for the said Act. The
effect of judgment in D & H India Ltd. (Supra) was that all
orders passed by the Commercial Courts, or the
Commercial Division of the High Court, would be
appealable when, before the enactment of the Commercial
Courts Act, only such orders were appealable, which were
either specifically made appealable, such as, under
Section 104, or within Order XLIII CPC, or qualified as
2021 SCC Online Del 4390
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"judgments" within the meaning of that expression, as
explained by the Supreme Court in Shah Babulal Khimji V.
Jayaben D. Kania, (1981) 4 SCC 8 : AIR 1981 SC 1786.
Thus, the right to prefer an appeal - if D & H India Ltd.
(Supra) were to be accepted as the correct view, stood
expanded by Section 13 of the Commercial Court Act,
when compared to the right of appeal available prior to its
enactment. We were of the prima facie view that this would
go contrary to the purpose and object of the Commercial
Courts Act, as creation of a right of appeal against all and
sundry orders passed in Original Commercial Causes
would impede the progress of the causes. Every appeal at
the interlocutory stage of the proceedings acts as a speed
breaker in the progress of the cause. Moreover, if the
proviso to Section 13(1A) were to be read as not limiting or
qualifying the right of appeal contained in Section 13(1)
and the first part of Section 13(1A), then there was no
need to enact the proviso. The view taken in D & H India
Ltd. (Supra) rendered the proviso to Section 13(1A) a
surplusage - which is not to be presumed in respect of any
part of a legislation. Thirdly, the view taken by the Division
Bench in D & H India Ltd. (Supra) neither took into account
Section 13(2), nor the interpretation adopted by the
Division Bench could be reconciled with the clear plain
meaning of Section 13(2). A party aggrieved by an order
passed at the interlocutory stage of the proceedings is not
entirely remediless, in as much, as, Section 105 CPC
entitles the party aggrieved by any such interlocutory
order, to assail the same which appealing against the
decree by raising a ground in the Memorandum of Appeal.
Moreover, the option to assail the interlocutory order
before the Supreme Court, by preferring a Special Leave
Petition, is also available. Since we were finding it difficult
to persuade ourselves to accept the view expressed in D &
H India Ltd. (Supra), we decided to hear the submissions
of learned counsels, and directed them to place on record
copies of the judgements that they wish to rely upon.
9. The respondents, who are opposing the maintainability
of the appeals, have placed before the Court the
judgement rendered by the Supreme Court in Kandla
Export Corporation v. OCI Corporation, (2018) 14 SCC
715, wherein the Supreme Court has interpreted Section
13 of the Commercial Courts Act, and held as follows:
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"** ** ** **"
10. A perusal of the above extract shows that the Supreme
Court has already interpreted and pronounced upon the
scope of the appeals maintainable under Section 13 of the
Commercial Courts Act, and while doing so, the Supreme
Court has held that the primary purpose of the proviso is to
qualify the generality of the main part by providing an
exception.
11. This decision of the Supreme Court in Kandla Export
Corporation (supra) decided on 07.02.2018, was rendered
prior to the judgement in D & H India Ltd. (supra), rendered
by a Division Bench of this Court. However, this judgement
was, apparently, not brought to the notice of the Division
Bench and has, therefore, escaped the attention of the
Division Bench.
12. A perusal of D & H India Ltd. (supra) shows that the
Division Bench has also not referred to and dealt with,
specifically Section 13 (2) of the Commercial Courts Act
that, in terms, states that "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." Thus, an appeal from an order passed in a
commercial cause would lie only in accordance with
Section 13(1) and 13(1A), and not otherwise. An appeal,
by resort to the Letters Patent (in the light of the judgement
of the Supreme Court in Shah Babulal Khimji (supra)) is
also not maintainable under Section 13 of the Commercial
Courts Act.
17. We may note that a Special Leave Petition was preferred
against the aforesaid decision in Odeon Builders (supra).
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However, the Supreme Court dismissed the SLP12 by an order
dated 31.01.2022, which reads as follows:
"Heard learned counsel for the petitioner.
We do not find any error in the impugned order
passed by the Division Bench of the High Court holding
that all orders passed by the Commercial Division of the
High Court are not appealable.
The Special Leave Petition is, accordingly,
dismissed.
Pending application(s), if any, also stand disposed
of."
18. We may also note that the Bombay High Court had also
expressed a similar view in Bank of India and Another v. Maruti
Civil Works13. The Bombay High Court was concerned with the
question of the maintainability of an appeal against an order
rejecting an application filed under Order VII, Rule 10 and Rule
11(d) of the CPC. The court found that the appeal was not
maintainable. The relevant extract of the said decision is set out
below:
"15. If we compare the unamended provision with
the amended provision of Section 13 of the Act of 2015,
what we find is that earlier an appeal was provided against
a "decision" of a Commercial Court or Commercial Division
Petition for Special Leave to Appeal No.901/2022 (M/s Rayban Foods Private Limited
v. GAC Logistics Private Limited)
2023 SCC Online Bom 2667
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of a High Court to the Commercial Division of that High
Court, whereas, after the amendment the expression
"decision" has been substituted by the expression
"judgment or order". It is also noticeable that the proviso
appended to sub section (1) of section 13 which earlier
existed has been retained in the amended provision as
well. To determine as to whether the instant appeal is
maintainable, we may also refer to sub section (2) of
section 13 of the Commercial Courts Act which begins with
a non-obstante clause and provides that 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 under Section 13 otherwise than
in accordance with the provisions of the said Act.
16. In our opinion, sub section 2 of Section 13
unequivocally provides that any appeal against a decree or
order of a Commercial Court or Commercial Division shall
lie only in accordance with the provisions of the Act and in
view of what has been provided for in sub section 2 of
Section 13, the proviso appended to Section 13 assumes
importance.
17. Sub Section 1A of Section 13 provides that a
person aggrieved by a judgment or order can file an
appeal, however, the said provision is to be read in
conjunction with the proviso which specifically states that
an appeal shall lie only from orders which are specifically
enumerated under Order XLIII of the CPC. The
occurrences of the expression "shall" and "specifically" in
the proviso has to be noted for correctly understanding the
legislative intent in framing the scheme of Section 13 of the
Act of 2015. It is also noteworthy that the order under
challenge in this appeal has been passed by the learned
trial court rejecting the Application moved by the
Defendants under Order VII Rule 10 and Rule 11(d) of the
CPC. Such an order is not enumerated in Order XLIII of
the CPC, though Rule 1(a) of Order XLIII enlists an order
passed under Order VII Rule 10 for returning the plaint.
Thus, Order XLIII enlists the order passed on an
Application under Order VII Rule 10 if it is allowed,
however, it does not enlist the order in case such an
Application is rejected. Order XLIII also does not enlist any
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order passed on an Application under Order VII Rule 11(d)
of the CPC.
** ** ** **
28. Thus, from the discussion made above, we are
clear in our mind that an appeal under Section 13(1A) of
the Act of 2015 would lie only against the judgment and
orders which are enumerated or enlisted under Order XLIII
of the CPC. An order rejecting an Application moved under
Order VII Rule 10 or Order VII Rule 11(d) of the CPC is not
enumerated or enlisted in Order XLIII of the CPC hence,
such an order is not appealable following the law laid down
by this court in the case of Skil-Himachal Infrastructure &
Tourism Ltd. (supra).
19. A Special Leave Petition was filed against the decision in
Bank of India (supra). However, the Supreme Court dismissed the
same by an Order dated 15.03.202414.
20. We may also note that the decision of the Bombay High
Court in Bank of India v. Maruti Civil Works15 fell for
consideration before the Supreme Court in MITC Rolling Mills
Private Limited and Another v. Renuka Realtors and Others16.
In the said case, the Supreme Court considered the challenge to a
decision of the Bombay High Court holding that an appeal against
an order of the Commercial Court rejecting the plaint was not
Petition for Special Leave to Appeal (C) No.6039/2024 (Bank of India & Anr. v. M/s.
Maruti Civil Works)
(supra)
2025 SCC Online SC 2375
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maintainable on the ground that the plaint did not fall within the
ambit of Order XLIII of CPC. The Supreme Court held that an order
rejecting a plaint under Order VII Rule 11 of the CPC would finally
dispose of the lis and would amount to a decree. In that view, an
appeal would be maintainable. In that case, the Supreme Court
also distinguished the decision of the Bombay High Court in the
case of Bank of India v. Maruti Civil Works (Supra) as not
applicable, for the reason that it related to the order rejecting the
applications under Order VII Rule 10 and Order VII Rule 11(d) of
CPC, which were orders that were not enumerated under Order
XLIII of CPC. It is relevant to refer to the following extracts of the
said decision.
17. Section 13(1A) of the CCA, 2015, is in two
distinct parts. The main provision contemplates appeals
against 'judgments' and 'orders' of the Commercial Court
to the Commercial Appellate Division of the High Court.
The proviso, operating as an exception, must be construed
harmoniously with the main provision and not in derogation
thereof. Where the language of the main provision is plain
and unambiguous, the proviso cannot be invoked to curtail
or whittle down the scope of the principal enactment, save
and except where such exclusion is clearly and expressly
contemplated. The proviso merely restricts appeals against
interlocutory orders to those specifically enumerated under
Order XLIII CPC and Section 37 of the Arbitration and
Conciliation Act, 1996. Consequently, only such
interlocutory orders as are expressly specified therein
would be amenable to an appeal under the proviso; orders
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not so enumerated would not fall within the restricted fold
of the proviso.
18. Coming to the judgment relied upon by the
respondents, i.e., Bank of India (supra), we are of the view
that the same is clearly distinguishable, and the ratio
thereof has no applicability to the present situation
because, in the said case, the order under challenge was
one rejecting the application moved under Order VII Rule
10 or under Order VII Rule 11(d) of the CPC. Paragraph
No. 17, relied upon by the respondents for canvassing their
submission, reads as under:
"17. Sub Section 1A of Section 13 provides that a
person aggrieved by a judgment or order can file an
appeal, however, the said provision is to be read in
conjunction with the proviso which specifically states that
an appeal shall lie only from orders which are specifically
enumerated under Order XLIII of the CPC. The
occurrences of the expression "shall" and "specifically" in
the proviso has to be noted for correctly understanding
the legislative intent in framing the scheme of Section 13
of the Act of 2015. It is also noteworthy that the order
under challenge in this appeal has been passed by
the learned trial court rejecting the Application
moved by the Defendants under Order VII Rule 10
and Rule 11(d) of the CPC. Such an order is not
enumerated in Order XLIII of the CPC, though Rule
1(a) of Order XLIII enlists an order passed under
Order VII Rule 10 for returning the plaint. Thus, Order
XLIII enlists the order passed on an Application
under Order VII Rule 10 if it is allowed; however, it
does not enlist the order in case such an Application
is rejected. Order XLIII also does not enlist any order
passed on an Application under Order VII Rule 11(d) of
the CPC."
[Emphasis supplied]
19. A bare reading of the above paragraph makes it
manifest that the said case involved a challenge to an
order rejecting application(s) under Order VII Rule 10 and
Order VII Rule 11(d) of the CPC, which order(s) are not
enumerated under Order XLIII of the CPC. Thus, there
cannot be any quarrel with the proposition that such an
order would not be amenable to an appeal under Section
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13(1A) of the CCA, 2015, and rather, can be challenged by
filing a revision or a petition/application under Article 227 of
the Constitution of India, as the case may be.
21. The learned counsel for the appellant had referred to the
decision of the Division Bench of this Court in Smt. Supriya
Shrinate, New Delhi v. M/s MRT Music ORS., Bangalore and
others17. In the said case, the Division Bench of this Court
considered an appeal challenging an order passed under Order
XXXIX Rule 1 and 2 of the CPC for an ad-interim temporary
injunction passed by the learned Commercial Court.
22. There is no dispute that an order passed on an application
under Order XXXIX Rule 1 and 2 of CPC would be appealable.
While examining the maintainability of the appeal, the court sought
to distinguish the Supreme Court's decision in Kandla Exports
Corporation (supra), on the ground that it was rendered in the
context of Section 13 of the CC Act, prior to its amendment by the
CC Amendment Act 2018.
23. It is relevant to set out Section 13 of the CC Act as it was in
force both before and after the amendment that came into force on
03.05.2018. The same is set out below:
ILR 2022 KAR 5159
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Section 13 of the CC Act, prior to its amendment:
"Section 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 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 (5 of 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."
Section 13 of the CC Act, after its amendment vide Act
No.28 of 2018 w.e.f. 03.05.2018
"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
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Code of Civil Procedure, 1908 (5 of 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."
24. It is apparent from the above, that Sub-section (1) of Section
13 was substituted and now contemplates an appeal against an
order of the Commercial Court, which is below the level of a District
Judge. Subsection (1A) of Section 13 provides for an appeal
against the judgment or order of a Commercial Court at the level of
a District Judge or an order of the Commercial Division of a High
Court.
25. The statement of objects and reasons to the CC Amendment
Act, 2018 indicates that the amendment to Section 13 of the CC
Act was, inter alia, introduced in view of the amendments enabling
the State Governments to establish Commercial Courts and
Commercial Appellate Courts at the District level. The word
'decision' in Sub-section (1) of Section 13 of the CC Act is now
replaced with the words 'judgment or order', which are narrower
than the scope of the term 'decision'.
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26. The proviso to Section 13(1) of the CC Act stands deleted
and placed as proviso to Sub-section (1A) of Section 13 of the CC
Act. However, we are unable to accept that replacing the proviso to
Sub-section (1) to Subsection (1A) of Section 13 of the CC Act
changes its meaning or import as explained by the Supreme Court
in Kandla Exports Corporation18.
27. The present appeal is preferred under Section 13(1A) of the
CC Act, and therefore, the meaning of the proviso to Section
13(1A) as explained in Kandla Exports Corporation (supra)
would control the scope of the appeal.
28. The decision of the Supreme Court in the case of Kandla
Exports Corporation (supra) cannot be disregarded merely
because it was rendered in the context of Section 13 of the CC Act
as it existed prior to its amendment in 2018.
29. The question regarding Amendment to Section 13(1A) was
also considered by the Division Bench of the Delhi High Court in
(supra)
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Ramacivil India Construction Pvt. Ltd. v. Union of India19. It is
apposite to refer to the following observations made by the Court:
"34. As already discussed above, even by
amendment in the year 2018, the proviso which existed
prior to amendment has been retained, and accordingly the
ratio, that appeal under Section 13 of the Commercial
Courts Act, 2015 would not be maintainable, except
against orders which are enlisted in Order XLIII of the
CPC, as held by Hon'ble Supreme Court in Kandla Export
(supra), will have its application with full force in the facts
of the instant appeals as well."
30. Considering the observations made by the Supreme Court in
MITC Rolling Mills Private Limited and Another v. Renuka
Realtors and others20, the appellant can draw no assistance from
the observations made by this Court in Smt. Supriya Shrinate
(supra).
31. In view of the above, we find that the present appeal is not
maintainable. We also note that the present appeal was listed for
the first time on 24.06.2024 and has been listed on twenty-nine
occasions thereafter, including the hearing this day. The appellant
has been enjoying an exparte interim order since 25.06.2024. We
also note that the matter had been adjourned on several occasions
at the counsel's request. On a few occasions, the matter had been
2025 SCC Online Del 9140
supra
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adjourned on the ground that the parties were attempting to settle
their disputes amicably. Considering the time spent by the parties
before this Court and that the object of the CC Act is an expeditious
disposal of matters involving commercial disputes, we request the
learned Commercial Court to decide the suit as expeditiously as
possible. The parties are also directed to fully cooperate with the
Commercial Court to expedite the disposal of the commercial suit.
32. The appeal is dismissed as not maintainable.
Sd/-
(VIBHU BAKHRU)
CHIEF JUSTICE
Sd/-
(C.M. POONACHA)
JUDGE
KMV
List No.: 2 Sl No.: 24
