Madras High Court
M/S.Poorvikaas Global Logistics vs M/S.Stoneplus Enterprises on 7 December, 2023
Author: D.Krishnakumar
Bench: D.Krishnakumar
O.S.A.(CAD) No.122 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.12.2023
CORAM
THE HONOURABLE MR. JUSTICE D.KRISHNAKUMAR
and
THE HONOURABLE MR. JUSTICE P.DHANABAL
O.S.A.(CAD) No.122 of 2022
and CMP.No.13297 of 2022
M/s.Poorvikaas Global Logistics
Rep. by its Manager V.Gurumoorthi,
Old No.76, New No.80,
ANP Complex, Moore Street,
Chennai 600 001. ...appellant
Vs.
M/s.Stoneplus Enterprises,
Private Limited,
Rep. by its Director Mr.Prasan Dilip Shah,
Reg. Office: 1-118/19, East -19,
Solitaire Projects,
Rohini Layout, Opp. Cyber Towers,
Madhapur, Hyderabad 500 081
Telangana State.
...respondent
Prayer: Original Side Appeal filed under Section 13(1) of the
Commercial Courts Act against the order dated 05.09.2017 passed in
Application No.1446 of 2017 in CS.No.149 of 2017 by a learned Single
Judge of this Court.
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Page No.1/9
O.S.A.(CAD) No.122 of 2022
For Appellant : Mr.T.M.Hariharan
For Respondent : Mr.N.Ramakrishnan
for M/s.Waron & Sairams
JUDGMENT
[Judgment of the Court was delivered by D.KRISHNAKUMAR, J]
This appeal has been filed by the appellant challenging the order of
the learned Single Judge dated 05.09.2017 in Application No.1446 of 2017,
which is filed under Order 38 Rule 5 of CPC, directing them to furnish
security to the value of Rs.27,13,449/-.
2. It is the contention of the learned counsel for the appellant that
since investigation is pending for a money claim, there is no basis to direct
the appellant to furnish security. Further, the respondent has not complied
with any of the mandatory statutory requirements for invoking Order 14
Rule 8 of the Original Side Rules of this Court read with Order 38 Rule 5 of
CPC for furnishing security. Hence, the learned counsel seeks to set aside
the order of the learned Single Judge.
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3. The learned counsel appearing for the respondent raised a
preliminary objection regarding the maintainability of the present appeal as
no appeal lies against the order passed in the application filed under Order
38 Rule 5 CPC.
4. Heard both sides and perused the materials available on record.
5. As rightly pointed out by the learned counsel for the respondent, it
has to be decided as to whether an appeal lies against the order passed in
the application filed under Order 38 Rule 5 CPC. The issue involved in this
appeal had already been decided by this Court in O.S.A(CAD)No.70 of
2021, dated 20.11.2023, wherein this Court has held that the order passed
in the application filed under Order 38 Rule 5 CPC would not come under
the purview of appealable orders under Order 43 Rule 1 CPC. The relevant
portion of the said order reads as follows:
"10. The present intra Court appeal has been filed
under the provisions of Section 13(1) of the Commercial
Courts Act, 2015, which details with appeal remedy from
decrees of Commercial Courts and Commercial Divisions and
the same reads as follows:
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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 the 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 43 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."
Proviso to Section 13(1) of the Commercial Courts Act
specifies that an appeal shall lie from such orders passed by
a Commercial Division or a Commercial Court that are
specifically enumerated under Order 43 Rule of CPC.
11. Order 43 Rule 1 CPC deals with appeals from
orders and the same reads as under:
" Appeals from Orders
An appeal shall lie from the following Orders under the
provisions of Section 104, namely:-
(a) an Order under rule 10 of Order VII returning a
plaint to be presented to the proper Court 1[except where the
procedure specified in rule 10A of Order VII has been
followed];
2* * * *
(c) an Order under rule 9 of Order IX rejecting an
application (in a case open to appeal) for an Order to set
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aside the dismissal of a suit;
(d) an Order under rule 13 of Order IX rejecting an
application (in a case open to appeal) for an Order to set
aside a decree passed ex parte.
2* * * * *
(f) an Order under rule 21 of Order XI;
2* * * * *
(i) an Order under rule 34 of Order XXI on an
objection to the draft of a document or of an endorsement;
(j) an Order under rule 72 or rule 92 of Order XXI
setting aside or refusing to set aside a sale;
1[(ja) an Order rejecting an application made under
sub-rule (1) of rule 106 of Order XXI, provided that an Order
on the original application, that is to say, the application
referred to in sub-rule (1) of rule 105 of that Order is
appealable.]
(k) an Order under rule 9 of Order XXII refusing to set
aside the abatement or dismissal of a suit;
(l) an Order under rule 10 of Order XXII giving or
refusing to give leave;
3* * * * *
(n) an Order under rule 2 of Order XXV rejecting an
application (in a case open to appeal) for an Order to set
aside the dismissal of a suit;
4[(na) an Order under rule 5 or rule 7 of Order XXXIII
rejecting an application for permission to sue as an indigent
persons:]
3* * * * *
(p) Orders in interpleader-suits under rule 3, rule 4 or
rule 6 of Order XXXV;
(q) an Order under rule 2, rule 3 or rule 6 of Order
XXXVIII;
(r) an Order under rule 1, rule 2 4[rule 2A], rule 4 or
rule 10 of Order XXXIX; (s) an Order under rule 1 or rule 4
of Order XL;
(t) an Order of refusal under rule 19 of Order XLI to
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re-admit, or under rule 21 of Order XLI to re-hear, an
appeal;
(u) an Order rule 23 [or rule 23A] of Order XLI
remanding a case, where an appeal would lie from the decree
of the Appellate Court;
5* * * *
(w) an Order under rule 4 of Order XLVII granting an
application for review."
A careful reading of Order 43 Rule 1 CP reveals that an order
passed in the application filed under Order 38 Rule 5 CPC
would not comes under the purview of appealable orders
under Order 43 Rule 1 CPC.
12. A Hon'ble Division Bench of this Court had an
occasion to deal with a similar issue in an appeal filed
against the dismissal of the application seeking rejection of
the plaint under Order VII Rule 11 CPC in the decision in
Hindustan Unilever Limited Ponds House v. S.Shanthi and
Others [2021 SCC Online Mad 5428], wherein it was held as
under:
"98. The appellant in OSA No. 208 of 2021 has
referred to a judgment reported at (2005) 4 SCC 480 (Kailash
v. Nanhku) for the proposition that merely because a
provision of law is couched in a negative language implying a
mandatory character, the same is not without exceptions; and,
when a court is called upon to interpret the nature of the
provision, it may, keeping in view the entire context in which
the provision came to be enacted, hold the same to be
directory, though worded in the negative form. That matter
also pertained to the delay in filing a written statement; but
in an election petition. The submission of the relevant
appellant by placing the judgment is that if it is possible, in
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the interest of justice, to read down negative words and make
for exceptions, the absence of negative words in the proviso
to sub-sections (1) and (1A) of Section 13 of the said Act
should guide the court to interpret such provision as being
permissive of appeals rather than restricting the scope of
appellability.
105. Accordingly, OSA (CAD) No. 3 of 2021 is found to
be not maintainable since it is an appeal against an order
refusing to reject the plaint under Order VII Rule 11 of the
Code and no appeal is provided against such an order in
Order XLIII of the Code. For the same reason, OSA (CAD)
No. 4 of 2021 is held to not be maintainable since the appeal
is directed against an order refusing to strike off a defendant
from the array of parties, against which no appeal is provided
for in Order XLIII of the Code. OSA (CAD) No. 29 of 2021 is
not maintainable as the order impugned is one dismissing an
application for revocation of the leave granted under Clause
12 of the Letters Patent. Though such appeal may have been
maintainable under Clause 15 of the Letters Patent, in view of
the bar under Section 13(2) of the said Act and no provision
for such appeal being recognised in Order XLIII of the Code,
such appeal is not maintainable. For the same reasons, OSA
(CAD) No. 30 of 2021 is found to not be maintainable as the
order impugned is the dismissal of an application to reject the
plaint under Order VII Rule 11 of the Code. Nonetheless, the
objections raised by the appellant may be urged at the trial."
13. Considering the aforesaid provisions of the Act as
well as the Division Bench decision of this Court cited supra,
the order passed in the application filed under Order 38 Rule
5 CPC would not comes under the purview of appealable
orders under Order 43 Rule 1 CPC. Therefore, accepting the
contention of the respondent that the instant appeal cannot be
entertained and the same is not maintainable, this Court is of
the view that the present appeal is liable to be dismissed as
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not maintainable."
6. In view of the above decision, this Court is of the view that the
instant appeal also cannot be entertained and the same is liable to be
dismissed as not maintainable. Accordingly, this appeal is dismissed.
No costs. Consequently, connected miscellaneous petition is closed.
[D.K.K., J] [P.D.B., J]
07.12.2023
Index : Yes / No
Speaking order: Yes/No
pvs
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D.KRISHNAKUMAR, J.
and
P.DHANABAL, J.
pvs
07.12.2023
https://www.mhc.tn.gov.in/judis
