Appeals To Commercial Appellate Division Lie From Orders Passed Under HC Rules : Delhi HC [Read Order]

• A)Orders passed by the Commercial Division/Commercial Court that are specifically enumerated under Order XLIII (Order 43) of the Code of Civil Procedure, 1908 (hereinafter "CPC, 1908") as amended by the Commercial Courts Act^[1];
• B)Orders passed by the Commercial Division/Commercial Court under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter "Arbitration Act, 1996")^[2];
• C)Orders passed by the Commercial Division/Commercial Court which have 'not been passed under any of the provisions of the CPC' or have been passed under the Delhi High Court Rules, 2018^[3].

For ease of reference, Section 13 of the Commercial Courts Act, 2015 provides for the following-

"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 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."

It will be seen that while the Commercial Courts Act already provided that Section 13 of the said Act can be invoked to assail Judgements or Orders passed under (A) and (B) above, the Superon judgment appears to have added another category [being (C) above] of Judgments and Orders which can be assailed under Section 13. The Superon Judgment assumes significance inasmuch as the Delhi High Court had earlier, in the case of 'HPL (India) Limited and Ors. V QRG Enterprises and Anr.' [being FAO (OS)(COMM) No. 12/2017] (hereinafter the "HPL Judgment") had held that the Appealable Orders under Section 13 of the Commercial Courts Act, 2015 are 'restricted to those orders' which are specifically enumerated in Order 43 of CPC, 1908 and Section 37 of the Arbitration Act, i.e. the situations in (A) and (B) above only^[4].

Relevant Facts and arguments in Superon

Superon Schweisstechnik India Ltd. (hereinafter "Plaintiff/Respondent") filed a Civil Commercial Suit being CS(COMM) 665/2017 against D&H India Ltd. (hereinafter "Defendant/Appellant") seeking permanent injunction against the Defendant/Appellant from infringing the Trade Mark 'SUPERON' of the Plaintiff.

On 03.08.2018, the Plaintiff/Respondent filed an Application under Order VI, Rule 17 of the CPC, 1908 seeking certain amendments to amend its Plaint. Vide an Order dated 25.04.2019, the said Application of the Plaintiff/Respondent was allowed by the Ld. Joint Registrar (Judicial).

The Order dated 25.04.2019 was carried in Appeal by the Defendant/Appellant by way of the Statutory Appeal before the Ld. Single Judge on the Original Side of the Hon'ble Delhi High Court under Rule 5 in Chapter II of the Delhi High Court Rules (Original Side), 2018 (hereinafter "the 2018 Rules"). The said Appeal was dismissed by the Ld. Single Judge vide an Order dated 03.07.2019. Thus, the Order dated 03.07.2019 was assailed in Appeal by the Defendant/Appellant before the Division Bench of the Hon'ble Delhi High Court.

The Plaintiff/Respondent raised a Preliminary Objection before the Division Bench that in view of the HPL Judgment that the said Appeal was not maintainable inasmuch as the proviso to Section 13 (1A) of the Commercial Courts Act, operated to exclude the appellate jurisdiction, of the Division Bench of the Delhi High Court, over the decisions rendered by the learned Single Judge acting as a Commercial Court, in all cases, save and except those which found specific enumeration in Order XLIII of the CPC (viz Situation 'A' as above). It was further argued that following and adopting this decision, a Division Bench of this Hon'ble Court in 'Samsung Leasing Ltd. v Samsung Electronics Co. Limited' [FAO (OS) 315/2016, decided on 31.07.2017] (hereinafter the "Samsung Judgment") held that orders, passed by the learned Single Judge, exercising jurisdiction as a Commercial Court, adjudicating applications for amendment under Order VI Rule 17 of the CPC, were not appealable to the Division Bench, as orders passed on applications under Order VI Rule 17 were not among those which find enumeration in Order 43 of the CPC, 1908. It is to be noted that in the Samsung Judgment, the Order VI Rule 17 Application was itself decided by the Ld. Single Judge, and not by the Ld. Joint Registrar and then carried in Appeal before the Ld. Single Judge as in the case of Superon.

The Plaintiff/Respondent further argued that the Samsung Judgment, read with the Judgment of the Hon'ble Delhi High Court in 'Rahul Gupta v Pratap Singh' [206 (2014) DLT 188] (hereinafter the "Rahul Gupta Judgment") would further show that an Appeal against an Order passed under Order VI Rule 17 of CPC, 1908 would not be maintainable, inasmuch as the Rahul Gupta Judgment expressly holds that the Ld. Single Judges decide the Appeals against the Orders passed by the Ld. Joint Registrars in exercise of their 'Original' jurisdiction, rather than in exercise of their 'Appellate' jurisdiction.

Analysis and Findings of the Hon'ble Delhi High Court in Superon

Even though the Appeal was dismissed on merits, the Court over-ruled the objections of the Plaintiff/Respondent that the Appeal itself was not maintainable. A bench comprising Chief Justice D N Patel and Justice C Hari Shankar of the Court arrived at inter alia the following conclusions in relation to the scope of the Appellate Jurisdiction of the Commercial Courts under Section13 of the Commercial Courts Act, 2015^[5]-

1. The proviso to Section 13 (1A) cannot be read as limiting the right to appeal, conferred by Section 13 (1A). The said proviso merely states that, from orders passed by the Commercial Division of the High Court, as are specifically enumerated under Order XLIII of the CPC, an appeal would lie under Section 13 (1A). The proviso cannot be read as meaning that 'no appeal would lie in any other case', especially where the order under appeal has not been passed under the CPC, 1908 at all, but under Rule 5 in Chapter II of the 2018 Original Side Rules;
2. The judgements in HPL and Samsung Leasing Ltd do not apply, as they related to appeals, against orders passed by the learned Single Judge under one or the other provision of the CPC, 1908. In such circumstances, these decisions restricted the ambit of Section 13 (1A) of the Commercial Courts Act, by invoking Section 104 and Order XLIII of the CPC. The case of Superon being relatable to an order passed under Rule 5 in Chapter II of the 2018 Original Side Rules, the Hon'ble Court was not persuaded to follow the decisions in HPL and Samsung Leasing. Judgements rendered by courts, it is trite, are not to be read as analogous to Euclid's theorems, but have to be understood and applied in the light of the fact-situation, and the legal issue arising for consideration, in those cases;
3. The Original Side Rules of this Court (2018 Rules) have, therefore, their own individual identity, distinct and different from the CPC, 1908 and there is no justification for applying, to an order passed under Rule 5 in Chapter II of the 2018 Original Side Rules, the restraints contained in Section 104, or Order XLIII, of the CPC, insofar as the availability of a remedy of appeal, against such order, under Section 13(1A) of the Commercial Courts Act, is concerned;
4. The Rahul Gupta judgment does not make the Appeal not maintainable, which proceeds on the premise that the use of the word "appeal", in Rule 4 in Chapter II of the 1967 Original Side Rules – whereunder the order of the learned Single Judge had been passed in that case – was a "misnomer". The appeal before the Division Bench had, in that case, been filed under Section 10 of the Delhi High Courts Act. The said decision, irrespective of its correctness or otherwise, would not apply to the facts of the Superon case, as (a) the order impugned before us has been passed, not under Rule 4 in Chapter II of the 1967 Original Side Rules, but under Rule 5 in Chapter II of the 2018 Original Side Rules which, yet again, uses the word "appeal" and (b) the appeal, before us, lies, not under Section 10 of the Delhi High Court Act, but under Section 13 of the Commercial Courts Act, the range and sweep of which is far more expansive than that of Section 10 of the Delhi High Courts Act.

Thus, the Delhi High Court in the Superon case has expressly held that Section 13(1A) of the Commercial Courts Act, 2015 is an enabling, rather than a disabling provision, and which allows an aggrieved party to invoke Section 13, to appeal against the Orders passed under the situations (A), (B), (C) as enumerated above. The said decision allows an aggrieved party to now also approach the Commercial Appellate Division of the High Court to assail Orders and Judgments, which are not passed under CPC, 1908 (for example, the Orders/Judgments passed by the Commercial Courts under the Delhi High Court Rules, 2018).