Vijayendra Bajpai, S/o. S. S. Bajpai v. Ajay Tiwari S/o. N. P. Tiwari
2023-03-27
NAGESH BHEEMAPAKA, P.NAVEEN RAO
body2023
DigiLaw.ai
JUDGMENT : P.Naveen Rao, J. This appeal is preferred challenging the order dated 17.10.2022 passed in I.A.No.84 of 2022 in COS No.31 of 2019 by the Special Judge for Trial and Disposal of Commercial Disputes, Ranga Reddy District at L.B.Nagar. By this order, the learned trial Judge dismissed I.A.No.84 of 2022 filed under Order VII Rule 11 of Code of Civil Procedure. 2. When the appeal was preferred the registry raised objection on maintainability of the appeal. 3. Learned counsel appearing for the appellant submitted reply by placing reliance on Sections 13 and 8 of the Commercial Courts Act, 2015 (for short the ‘Act, 2015’). Not satisfied with the explanation offered, the matter was placed before this Court. 4. This Court having prima-facie looked into the provisions in Section 8 and 13 of the Act, 2015, over-ruled the office objection by reserving right to the respondent to raise objection on maintainability of the appeal. 5. The respondent filed counter affidavit and learned counsel for the respondent raised preliminary objection on the maintainability of appeal. 6. According to learned Counsel Smt Manjari S. Ganu, in view of the provisions contained in Section 13 read with Section 8 of the Act, 2015, no appeal is maintainable against an order passed under Order VII Rule 11 CPC rejecting the application to reject the plaint. 7. Learned counsel for the appellant sought to contend that on a reading of Section 8 of the Act, 2015, it is apparent that if a person is aggrieved by an interlocutory order of the trial Court, appeal is maintainable and therefore, the present appeal is validly filed. 8. Sections 8 and 13 of the Act, 2015 read as under : “Section 8 : Bar against revision application or petition against an interlocutory order :- Notwithstanding anything contained in any other law for the time being in force, no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, and any such challenge, subject to the provisions of Section 13, shall be raised only in an appeal against the decree of the Commercial Court.
Section 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. (1-A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original 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.” 9. Though reading in isolation, it appears as if Section 13 (1-A) is wider in scope and envisages that against any order of Commercial Court appeal can be filed, but the scope of Section 13 (1-A) is constrained by proviso appended to Sub-Section (1-A). While Section 1-A provides remedy in the form of appeal against any judgment or order passed by the Commercial Court at the level of District Judge or Commercial Division of the High Court to the Commercial Appellate Division of the High Court, the proviso appended to Section 13 restrict the scope of application of Section 1-A. The proviso clearly holds that no appeal shall lie from orders passed by the Commercial Division or a Commercial Court that are not specifically enumerated under Order XLIII of CPC. Order XLIII of CPC does not provide remedy of appeal against rejection of an application filed under Order VII Rule 11 of CPC praying to reject the plaint. 10.
Order XLIII of CPC does not provide remedy of appeal against rejection of an application filed under Order VII Rule 11 of CPC praying to reject the plaint. 10. Coming back to Section 8, it prohibits availing remedy in the form of Revision or petition against any interlocutory order of the Commercial Court and envisages availing the remedy of appeal against the decree under Section 13. In other words, Section 8 prohibits availing remedy of Revision or petition against interlocutory orders passed by the Commercial Court. Section 8 of the Act, 2015 clearly envisages that availing remedy of appeal would be subject to provision under Section 13. At the same time, on a careful reading of Section 13 (1-A) it is clear that availing the remedy of appeal is also restricted. 11. On a cumulative reading of Sections 8 and 13 it is apparent that remedy of appeal is not available against the order of Commercial Court in an application filed under Order VII Rule 11 CPC. 12. The scope of Sections 13 and 8 of the Act, 2015 are explained by the Hon’ble Supreme Court in Kandla Export Corporation and Another Vs OCI Corporation and another, (2018) 14 Supreme Court Cases 715, and held as under : “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., 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.
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, 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, (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, 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, 1946 AC 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 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 along are appeals that can be made to the Commercial Appellate Division of a High Court.” 13. Having regard to the above discussion, the Commercial Court Appeal is not maintainable. It is accordingly dismissed. However, it is open to the appellant to avail appropriate remedy as available in law, if so advised, against the order of Commercial Court made in I.A.No.84 of 2022 in COS No.31 of 2018. Pending miscellaneous applications, if any, shall stand closed.