Calcutta High Court: In an appeal an against the order dismissing appellant’s applications for amendment of the written statement and leave to adduce further evidence, a division bench comprising of Biswaroop Chowdhury and I. P. Mukerji,* JJ., dismissed the appeals on the ground of maintainability and held that the appellant had no right of appeal from the impugned order as it was passed by a court exercising commercial jurisdiction, and the Commercial Courts Act, 2015 (Commercial Courts Act) expressly excluded appeals not covered by Section 13.
Brief Facts
In the instant matter, the appellant, initially the defendant in the suit, made two applications during the proceedings, one for amending the written statement and the other for leave to adduce further evidence by recalling a witness. Both applications were dismissed by a single-judge bench. Aggrieved by the impugned order dismissing the applications, the preferred the present appeal challenging the same.
The appellant argued that since the suit was originally instituted as an ordinary suit before the enactment of the Commercial Courts Act, the right of appeal under Clause 15 of the Letters Patent was preserved despite its transfer to the Commercial Division. It was further contended that the right of appeal is a substantive right vested in a litigant on the date of institution of the original action and cannot be taken away retrospectively unless expressly provided for by the statute. On the other hand, the respondent argued that the impugned order was not appealable under Section 13 of the Commercial Courts Act, which only allows specified appeals in commercial matters.
Moot Point
Whether an appeal lies from an order passed by a court exercising commercial jurisdiction under the Commercial Courts Act, when the suit was initially filed as an ordinary suit prior to its transfer to the commercial division?
Legal Principles Applied
Preservation of Rights: The principle that a right of appeal, though statutory and procedural, vests in a litigant on the date of the institution of the original action, and unless expressly taken away, all rights prevailing on that date continue to apply.
Legislative Intent: Section 21 of the Commercial Courts Act provides that the Act shall have over-riding effect, notwithstanding anything inconsistent in any other law. Thus, the Act takes away any right of appeal before the transfer of a suit to the commercial court and applies its provisions post-transfer.
Appealability under Section 13: Section 13 of the Commercial Courts Act specifies the orders from which appeals lie in commercial matters. It states that appeals shall only lie from those judgments, decrees, and orders provided therein and from no other.
Court’s Decision
The Court held that under the Commercial Courts Act, an appeal does not lie from an order passed by a court exercising commercial jurisdiction, as the Act expressly excludes other laws, including the Letters Patent, from providing for additional rights of appeal. The Court asserted that the Act applies to suits transferred to the commercial court, thereby taking away any pre-existing rights of appeal.
“…provisions of the said Act that it expressly takes away any right of appeal whether it is considered substantive or procedural in a litigant before transfer of a suit to the commercial court and that after a suit is transferred to the commercial court, the provisions of the said Act applies to it. Those Sections take away procedural rights as well.”
The Court upheld the respondent’s objection regarding the maintainability of the appeal. The Court dismissed the appeals with liberty to pursue other available remedies, and the court did not delve into the merits of the matter, keeping them open.
[Sabri Properties (P) Ltd. v. Frostees Exports (India) (P) Ltd., 2024 SCC OnLine Cal 2530, order dated 15-03-2024]
*Judgment by Justice I. P. Mukerji
Advocates who appeared in this case :
Mr. Haradhan Banerjee Mr. Sital Chakraborty, Ms. Susmita Nath, Counsel for the Appellants
Mr. Sabyasachi Chowdhury, Mr. Rajarshi Dutta, Mr. Sayantan Bose, Ms. Ankita Chowdhury, Counsel for the Respondent
Commercial Courts Act being a statute which is creation of Constitution cannot take away Constructional remedy.
In such cases where provision of appeal is not made under Order 43 of CPC and Section 13 of Commercial Courts Act, there is still a remedy of challenging the arbitrary order in Writ jurisdiction.