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2017 (2) TMI 1543
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.... the hearing of this appeal, the respondents took a preliminary objection as to its maintainability. It was contended that the impugned order was not an appealable order specified in Order XLIII of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC'). It was further contended that this being an order passed by the Commercial Division of this High Court, an appeal therefrom was governed by Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as 'the said Act'). It was contended that the proviso to Section 13 (1) of the said Act limited appeals from orders to such orders which were specifically enumerated under Order XLIII CPC and Section 37 of the Arbitration and Conciliation Act, 1996. Reliance was also placed on Section 13(2) of the said Act which is a non-obstante provision specifying 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 the said Act. Re....
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....nst the decree of the Commercial Court. xxxx xxxx xxxx xxxx xxxx 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 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 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. xxxx xxxx xxxx xxxx xxxx 16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes.- (1) The provisions of the Code of Civil Procedure, 1908 shall, in their applicatio....
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....eal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:- xxxx xxxx xxxx xxxx xxxx (ff) an order under section 35A; (ffa) and order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be; (g) an order under section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules: xxxx xxxx xxxx xxxx xxxx (2) No appeal shall lie from any order passed in appeal under this section." "Order XLIII 1. Appeal 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 except where the procedure specified in rule 10A of Order VII has ....
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....ed order is not an appealable order under Order XLIII of the CPC. It was submitted that the proviso to Section 13(1) of the said Act is clearly applicable and it specifically provides that no appeal shall lie to a Commercial Appellate Division unless the impugned order is not specifically enumerated in Order XLIII CPC. 7. Furthermore, it was submitted that Section 13(2) of the said Act begins with a non-obstante clause of a very wide amplitude and it clearly provides that nothing contained in any law for the time being in force or Letters Patent of a High Court, would apply to appeals from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of the said Act. It was, therefore, contended that the appellants cannot even take the shelter of the Letters Patent or the Delhi High Court Act, 1966 since their operation has specifically been excluded by Section 13(2) of the said Act. The learned counsel for the respondent placed reliance on a Division Bench decision of this court in the case of Harmanprit Singh Sidhu v. Arcadia Shares & Stock Brokers Pvt. Ltd: FAO(OS) 136/2016, decided on 30.09.2016, wherein an appeal had been ....
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....ise than in accordance with the provisions of the Commercial Courts Act." (underlining added) 9. In the backdrop of the above decision, it was contended on behalf of the respondents, that the appellants would not even be able to take recourse to Section 10 of the Delhi High Court Act, 1966 to justify the filing of the present appeal. 10. It was further submitted that the Statement of Objects and Reasons of the said Act stipulates that the Act had been enacted for expeditious disposal of commercial disputes and one of the measures to ensure such expeditious disposal was by reducing the number of appeals against interlocutory orders passed by a Commercial Court or Commercial Division under the said Act. It was submitted that Section 13 of the said Act seeks to ensure that the objective behind the said Act was achieved and, therefore, appeals have been confined only from such orders that fall in the categories enumerated under Order XLIII of CPC and Section 37 of the Arbitration and Conciliation Act, 1996. It was reiterated that Section 13(2) of the said Act, which begins with a non-obstante clause, specifically excludes the applicability of the Letters Patent or any other la....
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.... restrict the meaning of the word 'judgment' as interpreted in Khimji's case (supra). It was submitted that even the Delhi High Court Act, 1966 uses the word 'judgment' without defining it and, therefore, it has to be construed in the wider context. 13. The learned counsel for the appellants further relied on a decision of the Supreme Court in the case of Arun Dev Upadhyaya v. Integrated Sales Service Limited and Another: [2016 (9) SCC 524]. It was submitted that in that case, the Supreme Court, after construing the provisions of Section 13(1) of the said Act held an appeal under Section 50(1)(b) of the Arbitration and Conciliation Act, 1996 to be maintainable, although this provision is not mentioned in the proviso to Section 13(1). Therefore, it was contended that the remedy of appeal under Section 10 of the Delhi High Court Act, 1996 is also available because it has neither been repealed nor amended and on parity of reasoning, the present appeal would be maintainable. 14. It was also submitted on behalf of the appellants that the language of Section 13(2) of the said Act is entirely different from the language of statutory provisions which seek to restr....
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....n the list of appealable orders even those orders, which were not enumerated in Order XLIII of CPC or Section 37 of the Arbitration and Conciliation Act, 1996. It was further submitted that Section 10 of the Delhi High Court Act, 1966 provides for a special statutory right of appeal. For the sake of convenience, we reproduce the said Section 10 hereunder:- "10. Powers of Judges.-(1) Where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by Sub-section (2) of section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court. (2) Subject to the provisions of Sub-section (1), the law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court of Punjab and with respect to all matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court of Delhi." (underlining added) 17. It was submitted that the Delhi High Court Act, 1966 would be 'the law for the time being in force' within the meaning of Section 104 o....
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....s distinction was made for good historical reasons and it had continued unabated, as we have noticed, through the consolidating Acts, and continued unaffected even through the last amendment of CPC in the year 2002. In the face of this body of evidence, it is difficult to accede to the contention of the appellant that the force of the non obstante clause is merely declaratory and not intended to operate as a declared exception to the general body of CPC." 19. It was further submitted that it was only if the different parts of the statute could not at all be read together harmoniously that the non-obstante clause would override the other provisions of the statute. It was further submitted that if the interpretation given by the respondents were to be accepted, this would result in a conflict between the provisions of Section 13 and 16 of the said Act. On the other hand, if the interpretation put forth by the appellants were to be accepted, there would be no conflict and both Sections would be able to co-exist harmoniously and, therefore, this interpretation ought to be preferred. It was also submitted that the decision of this court in Harmanprit Sidhu (supra) was also not contra....
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....anding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than the said Act. This clearly means that where the provisions for appeals are provided in the said Act, if there is any other provision for appeal in any other law for the time being in force which is inconsistent with what is provided in the said Act, the provisions for appeals in the said Act would have overriding effect. 25. Section 16 of the said Act is also important in this discussion. Sub-section (1) of Section 16 makes it clear that the provisions of the CPC shall, in their application to any suit in respect of a commercial dispute of a specified value, stands amended in the manner as specified in the Schedule to the said Act. Sub-section (2) makes it clear that the Commercial Division and the Commercial Court shall follow the provisions of the CPC, 1908, as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value. Sub-section (3) stipulates that where any provision of any rule of the jurisdictional High Court or any amendment to the CPC, by the ....
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....efined in Section 2(9) of the CPC, means the statement given by the judge on the grounds of a 'decree' or 'order'. It is, therefore, clear from the above definitions that a 'decree' and an 'order', as contemplated under the CPC, are two entirely different and distinct concepts. Every formal expression of any decision of a Civil Court which does not fall within the definition of a 'decree' is an 'order'. The word 'judgment' means neither a 'decree' nor an 'order' and it merely means the statement given by the judge on the grounds of a decree or order. In other words, 'judgment' is essentially a statement containing the reasoning behind the decree or the order. It is further pertinent to note that both decrees and orders are decisions. 27. The provisions of 'Appeals', as contained in the CPC, fall within Part-VII thereof. Sections 96 to 99A fall under the heading 'Appeals from original decrees'. Sections 100 to 103 fall under the heading 'Appeals from Appellate decrees' and Sections 104 to 106 fall under the heading 'Appeals from orders'. It is, therefore, clear that app....
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....s is clear from the fact that all appeals under the said Act have to be heard by the Commercial Appellate Division which, in terms of Section 5 thereof, has to comprise of Division Benches of a High Court. While in respect of disputes which are not commercial disputes of a specified value, an appeal to the High Court from any decree or order could be heard by a Single Judge of the High Court, an appeal from any decree or order of a Commercial Court would have to be heard by a Division Bench which forms part of the Commercial Appellate Division of the High Court. Moreover, in respect of disputes which are not covered by the said Act, the period of limitation for an appeal from any decree or order to a High Court is 90 days, in respect of commercial disputes of a specified value if a person is aggrieved by a decision of a Commercial Court, the appeal would have to be preferred before the Appellate Division of the High Court within a period of 60 days from the date of the decision. In case the decision appealed against is that of a Commercial Division of a High Court, the appeal before the Commercial Appellate Division of that High Court would also to be filed within 60 days. This can....
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....ofar 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 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. 31. We would also like to examine the scope and function of a 'proviso'. In CIT v. Indo-Mercantile Bank Ltd 1959 Supp (2) SCR 256, the Supreme Court held: - "Th....
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....bservations:- "10. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Surrey [(1880) 5 QBD 170 : 42 LT 128] (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha [AIR 1961 SC 1596] and Calcutta Tramways Co. Ltd. v. Corpn. of Calcutta [AIR 1965 SC 1728]), when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule..." 32. From the above, it is evident that ....
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....said Act itself provided for such an appeal. 35. 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 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. 36. 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. 37. The learned counsel for the appellants had submitted that if the arguments of the respondents were to be accepted then this would have grave consequences as aggrieved parties would be left remediless. It is well established that the rig....
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....nsel for the parties are as to the scope, ambit and meaning of the word "judgment" appearing in clause 15 of the letters patent of the Bombay High Court and corresponding clauses in the letters patent of other High Courts. We might mention here that the significance of the word "judgment" assumes a special importance in those High Courts which have ordinary civil jurisdiction depending on valuation of the suit or the action. These High Courts are Calcutta, Bombay, Madras as also Delhi and Jammu & Kashmir. The other High Courts do not have any ordinary civil jurisdiction but their original jurisdiction is confined only to a few causes like Probate and administration, admiralty and cases under Companies Act." (underlining added) 42. There was a conflict of decisions of various High Courts as to whether or not Section 104 CPC would apply to internal appeals in the High Court. This was resolved by the Supreme Court through its decision in Khimji's case (supra). The Supreme Court observed :- "26. Thus, a combined reading of the various provisions of the Code of Civil Procedure referred to above lead to the irresistible conclusion that Section 104 read with Order 43 Ru....
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....e to the Division Bench. On a parity of reasoning, therefore, Section 104 read with Order 43 Rule 1 expressly authorises and creates a forum for appeal against orders falling under various clauses of Order 43 Rule 1, to a larger Bench of the High Court without at all disturbing, interfering with or overriding the letters patent jurisdiction. There are a number of other Acts also which confer additional powers of appeal to a larger Bench within the High Court against the order of a trial Judge......" (underlining added) It is clear that one of the questions which arose for consideration was whether section 104 read with Order XLIII Rule 1 CPC would apply to internal appeals in the High Court. The Supreme Court held that it did. In other words, these provisions did not abridge, interfere or curb the powers conferred under clause 15 of the Letters Patent of the Bombay High Court. 43. The Supreme Court also agreed with the view of a full bench of the Calcutta High Court in Mathura Sundari Dassi v. Haran Chandra Saha AIR 1916 Cal 361 which was, inter alia, to the following effect:- "The effect of Section 104 is thus, not to take away a right of appeal given by clause 1....
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....In Khimji's case (supra), there was also a reference to a decision of the Rangoon High Court in re: Dayabhai Jiwandas (ILR 13 Rang 457) which was a decision of a Full Bench of that High Court. In that case, the opinion expressed was that in the Letters Patent of High Courts, the word "judgment" meant to be a decree in a suit by which the rights of the parties in issue in the suit were determined. The Supreme Court in Khimji's case (supra) disagreed with this view and observed that the said view was erroneous because it equated the word "judgment" with "decree" as used in the CPC, when, the words "judgment" and "decree" used in the Code could not form a safe basis to determine the definition of the word "judgment" in the Letters patent, particularly when the Letters Patent had deliberately dropped the word "decree" from "judgment". Agreeing with the view expressed in Mt. Shahzadi Begum v. Alak Nath and Others: AIR 1935 All 620, the Supreme Court observed as under:- "110. In Mt. Shahzadi Begam, v. Alak Nath AIR 1935 All 620 : 1935 ALJ 681 : 157 IC 347], Sulaiman, C.J., very rightly pointed out that as the letters patent were drafted long before even the Code of 1882 ....
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....r narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word "judgment" as used in clause 15 of the letters patent because the letters patent has advisedly not used the terms "order" or "decree" anywhere. The intention, therefore, of the givers of the letters patent was that the word "judgment" should receive a much wider and more liberal interpretation than the word "judgment" used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the letters patent. It seems to us that the word "judgment" has undoubtedly a concept of finality in a broader and not a narrower sense. ......" (underlining added) 47. 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 appe....
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....d its powers under the Letters Patent were recognised by Article 225 of the Constitution of India. It was further noted that the High Court could not be divested of its Letters Patent jurisdiction unless provided for expressly or by necessary intendment by some special statute. Moreover, if the pronouncement of the single Judge qualified as a "judgment", in the absence of any bar created by a statute either expressly or by necessary implication, it would be subject to appeal under the relevant clause of the Letters patent of the High Court. It is evident that the court considered that the intra-court appeal jurisdiction was derived by a High Court under the Charter or enactment by which it was established. The question that arises in the present case is whether an appeal filed against an order of a Commercial Division of the High Court before the Commercial Appellate Division of that High Court is one under Section 13(1) of the said Act or under a Letters Patent of a High Court or under any other law for the time being in force, including a provision such as Section 10 of the Delhi High Court Act, 1966 ? It is evident that Section 13(1) not only provides for a forum of appeal in re....
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....d under the said 1996 Act and, therefore, an appeal would be maintainable before the Division Bench. But, in the present case the impugned order is not appealable under the CPC. Therefore, the appeal would not be maintainable. It is clear that the view that has been taken by us does not, in any way, militate against the decision of the Supreme Court in Arun Dev Upadhyaya (supra). The said decision recognized the fact that Section 13 bars an appeal under the Letters patent and, consequently, under any other law for the time being in force unless an appeal was specifically provided under the said 1996 Act which, in the present case, would be relatable to the said Act and the CPC. It is clear that from the wordings used in Section 13 that insofar as orders are concerned, appeals shall lie only from such orders that are specifically enumerated under Order XLIII of CPC. Section 13(2) further fortifies the position that no appeal shall lie from any order or decree of a Commercial Division or a Commercial Court otherwise than in accordance with the provisions of this Act. 51. The learned counsel for the appellants had also relied on the decision of the Bombay High Court in Hubtown Limi....
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....could be construed as "a law for the time being in force" within the meaning of Section 104(1) of CPC, an appeal could lie from an order passed by a learned single Judge of this court before a Division Bench under Section 10 of the Delhi High Court Act, 1966 and since the said Section 10 uses the word 'judgment", it would have to be given the same meaning as ascribed to it in Khimji's case (supra). Consequently, an appeal would be maintainable under Section 10 of the Delhi High Court Act, 1966. We are unable to accept this contention for the simple reason that a provision such as the said Section 10 is expressly excluded by Section 13(2) of the said Act read with the proviso to Section 13(1) which specifically enumerates appealable orders to be those specified in Order XLIII CPC. 54. It was lastly contended that if the interpretation given by the respondents were to be accepted, there would be a conflict between the provisions of Sections 13 and 16 of the said Act and in such an eventuality, the rule of harmonious construction ought to be employed. We do not see as to how there would be a conflict between the provisions of Sections 13 and 16 if the interpretation advance....