TMI Blog2021 (9) TMI 1475X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code indicates the nature of the order which is appellable in certain cases and, in other cases, the order made in exercise of an authority conferred by the Code itself. The difference between the wording of, for example, subrules (a), (c) and (d) of Order XLIII Rule 1 of the Code, on the one hand, and sub-rules (f), (q), (r) and (s) of Order XLIII Rule 1 of the Code, on the other hand, is telling. While every order passed under the relevant provisions indicated in sub-rules (f), (q), (r) and (s) of Order XLIII Rule 1 of the Code is appellable, only those of a particular kind as indicated in sub-rules (a), (c) and (d) of Order XLIII Rule 1 of the Code are appellable. The obvious inference that is to be drawn is that it is the nature of the order that determines whether it would be appellable or not. There is no doubt, as the plaintiff suggests, that the trial court completely failed to construe the nature of the suit that the plaintiff herein instituted before the Bombay High Court. It is also evident that the trial court misread Section 35 of the Act of 2013 in holding that a suit under such provision should be filed against the company AND every other individual whom t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the contract with DHFL was recovered by the plaintiff in the Bombay suit, the plaintiff would not be entitled to any penny in the present suit, notwithstanding the fraudulent conduct of the defendants, since the plaintiff would have recovered its investment and would not have suffered any loss or damage as a result. The principle of comity of courts may not have been a relevant consideration since the natures of the two actions were completely different. There could also be no doubt that some of the defendants were within the jurisdiction of this court at the time of the institution of this suit and Clause 12 of the Letters Patent makes no distinction as to whether the place where the defendant carries on business has any nexus with the transaction which is subject-matter of the suit - On the basis of the averments made in the plaint, it cannot be said that no part of the plaintiff's cause of action had arisen within the jurisdiction of this court. Though Section 19 of the Code may not be applied to this court since the entirety of the jurisdiction of this court to receive a suit is found in Clause 12 of the Letters Patent, the place where the loss is suffered may be a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .27 of 2021 : Mr.Arun C.Mohan For 6th respondent in OSA (CAD) No.24 of 2021; 5th respondent in OSA (CAD) Nos.25 and 26 of 2021 : Mr.Ravindhran For 7th respondent in OSA (CAD) Nos.24 and 27 of 2021 and 6th respondent in OSA : Mr.R.Parthasarathy and Mr.Harshavardhan Ganesan (CAD) No.26 of 2021 For 8th respondent in OSA (CAD) No.24 of 2021; 8th respondent in OSA (CAD) Nos.25 and 26 of 2021; 1st respondent in OSA (CAD) No.27 of 2021 : Mr.Anirudh Krishnan assisted by Mr.Adarsh Subramanian and Mr.Shiva Krishnamurthy For 11th respondent in OSA (CAD) Nos.24, 25, 26 and 27 of 2021 : Mr.Akhil Bhansali for M/s.BFS Legal For 1st respondent in OSA No.230 of 2019 : Mr.R.Sathish Kumar for Mr.P.C.N.Raghupathy For 2nd respondent in OSA No.230 of 2019 : No appearance For respondents 6 to 10 in OSA (CAD) No.25 of 2021 : Service Awaited For 10th respondent in OSA (CAD) Nos.26 and 27 of 2021 : Addressee moved For the 1st respondent in OSA (CAD) Nos.29 and 30 of 2021 : Mr.K.Jagannathan For respondent 9 in OSA (CAD) Nos.24 and 27 of 2021; and 9th respondent in OSA (CAD) Nos.25 and 26 of 2021 : Mr.Rahul Balaji Ms.Madhu Preetha Elango and Ms.Disha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company being completely lost. The suit is said to be founded on the statutory tort recognised in Section 35 of the Companies Act, 2013. All the appeals are by the plaintiff. OSA (CAD) Nos.24, 25, 26 and 27 of 2021 are appeals against the same order dated April 29, 2021 revoking leave under Clause 12 of the Letters Patent on applications filed by different sets of defendants. By such order, the plaint was directed to be returned to the plaintiff for it to be carried to be filed in the Bombay High Court. 6. OSA (CAD) Nos.29 and 30 of 2021 arise out of a common order in another suit. The two appeals are directed against the same order dated April 19, 2021 by which the leave granted under Clause 12 of the Letters Patent was declined to be revoked and an application for rejecting the plaint under Order VII Rule 11 of the Code was dismissed. 7. Finally, OSA No.208 of 2021 is proposed against an order dated September 23, 2020 dismissing the defendant-appellant's application for condoning the delay in filing the written statement. Again, it is the appellant's contention that the relevant suit in this case was filed on the Original Side of this Court at a time before the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, indicates the specified value , where the floor limit is not ... less than three lakh rupees . But the pecuniary values at the High Court Commercial Division and elsewhere in a State may be specified by the State Government after consultation with the concerned High Court. 13. Chapter II of the said Act covers Sections 3 to 11 and provides for the constitution of Commercial Courts, Commercial Divisions of High Courts, Commercial Appellate Divisions and the jurisdiction of the Commercial Courts and Commercial Divisions. Section 8 of the said Act prohibits civil revisions against any interlocutory order of a Commercial Court, including on the issue of jurisdiction. Section 9 of the said Act provided for the transfer of a suit to the Commercial Court or Commercial Division in the event any counter-claim therein amounted to a commercial dispute of specified value. Such provision has been omitted by the amendment of 2018 upon a modified version thereof being incorporated in Section 12(1)(e) of the said Act. Section 10 of the said Act extends the jurisdiction of the Commercial Courts to arbitration matters as indicated therein. Section 11 of the said Act clarifies that if the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 35 and 35-A of the Code and several Orders of the Code up to Order XX. Two Appendices are also provided pertaining to verification of pleadings. 19. The Statement of Objects and Reasons pertaining to the said Act refers to the Commercial Division of High Courts Bill, 2009 that was introduced in and passed by the Lok Sabha on the recommendation of the 188th Report of the Law Commission and the matter being sent back by the Rajya Sabha for reconsideration by the Law Commission before the 253rd Report came to be published. Initially, an Ordinance came to be promulgated on October 23, 2015 before the Act was subsequently passed by the Parliament. 20. On the aspect of appellability under the said Act, it may be noticed that the draft Act that formed a part of the 253rd Report of the Law Commission suggested Sections 14 and 15 to be as follows: 14. Appeals from orders of Commercial Divisions and Commercial Courts (1)An appeal shall lie only 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (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. Section 8: 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 applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or order; ... (14) order means the formal expression of any decision of a Civil Court which is not a decree. 25. Prior to the establishment of the Commercial Division and Commercial Appellate Division in this court, intra-court appeals on the Original Side of this Chartered High Court would be governed by Clause 15 of the Letters Patent, 1865 and how the word judgment in such provision came to be judicially interpreted for almost a century and a half, including in the initial case of The Justices of Peace for Calcutta (8 BLR 433) emanating from the first Chartered High Court, Calcutta, and the exalted status conferred on such word by several Supreme Court judgments, including the veritable treatise on appellability in Shah Babulal Khimji [(1981) 4 SCC 8] and the more recent P.S.Sathappan [(2004) 11 SCC 672]. 26. It is ordinarily expected that the language used in a statute would be crafted to make it precise and unambiguous to the extent possible; and, most importantly, free from confusion. Words in a statute are assumed to have been used in their forensic sense and the key words of the provisions are also expected to adhere to the definitions of such wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provision. 31. Of the several grounds asserted to canvass the proposition that the appeal provision in its entirety does not curb the scope of appeal as already existing in the original civil jurisdiction of this court, it is the use of the word judgment in sub-sections (1) and (1A) of Section 13 that is first emphasised in the context of the meaning ascribed to such word by judicial pronouncements for a century and a half. The next ground that must be noticed is the absence of the word only in the proviso which governs both subsections (1) and (1A) of Section 13 of the Act. The third broad submission is in reading sub-section (2) in conformity with the preceding parts of the provision for a holistic and wide scope of appellability to be discovered therefrom. 32. The other major plank the least attractive of argument in support of the wide scope of appellability under the said Act pertains to the necessity to have a correction mechanism within the relevant High Court and the State instead of having to run to Delhi to invoke Article 136 of the Constitution. Several incidental aspects have also been touched upon that will be noticed in course of the discussion. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants assert that since the provisions of the Code have been made applicable to the said Act by virtue of Section 16 of the said Act, it is a given that appeals would lie against decrees in terms of Section 96 of the Code, which provision has not been amended by the said Act. The appellants also contend that it would defy reason, logic and common sense that appeals from interlocutory orders in suits covered by the said Act would be permissible, but appeals from decrees in such actions would not. 38. It is the same logic which is sought to be applied to the apparent prohibition under Section 13(2) of the said Act and its operation is confined to orders and decrees and said to not operate in respect of judicial pronouncements that may be considered as judgments. 39. These appellants first rely on a judgment reported at 2020 SCC OnLine Del 477 (D H India Ltd v. Superon Schweisstechnik India Ltd). In that case, an application for amending the plaint was filed under Order VI Rule 17 of the Code. The amendment sought was substantially allowed by the Joint Registrar (Judicial) of the Delhi High Court. An appeal against such order was carried to a Single Bench in accordance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions under Section 115 of the Code are fulfilled; if not, a petition under Article 227 of the Constitution may be carried to the High Court to correct the perceived error. Thus, there is a safety net that would cover all orders that are not appellable but are amenable to correction otherwise, at least at the level of the High Court. 58. When an order emanates in the High Court itself and no intra-court appeal is provided therefor, such an order may only have to be challenged before the Supreme Court. This is not an efficacious remedy in all cases as it may not be convenient to the aggrieved party to pursue such remedy. It is for such purpose that the provision for an intra-court appeal must be liberally construed for a correction mechanism to be provided within the High Court itself and to the extent the law permits. [Emphasis in original.] 41. The second set of appellants are aggrieved by an order dismissing an application for condoning the delay in filing the written statement and seeking leave to file the same. The first ground urged by such appellant in OSA No.208 of 2021 is that at the time that the suit was lodged in this court, the Commercial Division of this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Division Bench judgment of this court reported at (2019) 5 MLJ 479 (Magic Frames v. Radiance Media P. Ltd) is next cited. In that case, an application filed by the defendants to pass a summary judgment dismissing the suit without recording oral evidence was rejected by the trial court and the order carried in appeal. The Division Bench in that case found that the appeal was barred under Section 13(2) of the said Act, but it is evident from paragraph 29 of the report that such view was taken not because the appeal was not expressly maintainable under the said Act, but on the ground that the order impugned in that case could not be regarded to be a judgment within the meaning of the said word in Clause 15 of the Letters Patent. 45. An unreported judgment of this court rendered on February 5, 2020 in OSA Nos.13 to 15 of 2020 (Kapoor Imaging Private Limited v. Kodak (India) Private Limited) has next been placed, where a Division Bench of this court accepted the dictum in Rubinetterie Bresciane Bonomi Spa and entertained an appeal from an order rejecting the plaintiff's application for bringing additional documents at a stage after the issues had already been framed. 46. A j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demonstrate that the judgment in Hubtown Limited was distinguished therein and the dictum in Hubtown Limited not followed. In that case, the order impugned was the disposal of a preliminary issue of jurisdiction raised by some of the defendants in the suit under Section 9A of the Code. Section 9A is peculiar to the Bombay High Court and requires the issue of jurisdiction to be dealt with as a preliminary issue upon an objection as to jurisdiction being raised. Despite the judgment in Hubtown Limited being cited, it was held in Sigmarq Technologies Pvt. Ltd that the order impugned could not be regarded as a judgment within the meaning of the word as used in Clause 15 of the Letters Patent, as the issue as to territorial jurisdiction could even be raised in the appeal in the event the suit was decreed against the relevant defendants. The court also interpreted the judgment in Hubtown Limited and another Division Bench judgment of the same High Court reported at 2017 SCC OnLine Bom 360 (Smt. Sushila Singhania v. Bharat Hari Singhania) and observed as follows at paragraph 87 of the report: 87. ... Thus, it is apparent that the difference between the language in sub-section (1) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition to enforce a foreign award was rejected and did not provide for any appeal from a judgment enforcing a foreign award under the relevant provision, the appeal could not be maintained. It was such order that was carried to the Supreme Court. Paragraph 14 of the report is relevant for the present purpose: 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 alone are appeals that can be made to the Commercial Appellate Division of a High Court. 53. On behalf of the plaintiff in the same suit, a judgment reported at (2019) 5 MLJ 479 (Magic Frames v. Radiance Media P. Ltd) is cited for the acceptance therein by a Division Bench of this court that the said Act has enacted a time-bound mechanism to be followed and, to ensure the timelines, the right of appeal has been con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artered High Court in view of Order XLIX Rule 3 thereof. The plaintiff-appellants also insist that in view of Section 134 of the Trade Marks Act, 1999 and the plaintiffs carrying on business within the Ordinary Original Civil Jurisdiction of this court, this court had the jurisdiction to entertain, try and determine the suit. The plaintiffs rely on the plaint averments pertaining to territorial jurisdiction and the fact that the infringing goods were available to be sold and purchased within jurisdiction. The judgment and order impugned dated April 27, 2021 is criticised on divers grounds, particularly in the trial court not confining itself to the averments in the plaint or accepting the veracity thereof. Such plaintiffs assert that on an application in the nature of demurrer, the court has to proceed on the basis of the averments in the plaint to be true and correct. 56. By the order impugned dated March 29, 2021, a limited order of injunction was passed in favour of the plaintiffs by modifying the original order and confining the injunction to the pictorial representation of the defendant's packets as indicated. It is the same order that the defendant is up against in OSA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code as the plaint relating to the relevant suit has been returned for it to be filed before the Bombay High Court. 61. It has now to be assessed whether the appeals being OSA Nos.230 of 2019 and 208 of 2021, and OSA (CAD) Nos.3, 4, 29 and 30 of 2021 would be maintainable. 62. As noticed above, the additional issue that arises in OSA No.208 of 2021 is whether, by reason of such suit having been filed before the Commercial Division was established in this court, the right of appeal in such suit would be governed by the rights that subsisted prior to the establishment of the Commercial Division. 63. Notwithstanding the rather inappropriate wording of the only dedicated appeal provision in the said Act, the discussion must focus on whether the expression judgment or order used both in sub-sections (1) and (1A) of Section 13 thereof are affected by the perceived restrictive provisions in the proviso to such sub-sections or by the subsequent sub-section. 64. Apart from the parties herein, Mr.Sricharan Rangarajan, Advocate, has intervened to suggest that the scope of appeal has not been curtailed by the said Act or anything contained in Section 13 thereof. For a start, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found that the award was enforceable against one of the awarddebtors but not against the appellant before the Supreme Court or the other party, as the arbitral tribunal could not have passed any award against such parties. The award-holder appealed before the Division Bench, whereupon an objection on the ground of maintainability of the appeal was raised and the Division Bench held that the appeal was maintainable. A review petition was filed by citing Fuerst Day Lawson Ltd [(2011) 8 SCC 333] for the proposition that a Letters Patent appeal was not available in arbitration matters and even Section 13 of the said Act did not provide for an appeal in such a scenario. The review petition was dismissed. The Supreme Court held that to the extent that the Single Judge of the Bombay High Court had rejected the claim for enforcement of the award against two of the award-debtors, the appeal was clearly maintainable under Section 50(1)(b) of the Act of 1996. 67. Nothing in such judgment throws any light on the present discussion, since Section 50 of the Act of 1996 expressly provides for an appeal to lie from an order refusing to enforce a foreign award under Section 48 of the relevant Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also not necessary that appeals from the similar nature of orders are provided for in a solitary provision of a single statute or even in different provisions of a same statute. A ready example in such regard is the situation created by Clause 15 of the Letters Patent which provides for intra-court appeals in a host of cases where the orders of such nature passed in the district judiciary may not be appellable under the Code of Civil Procedure. The rule as recognised by the majority opinion in the Constitution Bench judgment in P.S.Sathappan is that unless an appeal permitted by the Letters Patent is expressly excluded by some other law, an appeal against an order permissible under the Letters Patent would lie. 70. The reference to this judgment begs the question. If the proviso to Sections 13(1) and (1A) of the said Act is seen to qualify and restrict the scope of appeal from orders, the effect of Section 13(2) of the said Act must then be seen to assess whether intracourt appeals permissible in this court before the Commercial Division was established would still be maintainable in the light of such provision. 71. The intervenor also suggests that the said Act, as am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent in the appeal contended that under Section 39(2) of the Arbitration Act, 1940 the appeal was prohibited. The matter was referred to a Full Bench of the High Court on the issue of the maintainability of the appeal. The Full Bench held that the appeal would lie. A Division Bench, thereafter, set aside the order under appeal against which the Union appealed to the Supreme Court. 74. The Supreme Court traced the history of the appeal provisions contained in the Code of Civil Procedure from the Code of 1877 through the Code of 1882 and its transformation to that of 1908, which included matters pertaining to arbitration. Upon the Act of 1940 coming into force, all matters pertaining to arbitration contained in the Code of 1908 were deleted therefrom as the Act of 1940 came to be regarded as the complete code in respect of all matters pertaining to arbitration. 75. The issue before the Supreme Court in Mohindra Supply Co. was whether an intra-court appeal under the applicable Letters Patent would lie in the High Court against an order passed by a Single Judge exercising appellate jurisdiction. The court accepted that such an appeal did lie under the Code of 1908, but, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of the legislation. It is in such light that the appeal provision in the said Act must also be seen. 78. There is no doubt that the principal purpose for carving out a separate procedure for commercial matters was to ensure that such matters were speedily disposed of. 79. Indeed, the pecuniary limit that was pegged much higher in the statute in its original form has been considerably reduced, subject to discretion of the State Governments in consultation with the relevant High Courts. Thus, there is an impetus given to expedite the process in all civil suits pertaining to commercial disputes. 80. It is evident that only so much of the procedure and even substantive provisions have been altered as was considered necessary to fast-track the process of final judgments being rendered in commercial disputes. It may also be noticed incidentally that the post-decree process of execution has not been altered in any manner or form by the said Act, except eliminating the right of appeal under the Letters Patent that applies to only a few of the 25 High Courts in the country. This could be because the nature of the decrees that are passed in commercial matters are not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Act , that may have led to a serious anomaly. Nonetheless, when the said Act professes to be the entire code pertaining to civil suits covering commercial disputes of specified value as defined, ideally, there ought to have been an express provision for an appeal from a decree therein. 83. In a different sense, the expression judgment or order used in sub-sections (1) and (1A) of Section 13 of the said Act may also be seen to include decrees therein; or else, the word judgment in such expression would be superfluous or meaningless. 84. The upshot of the discussion up to now is that an appeal under the said Act would lie against all decrees, except against those which are prohibited by the Code itself, and appeals would also lie under the said Act against certain orders. It is now left to discover what orders would be appellable under the said Act in the light of the appeal provision in Section 13 of the said Act, when it is reasonably and rationally read in the overall context of the said Act and its avowed purpose of expediting the process, particularly till the completion of the trial in civil suits pertaining to commercial disputes of the specified value as def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Act but defined in the Code would have the same meaning assigned to that word, the word judgment as used in the expression judgment or order in sub-sections (1) and (1A) of Section 13 of the Act may be seen to imply no more than an order or, the expression may be seen to compendiously refer to a decree or order, since a judgment, as understood in the context of the definition of such word in the Code, cannot be appellable. 88. At the same time, it must be remembered that there is always a caveat to a definition section which indicates that a defined word may carry a connotation other than as assigned to it by the definition, if the context so requires. It does not appear that the word judgment used in the said expression can be seen to be used in a completely different context for the definition assigned to such word in the Code to not be applicable to the use of the word in the relevant expression. 89. That takes the discussion to sub-section (2) of Section 13 of the said Act. In the absence of such provision, there may have been a case for accepting that the word judgment as used in the expression judgment or order in sub-sections (1) and (1A) of Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be viewed from another perspective. Though it is impermissible to hold that a proviso is altogether superfluous and unnecessary, an attempt may be made to see the result by imagining the proviso not to be in place. In such a scenario, what would be appellable under the said Act would be decrees, except to the extent as prohibited by the Code and notwithstanding appeals from decrees not being expressly provided by the said Act, and all orders except to the extent prohibited by sub-section (2) of the provision. In such a situation, the appeal provision, qua orders, would be vague since nothing would have been specified within the meaning of the expression in accordance with the provisions of this Act . 93. Thus, even if restrictive words like only or expressions like and no other are not read into or introduced in the relevant proviso, in the light of the constriction in the right of appeal as structured by sub-section (2) of Section 13 of the said Act, the _____________ restrictive words or expressions are necessarily implied in such proviso. In fine, therefore, a meaningful reading of the entirety of the appeal provision in Section 13 of the said Act would imply that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, held that in respect of an arbitration matter, the Act of 1996 would have primacy since such Act would be the special Act governing arbitration matters and even if the dispute was a commercial dispute of specified value, the Act of 2015 would be the general Act. As such, the Supreme Court held that the appeal carried to the High Court in that case was not maintainable since the right of appeal pertaining to an arbitration matter had to be found only in Section 37 of the Act of 1996 and the fact that the petition was returned to be presented elsewhere did not make the impugned order amenable to appeal under Order XLIII Rule 1(a) of the Code, since, strictly speaking, the order passed by the Gurugram Court could not be seen to be an order passed under Order VII Rule 10 of the Code. It is in such light that the Supreme Court overruled a line of cases where the High Court had found an independent right of appeal in an arbitration matter pertaining to a commercial dispute under Section 13 of the said Act, despite the right of appeal not being available under Section 37 of the Act of 1996. Thus, the judgment of the Delhi High Court reported at 2018 SCC OnLine Del 9338 (Antrix Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uits should be tried in the same court; but instead of transferring the suits from this court to the relevant court in Salem, required the suits in Salem to be transferred to this court for trial. It is such order that was sought to be appealed against. The Division Bench referred to Section 13 of the said Act and held, at paragraph 10 of the report, that the words mentioned in Section 13(1A) has (sic, have) been restricted to the extent provided under the proviso to Section 13(1) and 13(1A). However, the Division Bench went on to suggest that the expression used in the provision was judgment or order and as far as orders were concerned, the relevant proviso instructs that such orders must be appellable under Order XLIII of the Code. The court went on to hold that if the order impugned had to be considered purely as an order, it would not be appellable under Order XLIII of the Code. The court next considered whether the order impugned could be regarded as a judgment within the meaning of Clause 15 of the Letters Patent and held at paragraph 16 of the report that an order transferring a suit to the Original Side of this court was not a judgment within the meaning of Clause 15 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... implication since it is a special law for the concerned High Court. The Supreme Court recognised that the special right of appeal under the Letters Patent would be preserved unless the same was expressly excluded. Even the minority view in the judgment agreed that under Section 104 of the Code, the expression by any law for the time being in force saved Letters Patent appeals in Chartered High Courts, but disagreed with the majority on the ground that by virtue of sub-section (2) of the same provision, Letters Patent appeals would be excluded only when the order sought to be appealed against was by itself an appellate order. 103. Despite the Supreme Court recognising that Letters Patent appeals remain unaffected by Section 104 of the Code, it also recognised that it was possible to exclude Letters Patent appeals, but only by express provision. It is, possibly, in the light of such dictum that Section 13(2) of the said Act specifically refers to the Letters Patent, though the non-obstante clause therein may otherwise have had the same effect even if Letters Patent had not been expressly included therein. 104. Accordingly, OSA (CAD) No.3 of 2021 is found to be not maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctober 23, 2015. As a consequence, the scope of appellability in suits in respect of commercial disputes of specified value filed on or after such date would be governed by the provisions of the said Act. 107. It is now that the appeals which are maintainable that need to be addressed on merits. A common ground taken in the two sets of appeals in different suits assailing orders by which the plaints relating to the relevant suits have been returned is that Order VII Rule 10 of the Code does not apply to a Chartered High Court in view of Order XLIX Rule 3 thereof. However, it is too late in the day, at least in this court, to contend that a plaint filed in this court cannot be returned in view of the judgment reported at AIR 1953 Mad 897 (R.P. O'Connor v. P.G.Sampath Kumar). The Division Bench held in that case that although Order VII Rule 10 of the Code did not apply to Chartered High Courts by virtue of Order XLIX Rule 3 thereof, a Chartered High Court has the requisite authority under Section 151 of the Code to make an order directing the return of the plaint, if it was necessary for the ends of justice or to prevent the abuse of the process of court. 108. Indeed, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house. What also appears to have counted with the trial court was that some stray sales of the alleged infringing product was shown to have taken place within jurisdiction almost in a manner of a trap sale or a stage-managed sale, where a friendly shop-owner is arranged by the plaintiffs to show the sale of the alleged infringing product from a shop within jurisdiction to create jurisdiction. 112. The impugned judgment refers to the view expressed by the Supreme Court on Section 134 of the Act of 1999 in the judgment reported at (2015) 10 SCC 161 (Indian Performing Rights Society Limited v. Sanjay Dalia). The Supreme Court noticed the word include in Section 134(2) of the Act of 1999 and held that under Section 134 of the Act of 1999, the place where the plaintiff resides or carries on business would be an additional place and not an exclusive place to institute a trade mark infringement action. The Supreme Court proceeded to observe that if the cause of action, wholly or in part arises at the principal or ordinary place where the plaintiff resides or carries on business or works for gain or, in case of a corporation, where its principal office or head office or registered of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived and tailor-made only to invoke the territorial jurisdiction of this court to, possibly, harass the defendants. The order impugned returning the plaint for it to be filed before the appropriate court in Namakkal or Salem does not call for any interference. 115. Both the plaintiffs and the defendants are in appeal against the order of injunction passed in the same suit. The original order of injunction has been modified and continued despite the plaint being returned to be filed elsewhere. The defendants claim that the transactions relied upon are contrived and, as such, no injunction should have been issued. The plaintiffs, on the other hand, suggest that the original order of injunction should have been maintained and no case was made out for the modification thereof. The impugned order of injunction was made on March 29, 2021. Initially, the court had granted an exparte injunction on March 12, 2021 limited in duration till March 26, 2021. Such interim injunction restrained the defendants from using the mark VARALAKSHMI in connection with their products. The defendants applied for vacating the injunction. The first plaintiff and the second defendant are brothers and a fam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue. Since the court found that certain device marks were registered in favour of the plaintiffs, the court confined the injunction to the device marks and the defendants cannot have any legitimate grievance in respect thereof, since the injunction is confined in respect of the pictorial representations as indicated in the order impugned. On the basis of the material before the trial court, the order impugned appears to be justified. At the very least, the discretion exercised cannot be seen to be perverse. In an intra-court appeal, unless the order impugned is seen to be founded on erroneous principles or there is perverse exercise of discretion, the appellate court is loath to interfere with the order impugned. 120. For the reasons aforesaid, the judgment and order dated March 29, 2021 does not call for any interference, either at the instance of the plaintiffs or at the instance of the defendants. Though the order of injunction as modified does not appear to be limited by time, since the suit has to be carried to another court, the injunction will now continue for a period of six weeks from date or earlier order of the receiving court. 121. However, it will be open to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f also asserts that the cause of action in the present suit is different from the cause of action in the commercial summary suit filed before the Bombay High Court. 124. The plaintiff refers to Section 35 of the Act of 2013 that provides for civil liability for mis-statements in a prospectus. The substance of the plaintiff's grievance in the suit appears to be that the defendant Nos.1 to 11 had presented a rosy picture as to the financial position of DHFL and thereby induced the plaintiff to invest in the said non-convertible debenture issue with knowledge that the financial projections made were false and misleading. Sub-section (1) of Section 35 of the Act of 2013 is relevant for the present purpose: 35. Civil liability for mis-statements in prospectus.- (1) Where a person has subscribed for securities of a company acting on any statement included, or the inclusion or omission of any matter, in the prospectus which is misleading and has sustained any loss or damage as a consequence thereof, the company and every person who- (a) is a director of the company at the time of the issue of the prospectus; (b) has authorised himself to be named and is named in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its investment from DHFL. Further, the plaintiff points out that in December, 2019 the Reserve Bank of India carried the case of DHFL to the NCLT and, by the first week of December, 2019, an order was passed by the NCLT appointing a resolution professional and a moratorium in terms of Section 14 of the Code of 2016 fell into place. Section 14(1)(a) of the Code of 2016 prohibits the institution of suits and the continuation of pending suits or proceedings against the corporate debtor. In such circumstances, DHFL could not have been impleaded by the plaintiff in the present suit till the moratorium was lifted. The plaintiff also refers to Section 74(2) of the Code of 2016. Under such provision, any creditor of a corporate debtor violating the provisions of Section 14 of the Code of 2016 is visited with the punishment of imprisonment or with fine that may extend up to Rs.1 crore or with both. The plaintiff suggests that at the time the applications for revocation of the leave or rejection of the plaint were taken up for hearing, the plaintiff's Bombay suit against DHFL was as good as over. 128. According to the plaintiff, the judgment and order impugned proceeded on a complete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in the securities covered by the prospectus. 131. It is the further contention of the plaintiff that the plaint makes out a case that the prospectus pertaining to the debenture issue of DHFL, in which the plaintiff subscribed, had been issued with intent to defraud the applicants and, as such, by virtue of Section 35(3) of the Act of 2013 every person referred to in subsection (1) shall be personally responsible, without any limitation of liability, for all or any of the losses or damages that may have been incurred by any person who subscribed to the securities on the basis of such prospectus. The plaintiff submits that the case made out in the plaint is that the plaintiff had suffered loss and damages by subscribing to the debenture issue on the basis of the prospectus that had been issued by the defendants with intent to defraud prospective applicants. 132. A further ground urged by the plaintiff is that the suit is maintainable in this court by virtue of Section 19 of the Code as it is a suit for compensation for wrong done to the plaintiff within the meaning of such provision. The plaintiff points out that Section 120 of the Code makes certain rules inapplicable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he summary suit was not entertained. The court observed that what had traditionally been considered to be appellable orders under Clause 15 of the Letters Patent applicable to this court would no longer be appellable under Section 13(1A) of the said Act if such matter was not covered by Order XLIII of the Code. 136. The next judgment cited is reported at AIR 1951 Mad 93 (V.Ramamirtham v. Rama Film Service), where the Full Bench considered the jurisdiction of this court to receive suits under Clause 12 of the Letters Patent, which does not throw much light on the present discussion. 137. Another judgment of this court reported at 2011-5-L.W. 838 (The Uttar Pradesh Cricket Association v. The Board of Control of Cricket in India) has been brought for the observation therein at paragraph 13 of the report that the expression defendant occurring in the third limb of Clause 12 of the Letters Patent should be interpreted to mean all the defendants. Again, such authority may not be relevant in the present context since the present suit was not carried to this court on the basis of all the defendants dwelling or carrying on business or personally working for gain within the territori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t stand on the pinhead of the sliver of its alleged cause of action that is said to have arisen within the jurisdiction of this court. 143. A judgment reported at (1997) 6 SCC 370 (Manju Bhatia v. New Delhi Municipal Council) is placed for the discussion at paragraph 9 thereof on what amounts to tortious liability and the distinction between a claim under a contract and a claim in tort. 144. A Full Bench judgment of the Calcutta High Court reported at 2009 1 Cal LJ 199 (Chainrup Sampatram v. Punjab Sind Bank) has been brought for the discussion on Clause 12 of the Letters Patent and the exercise thereof in a Chartered High Court. It may be noticed in brief that in a suit for land, it is the situs of the land, in whole or in part, that is the deciding factor as to the venue of the suit. In other suits, the jurisdiction of the court may be invoked if the defendant or all the defendants reside or work for gain or carry on business within the territorial jurisdiction of the relevant Chartered High Court at the time of the institution of the suit. In such case, no leave under Clause 12 of the Letters Patent would be necessary. A suit may also be instituted by taking recourse to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poration of U.P. Ltd), where the court found little difference between suit or proceeding in Section 22(1) of the erstwhile Sick Industrial Companies (Special Provisions) Act, 1985. The court observed that there was only a semantic difference. It is the same analogy that is sought to be applied in this case in respect of the expression judgment or order in Section 13(1A) of the said Act. However, the reference in the present context is irrelevant since an order returning a plaint is clearly appellable under Order XLIII Rule 1(a) of the Code. 147. A Single Bench judgment of this court reported at (2007) 5 MLJ 303 (South Indian Bank Ltd v. M.M.T.C. Ltd) has been placed for the same proposition as noticed in an earlier judgment that all the defendants, at the time of the institution of the suit, must reside or carry on business or work for gain within jurisdiction for the suit to be founded on such limb of Clause 12 of the Letters Patent without reference to the situs of the cause of action or obtaining leave of the court under Clause 12 of the Letters Patent. 148. A judgment reported at 1932 LW (7) 279 (Sri Raja Sobhanadri Appa Rao Bahadur v. Sri Raja Parthasarathi Appa Rao ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iently available in Mumbai and that the documents required to be brought for the trial were also in Mumbai. Ordinarily, the plaintiff, as dominus litis, has the right to choose the forum and, as long as the forum has the authority to receive the action, unless an overwhelming case of inconvenience is made out, the choice of the plaintiff ought to be respected. In any event, in the modern day and age, where transportation and communication pose no problem at all (the lockdown period during the pandemic excluded!), grounds of inconvenience would have to be taken with more than a ladle-full of salt. 152. Two other judgments have been relied upon by the plaintiff and need to be referred to for completeness, though such judgments may not throw any light on the considerations relevant herein. In the judgment reported 2021 SCC OnLine SC 152 (P.Mohanraj v. Shah Brothers Ispat Pvt. Ltd), the court held, at paragraph 103 of the report, that though the corporate debtor would be covered by the moratorium provision in Section 14 of the Code of 2016, the persons mentioned in Section 141(1) and (2) of the Negotiable Instruments Act, 1881 may be proceeded against. It is the same analogy which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed in exercise of the authority under Section 151 of the Code was not appellable. Indeed, what was ultimately held was that the nature of the order that was passed was not appellable since no appeal therefor was provided. This follows the basic principle that the right of appeal may only be conferred by statute and neither does it inhere in any party nor may it be otherwise inferred. In the other judgment relied upon in this context, Shiv Shakti Coop. Housing Society, the discussion was on the amendment to Section 115 of the Code and the right to apply for revision being curtailed thereby. Nothing in either judgment cited on such count would suggest that an appeal against an order for return of a plaint and, thereby, involving a degree of finality in closing the doors of that forum to the plaintiff would not be appellable, despite the nature of such order permitting an appeal to be carried thereunder in terms of Order XLIII Rule 1(a) of the Code. 157. There is no doubt, as the plaintiff suggests, that the trial court completely failed to construe the nature of the suit that the plaintiff herein instituted before the Bombay High Court. It is also evident that the trial cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be held prohibited in view of Section 14(1)(a) of the Insolvency and Bankruptcy Code, 2016 and inviting the Court to give a finding as to whether a statutory right can also be prohibited by the provisions under Section 14(1)(a) of the Insolvency and Bankruptcy Code, 2016. 161. The reasoning in the quoted paragraph is unacceptable. The plaintiff had not instituted the Bombay suit against DHFL under Section 35 of the Act of 2013. By the time the plaintiff instituted the suit in this court, by virtue of the moratorium and, thereafter, the approval of the resolution plan, DHFL could no longer be sued. It cannot be appreciated as to what challenge is referred to in the quoted paragraph when Section 14 is also noticed that provides for a moratorium against any action being instituted against a corporate debtor in certain circumstances. It is true that Section 35 of the Act of 2013 gives a statutory right, but nothing in Section 35 of the Act of 2013 makes it absolute. The operation of most legal provisions are subject to other provisions and the fact that even a suit under Section 35 of the Act of 2013 may not be instituted against a corporate-debtor in view of Section 14 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so a rather inapposite reference to Section 19 of the Contract Act, 1872 and a discussion spread over several paragraphs thereafter which is contrary to the factual matrix. At paragraph 127 of the judgment, the plaintiff's claim is understood by the trial court to be that it subscribed to the debenture issue, based on misrepresentations in the prospectus. At paragraph 128 of the judgment it is observed that the Bombay suit was instituted on the assertion that the plaintiff was mislead by the prospectus to invest in the debentures. To repeat, the Bombay suit was not based on any fraud or misrepresentation on the part of DHFL. The claim therein was confined to the agreement between the parties under which certain payments were to be made on a periodic basis. An event of default had occurred and such event of default entitled the plaintiff to immediately demand the balance amount due. Such was the claim of the plaintiff before the Bombay High Court and not as perceived in the impugned judgment. 166. There is a further discussion at paragraphs 130 to 138 of the judgment which does not appear to be appropriate in the context of the considerations that ought to have weighed with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Letters Patent makes no distinction as to whether the place where the defendant carries on business has any nexus with the transaction which is subject-matter of the suit. Indeed, the entirety of the cause of action in a suit may have arisen in place A , but if sole defendant P resides within the jurisdiction of court B , court B has full authority to entertain, try and determine the suit against such defendant. 168. With respect, the entire focus of the trial court was flawed, though it is possible to contend that, ideally, this suit should have been instituted before the Bombay High Court. 169. On the basis of the averments made in the plaint, it cannot be said that no part of the plaintiff's cause of action had arisen within the jurisdiction of this court. Though Section 19 of the Code may not be applied to this court since the entirety of the jurisdiction of this court to receive a suit is found in Clause 12 of the Letters Patent, the place where the loss is suffered may be a part of the cause of action. For a company, as the plaintiff herein, the loss is ultimately suffered at the registered office which is within jurisdiction. 170. As to whether witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the Bombay High Court, but that does not imply that this court would not have jurisdiction or that the jurisdiction of this court has been improperly invoked by the plaintiff in lodging the suit here. 173. As a consequence, the appeals being OSA (CAD) No.3 of 2021, OSA (CAD) No.4 of 2021, OSA (CAD) No.29 of 2021, OSA (CAD) No.30 of 2021 and OSA No.230 of 2019 and OSA No.208 of 2021 are dismissed as not maintainable. The grounds taken in the relevant applications out of which OSA (CAD) No.3 of 2021 and OSA (CAD) No.4 of 2021 arise may be canvassed before the transferee court. The plaint pertaining to C.S.No.91 of 2021 may now be presented before the appropriate court within four weeks of the date of the return of the plaint. 174. OSA (CAD) No.1 is dismissed. OSA (CAD) No.2 and OSA (CAD) No.19 of 2021 are disposed of without interfering with the judgment and order under appeal, but with the minor modification as to the duration of the injunction. 175. OSA (CAD) No.24 of 2021, OSA (CAD) No.25 of 2021, OSA (CAD) No.26 of 2021 and OSA (CAD) No.27 of 2021 are allowed and the impugned judgment and order dated April 29, 2021 set aside. 176. There will be no order as to costs ..... 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