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TMI Blog2021 (9) TMI 1475X X X X Extracts X X X X X X X X Extracts X X X X ..... C.Mohan For the appellant in OSA (CAD) No.19 of 2021 : Mr.Lakshmi Kumaran For the appellant in OSA (CAD) Nos.24 to 27 of 2021 : Mr.Nithyaesh Natraj For the appellants in OSA(CAD) Nos.29 and 30 of 2021 : Mr.Vijay Narayan Senior Advocate for Mr.P.Giridharan For the appellant OSA No. 208 of 2021 : Mr.N.L.Rajah Senior Advocate for M/s.Aditya Reddy For 1st respondent in OSA (CAD) Nos.1 and 2 of 2021 : Mr.Lakshmi Kumaran For 2nd respondent in OSA (CAD) Nos.1 and 2 of 2021 : Mr.Arun C.Mohan For respondents 1 to 5 in OSA (CAD) No.3 of 2021 : Mr.AR.L.Sundaresan Senior Advocate for M/s.Suhrith Parthasarathy For respondents 1 to 5 in OSA (CAD) No.4 of 2021 : Mr.AR.L.Sundaresan Senior Advocate for M/s.Arun Karthik Mohan For respondents 1 to 5 in OSA (CAD) No.19 of 2021 : Mr.AR.L.Sundaresan Senior Advocate for M/s.Suhrith Parthasarathy For 1st respondent in OSA (CAD) No.24 of 2021; 7th respondent in OSA (CAD) No.25 of 2021; 7th respondent in OSA (CAD) No.26 of 2021; 8th respondent in OSA (CAD) No.27 of 2021 : Mr.Rohan K.George For respondents 2 to 4 in OSA (CAD) Nos.24, 25 and 27 of 2021; respondents 1 to 3 in OSA (CAD) No.26 of 2021 : Mr.A.Abdul Hameed for M/s.AAV Partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mercial Division in accordance with the said Act. 4. OSA (CAD) Nos.1, 2, 3, 4 and 19 of 2021 arise out of the same suit which may loosely be seen as a trademark infringement and passing-off action. Two of the appeals are by the plaintiffs and the three others by two of the defendants, one of the defendants having filed two appeals. OSA (CAD) No.1 of 2021 is a proposed appeal against an order dated April 27, 2021 returning the plaint for it to be filed elsewhere. OSA (CAD) No.2 of 2021 is an appeal against an order dated March 29, 2021 by which the injunction initially granted in the suit was modified. OSA (CAD) No. 3 of 2021 is proposed against an order dated April 27, 2021 refusing to reject the plaint under Order VII Rule 11 of the Code. OSA (CAD) No.4 of 2021 is a proposed appeal against that part of the order dated April 27, 2021 which refused to strike off the relevant defendant from the array of parties under Order I Rule 10 of the Code. OSA (CAD) No.19 of 2021 is against the order dated March 29, 2021 by which the application filed by the appellant for vacating the interim injunction was only dismissed. 5. OSA (CAD) Nos.24, 25, 26 and 27 of 2021 all arise out of a suit for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms, but also to project a much needed reform in the system to attract foreign investment in this country, particularly to those wary of the tardy judicial process here. Apart from case management measures being required to be undertaken under the said Act, Section 4(2) of the said Act instructs that Chief Justices of High Courts "shall nominate such Judges of the High Court who have experience in dealing with commercial disputes to be Judges of the Commercial Division." Similarly, under Section 3(3) of the said Act "persons having experience in dealing with commercial disputes" will be appointed to man Commercial Courts either at the level of the District Judge or a court below the level of a District Judge. 11. The 253rd Report of the Law Commission of India, published early in 2015, commended the enactment which was initially styled as the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, before being rechristened by its shorter present name by an amendment of 2018. 12. Most of the definition provision in Section 2 of the said Act is taken up in defining what would amount to a commercial dispute. Section 2(1)(c) of the said Act d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a suit in respect of a commercial dispute of a Specified Value." 17. Chapter VII of the said Act contains the miscellaneous provisions that range from the collection and disclosure of data by Commercial Courts and Commercial Divisions in Section 17 to the power of the High Courts to issue directions in Section 18 and the usual provisions of rule-making authority; removal of difficulties; and, repeal and savings. There are also provisions requiring the State Government to provide necessary infrastructure for Commercial Courts and Commercial Divisions and for establishing necessary facilities for training and continuous education of Judges who may be appointed to the Commercial Courts and Commercial Divisions, including the appellate fora. Such final Chapter of the said Act spanning from Section 17 to Section 23 includes Section 21, which gives the said Act overriding effect: "21. Act to have overriding effect Save as otherwise provided, the provisions of this Act shall have effect, notwithstanding 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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such provision may suggest: Pre-amended Section 13: "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 (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." Present Section 13: "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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the said Act, but not defined therein, would carry the same meanings as assigned to them by the Code and the Indian Evidence Act, 1872. 24. The words "decree", "judgment" and "order" are defined thus in the Code: "2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,- ... (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final; ... (9) "judgment" means the statement given by the Judge on the grounds of a decree or order; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individual suits can all be comprehensively dealt with. Two major questions of law arise: whether and to what extent has the scope of an intra-court appeal in a Chartered High Court been curbed by the appeal provision in the said Act; and, whether the appeal provision in the said Act would govern suits instituted prior to the Commercial Division being established in this Chartered High Court. 30. On the scope of appellability, several of the appellants or would-be appellants exhort that nothing in the appeal provision in the said Act can be seen to whittle down the scope of appellability as ordinarily understood in the exercise of the ordinary original civil jurisdiction of this court as the width and generality of sub-section (1A), which is relevant here, is not truncated by the proviso thereto in the absence of any word or expression of restriction appearing in the proviso. In the same vein, it is contended that sub-section (2) would have no impact on sub-section (1A) of Section 13 because sub-section (2) recognises the right of appeal conferred by the said Act and such right is of the widest import and amplitude as indicated in sub-section (1A) of the provision. 31. Of the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons (1) and (1A) of Section 13 of the said Act, the submission is that such provision merely indicates certain orders that would be appellable and the proviso cannot be understood to mandate or imply that no appeal would lie against a judicial pronouncement that can be considered as a judgment. Again, such submission has been adopted or repeated by the other appellants and particular emphasis has been laid on the fact that there are no restrictive words used in the proviso like "only" or "not from any other order". 36. In effect, it is suggested by the appellants that since the words "judgment" and "order" have been used with a disjunctive "or" in between, the word "orders" in the proviso must be seen to be confined in its reference only to the word "order" appearing both in sub-sections (1) and (1A) of Section 13 of the said Act and the proviso cannot be seen to apply to or affect the word "judgment" used in the preceding substantive part of the provision. 37. As to no appeal being specifically provided for against a decree in Section 13 of the said Act, notwithstanding the heading of the section incorporating the word "decrees", the appellants assert that since the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case, allows us to so legislate. To our mind, therefore, sub-section (1A) of Section 13 of the Commercial Courts Act allows appeals to be preferred against all judgements and orders of the Commercial Division of the High Court, to the Commercial Appellate Division thereof, and the proviso, to the said subsection merely clarifies that, in the case of orders specifically enumerated in Order XLIII of the CPC, such appeals shall lie." [Emphasis in original.] 40. The next judgment placed by the first lot of appellants is rendered by a Full Bench of this Court and reported at (2021) 2 MLJ 561 (The District Collector v. N.Udayappan). The principal issue referred to the Full Bench pertained to the maintainability of an appeal against an order rejecting a review petition. The following passage from the judgment has been placed, which may not be relevant in the context of the appellability issue that has arisen herein: "57. The view expressed here is also in larger public interest and to avoid the manifest miscarriage of justice. When an order governed by the Code is not appellable, a revision may lie therefrom if the conditions under Section 115 of the Code are fulfilled; if not, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rikapati Veeraya (AIR 1957 SC 540). This appellant also suggests that, in any event, the appeal would be maintainable under the said Act since nothing in Section 13 thereof prohibits the same. The submission in such regard is as made by the first lot of appellants and is buttressed by several further judgments that have been placed. 43. In the judgment reported at 2016 SCC OnLine Bom 9019 (Hubtown Limited v. IDBI Trusteeship Service Limited), a Division Bench of the Bombay High Court considered Section 13 of the said Act prior to such provision being amended in 2018. The appeal provision in Section 13 of the said Act contained then the word "decision", which has now been replaced by the expression "judgment or order", in the material part of such provision. In such context, the Division Bench opined that "decision ... includes judgment/order passed by the Commercial Division/Court" and went on to add that the appellate court "may or may not entertain appeal against the order or interlocutory order, in view of proviso to Section 13(1) (but) filing of Appeal under Section 13, in our view, cannot be occluded." 44. A Division Bench judgment of this court reported at (2019) 5 MLJ 479 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he extension would be granted for the mere asking and despite the defendant not making out any case as to the sufficiency of the cause that prevented the defendant from filing the written statement within time. 49. The plaintiff's submission is also without prejudice to the contention that the appeal is not maintainable under the said Act. The plaintiff asserts that the suit was not filed at a time when the said Act had not been enacted or had not come into operation. The plaintiff maintains that merely because the Commercial Division was established in this court later, it would not imply that a suit filed earlier, when the said Act had already come into operation, would be governed by the Code and not by the said Act, despite the automatic transfer of the suit to the Commercial Division in view of the nature of the dispute and the value thereof. 50. The plaintiff in the suit from which OSA (CAD) Nos.29 and 30 of 2021 has been filed refers to a judgment of the Division Bench of the Bombay High Court reported at 2017 SCC OnLine Bom 9191 (Sigmarq Technologies Pvt. Ltd v. Manugrah India Limited) to demonstrate that the judgment in Hubtown Limited was distinguished therein and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the matter on the basis of the pre-amended appeal provision in Section 13 of the said Act. The issue that arose in that case was whether an appeal, which was not maintainable under Section 50 of the Arbitration and Conciliation Act, 1996, would nonetheless be maintainable under Section 13(1) of the said Act as it stood prior to its 2018 amendment. Upon proceedings being launched under Section 48 of the Act of 1996 before a court in Gandhidham-Kutch, an application was filed before the High Court of Gujarat for transfer of the proceedings to the High Court. The petition was transferred to the High Court and the objections raised by the appellant in resisting enforcement of the foreign award were repelled by the Commercial Division of the High Court of Gujarat. An appeal was preferred under the said Act, which was dismissed on the ground that the said Act did not provide any additional right of appeal which was not otherwise available to the appellant under the provisions of the Act of 1996. The High Court opined that since Section 50 of the Act of 1996 only provided for an appeal in case the petition to enforce a foreign award was rejected and did not provide for any appeal from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings in all suits pending on the date of commencement of Commercial Courts Act, subject however to the test they must be 'judgments' within the meaning of Clause 15 thereof." (Paragraph 14 of Rubinetterie Bresciane Bonomi Spa) "To sum it up: (a) A right of appeal under Clause 15 of the Letters Patent is available from all Orders passed in any proceedings in any suit pending on the date of commencement of Commercial Courts Act." (Paragraph 19 of Rubinetterie Bresciane Bonomi Spa) 55. The next lot of appellants are the two sets of parties in an infringement and passing-off action. OSA (CAD) No.1 of 2021 is against an order returning the plaint. OSA (CAD) No.2 of 2021 is against an order passed on an injunction application and OSA (CAD) No.19 of 2021 is the defendant's appeal against the injunction that has been continued despite the return of the plaint. The contention of the plaintiff-appellants in OSA (CAD) No.1 of 2021 is that a plaint filed in this Chartered High Court could not have been returned since Order VII Rule 10 of the Code does not apply to a Chartered High Court in view of Order XLIX Rule 3 thereof. The plaintiff-appellants also insist that in view of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been sought to the effect that the plaintiff's packaging of its product does not amount to infringing the defendant's get-up or packaging. 59. At this stage, it is necessary to notice which of the appeals would clearly be maintainable notwithstanding the apparently restricted scope of appeal in Section 13 of the said Act. 60. OSA (CAD) No.1 of 2021, which is directed against an order returning the plaint, would be maintainable under Order XLIII Rule 1(a) of the Code as, by the order impugned, the plaint pertaining to the suit has been returned for it to be filed elsewhere. OSA (CAD) No.2 of 2021 would also be maintainable since the order impugned is an order of injunction and an appeal from such order is provided under sub-rule (r) of Order XLIII Rule 1 of the Code. For the same reason, the defendant's appeal against the same order of injunction as in OSA (CAD) No.2 of 2021 will be maintainable in OSA (CAD) No.19 of 2021. The four appeals, OSA (CAD) Nos.24 of 2021, 25 of 2021, 26 of 2021 and 27 of 2021, would lie under Order XLIII Rule 1(a) of the Code as the plaint relating to the relevant suit has been returned for it to be filed before the Bombay High Court. 61. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Clause 15 of the Letters Patent. The intervenor suggests to the court that the word "order" in the expression "judgment or order" is not covered by the proviso to Section 13(1) and (1A); but such word "order" is covered by the reference to arbitration matters in Section 13(2) of the said Act. In other words, he submits that the word "orders" in the said proviso covers, on the one hand, orders passed in suits which may be considered as judgment within the meaning of Clause 15 of the Letters Patent; and, on the other hand, orders passed in arbitration matters which are covered by Section 37 of the Act of 1996. 66. The intervenor refers to a judgment reported at (2016) 9 SCC 524 (Arun Dev Upadhyaya v. Integrated Sales Service Limited). In that case, an award passed in favour of the first respondent before the Supreme Court found such first respondent entitled to money from the appellant before the Supreme Court and from two other parties. In the first respondent's proceedings for enforcement of the award, a Single Judge of the Bombay High Court found that the award was enforceable against one of the awarddebtors but not against the appellant before the Supreme Court or the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as carried to the Supreme Court. Upon referring to the provisions of the said Act, as it stood then, and the Act of 1996, the Supreme Court observed that, in view of the dictum in Fuerst Day Lawson Ltd and the Act of 1996 being a self-contained code, the provision of Section 13(1) of the said Act, as it stood then, "being a general provision vis-a-vis arbitration relating to appeals arising out of commercial disputes, would obviously not apply to cases covered by Section 50 of the Arbitration Act." (Paragraph 20 of the report). 69. A Division Bench judgment of the Calcutta High Court reported at 2017 Cri LJ 4775 (Laxmi Narayan Udyog Limited v. Omendra Kumar Chowdhury) has been brought by the intervenor for the legal principle enunciated at paragraph 28 of the report: "29. An appeal, as is elementary, is the creature of a statute and a party to any proceedings does not have any inherent right to prefer an appeal against any order that such party may be aggrieved by or dissatisfied with, unless there is a specific provision in such regard. It 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has also drawn the attention of the court to the famous judgment reported at AIR 1962 SC 256 (Union of India v. Mohindra Supply Co.), though such judgment detracts from the wide scope of appellability that the intervenor otherwise canvasses. In the case of Mohindra Supply Co., disputes arising under a contract were referred to arbitration. The award was filed in the court of the Subordinate Judge, First Class, Delhi, whereupon the award-debtor, the then Governor- General of India in Council, applied for setting aside the award. The order refusing to set aside the award was carried to the Lahore High Court by way of an appeal. After the dominions of India and Pakistan were set up, the matter was transferred to the Circuit Bench of the East Punjab High Court at Delhi. The award was set aside. An appeal was preferred under Clause 10 of the Letters Patent applicable to the High Court of Lahore, which, by the High Court (Punjab) Order, 1947, applied to the East Punjab High Court. A point of maintainability of such appeal was raised as the 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 Ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m an appellate order." [Emphasis in original] 76. The fundamental tenets of statutory interpretation instruct that attention should be paid to what has been said as also to what has not been said, so that a construction which requires additional words to be read into a provision or a construction that renders certain words meaningless may be avoided. However, the rule is subject to exceptions though words cannot be read into a statute unless it is absolutely necessary to do so. 77. At the same time, high authorities instruct that the object of the legislation has to be borne in mind and the occasion on which the words are used and the object that is endeavored to be attained by the provision or the legislation ought also to be kept in mind. Courts will refuse to be bound by the letter of the provision when it frustrates the patent purpose of the statute, as the expressions used in a statute should ordinarily be understood in a sense in which they best harmonise with the object of the statute and which effectuate the purpose 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e read into the said Act despite it not expressly providing for an appeal from a decree. There is also a reference to "an appeal against the decree of the Commercial Court" at the end of Section 8 of the said Act, which points to the fact that the said Act permits an appeal from a decree though neither Section 8 nor Section 13 thereof can be said to expressly confer such right. 82. As noticed earlier, the recommendation by the Law Commission bifurcated the appeal provision: one against orders and the other against decrees; and the form in which the Bill was taken to the Parliament dropped the suggested provision pertaining to appeals from decrees. In a sense, the conscious exclusion of such express provision must be seen to be justified in the use of the expression "otherwise than in accordance with the provisions of this Act" in the last limb of Section 13(2) of the said Act. If such expression had used the words "as expressly provided in this Act" instead of "otherwise than in accordance with the provisions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a proviso on the enactment. To repeat, the apparently opposing principles being: when the words of the enactment are clear, the proviso may not be read to detract therefrom; and, if the enactment appears to be ambiguous, the proviso may be used as a tool to resolve the ambiguity. At any rate, a proviso may not be seen as a surplusage, in the sense that the proviso would have no impact on the operation of the enactment. 86. The Code permits appeals only against decrees and certain orders. By definition, an order cannot be regarded to be a decree or a decree an order, in terms of the Code. The word "judgment" is only the statement given by the Judge, according to its definition in the Code, in support of the conclusion which is reflected in the decree or the order. In other words, any adjudication conducted under the Code will result in either a decree or an order. Such an exercise may not result in any third possibility. 87. Since Section 2(2) of the said Act indicates that any word not defined in the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding provision in Section 21 of the said Act would prohibit appeals against any judicial pronouncement otherwise than in accordance with the provisions of the said Act. Indeed, the expression "or Letters Patent of a High Court" may have been used by way of abundant caution in the context of the line of cases culminating in P.S.Sathappan, though the nonobstante clause without such expression may have carried the same impact. 91. It is thus that one needs to return to the proviso to subsections (1) and (1A) of Section 13 of the said Act to understand whether the restrictions which ought to be implied therein would be permissible or not. The context required a discussion on subsection (2) of Section 13 of the said Act before returning to the proviso, since such proviso appears to be the bridge between the substance of the enactment in sub-sections (1) and (1A) of Section 13 of the said Act and the substance of the prohibition or restriction imposed by sub-section (2) thereof. 92. The matter may 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 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Act, most of them have been referred to in the preceding discussion. Four other judgments on the issue of appellability need also to be noticed. In the judgment reported at (2020) 4 SCC 234 (BGS SGS Soma JV v. NHPC Limited), the Supreme Court relied on the observation at paragraphs 13 and 14 of the report in Kandla Export Corporation and opined that Section 13 of the said Act must be construed in accordance with the object sought to be achieved by the said Act and any construction of Section 13 of the said Act, which leads to further delay, instead of the expeditious conclusion of the lis, should be eschewed. In that case, a petition under Section 34 of the 1996 Act was retuned by the Special Commercial Court in Gurugram for the presentation thereof in the proper court having jurisdiction in New Delhi. The respondent before the Supreme Court challenged the order before the High Court of Punjab and Haryana, which held that the appeal was maintainable. The Supreme Court, thereafter, 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 disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment is that if it is possible, in the interest of justice, to read down negative words and make for exceptions, the absence of negative words in the proviso to sub-sections (1) and (1A) of Section 13 of the said Act should guide the court to interpret such provision as being permissive of appeals rather than restricting the scope of appellability. 98. A recent judgment of this court reported at 2020 (3) CTC 461 (Sri Narasu's Coffee Company Pvt. Ltd v. Narasu's Saarathy Enterprises Pvt. Ltd) has been cited by one of the respondents in the appeals arising out of the return of the plaint in the suit for damages. In that case, the would-be appellant before the Division Bench of this court had applied for transfer of certain suits pending on the Original Side of this Court to a Commercial Court in Salem to be tried along with the pending suits in the Salem court. The Single Bench that took up the application agreed that in order to avoid conflicting judgments all the suits 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e specified value. 101. However banal or clichéd it may sound, it bears repetition that an appeal is a creature of the statute. Judicial precedents - Judge-made laws - do not confer any right of appeal; only statutes do. Judicial precedents merely interpret statutes to ascertain whether there is a right of appeal in a particular situation. As a statute may confer a right, a subsequent statute may abridge the same or even take away the right. The said Act and Section 13 thereof must be seen in such light. 102. It is also necessary, for completeness, to notice the contrary philosophy in P.S.Sathappan where the majority opinion was that Section 104(1) of the Code specifically saves appeals under the Letters Patent and the bar under Section 104(2) of the Code does not apply thereto. Indeed, the majority opinion relied on the judgment in Shah Babulal Khimji to hold that the Letters Patent "is not any subordinate piece of legislation" and "Letters Patent cannot be excluded by 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 expressl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this court, it is evident from the Tamil Nadu Government Gazette (Extraordinary) published on November 29, 2017 that the Commercial Division of the High Court of Judicature at Madras was set up on and with effect from the date of the publication of the notification in the said gazette. However, the objection as to maintainability of the suit may be raised by the defendant at the trial. 106. Though OSA No.208 of 2021 was filed in this court on or about November 10, 2017 and prior to the Commercial Division in this court being set up, in view of the previous Division Bench judgment of this court in Magic Frames that the appeal provision under Section 13 of the said Act would not apply only to suits that had been instituted prior to the date of commencement of the said Act, the fact that the suit from which OSA No.208 of 2021 arises, was filed a few days before the Commercial Division was established in this court, will make no difference. The said Act came into force on October 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the jurisdiction of this Court ... not sufficient to confer jurisdiction upon this court if the 'connecting factor principle' is applied." 110. The court noticed that four out of the five plaintiffs resided at Mallur in Namakkal District and the fifth plaintiff also had its registered office at Mallur. The first defendant had its registered office in Salem and the second defendant also resided in Salem. According to the trial court, the products of both the plaintiffs and the defendants were manufactured outside the jurisdiction of this court and the marketing of such products, which, according to the trial court, was a chain of events, also commenced outside the jurisdiction of this court. 111. What appears to have weighed with the trial court in this case is that the branch office of one of the plaintiffs was shown to have been within jurisdiction for the purpose of attracting Section 134 of the Trade Marks Act, 1999, though it was a residential 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue." 114. On a reading of the plaint, it does not appear that the subject-matter of the suit has any real connection with Chennai. In fact, the residential premises within jurisdiction, which is shown to be the branch office of one of the plaintiffs, began with its first purported transaction and the document in such regard has been relied upon to try and suggest that a part of the cause of action had arisen within jurisdiction. On the basis of what is evident on a meaningful reading of the plaint, it would be clear that the transactions relied upon for the purpose of demonstrating that a part of the cause of action had arisen within were all contrived 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint" could only be maintained, since the packaging material produced by the defendants were quite dissimilar to the packaging material attributed to the defendants in the plaint. 118. The trial court noticed that there were previous disputes even before the formal separation of the businesses of the two brothers in the use of the word mark "VARALAKSHMI". It is in such circumstances that the initial injunction came to be modified by the impugned order, though the plaintiffs were given liberty to incorporate fresh pleadings and claim reliefs and interlocutory orders on the basis thereof. 119. There is an element of discretion available at the interlocutory stage and once the court perceives that there is a possibility of confusion, in the sense that a person seeking to purchase the plaintiffs' product may be misled by looking at the defendants' product and thinking the same to be from the plaintiffs' stable, an injunction would 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 inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013 upon the substantial investment of the plaintiff of Rs.200 crore in a debenture issue, pertaining to a company that has not been impleaded in this suit, being completely lost. At paragraph 123 of the plaint, it is alleged that the "suit has been filed on the fraud and deceit perpetrated inter alia by the Defendant No.1 to 11." The immediate preceding paragraph in the plaint discloses that the plaintiff had filed a commercial suit before the Bombay High Court against Dewan Housing Finance Limited (DHFL) for the recovery of the amount due in respect of non-convertible debentures in DHFL that had been invested in by the plaintiff. Paragraph 122 of the plaint also reveals that the continuation of the proceedings in the summary suit instituted in Bombay had been prohibited in terms of Section 14(1)(a) of the Insolvency and Bankruptcy Code, 2016 by an order dated December 3, 2019 passed by the National Company Law Tribunal. The plaintiff 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 lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code as, according to the plaintiff, DHFL could not have had any defence to the claim, since the clause in the agreement made DHFL liable to repay the entire amount of investment and interest upon any event of default taking place and the event of default was undisputable as DHFL had failed to make the first tranche of payment in terms of the relevant agreement. 126. The plaintiff says that DHFL was the subject-matter of insolvency proceedings before the National Company Law Tribunal and only an insignificant fraction of the colossal debts due from DHFL to its secured creditors had been realised for repayment. Other creditors like the plaintiff herein have, according to the plaintiff, been left completely in the lurch. 127. In the present suit, DHFL has not been impleaded. At any rate, a resolution plan pertaining to DHFL has been approved by the NCLT. The plaintiff can no longer expect the refund of 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 ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gencies that had rated the debenture issue so high that the plaintiff was induced to invest therein; the eighth, ninth and tenth defendants, who were the auditors of the company at the time of the issue or within a proximate period prior to the debenture issue; and, the eleventh defendant, who was the debenture trustee. According to the plaintiff, all such persons are liable under Section 35 of the Act of 2013. The plaintiff submits, on a reading of Section 35 of the Act of 2013, that such provision makes the directors of the relevant company who have authorised themselves to be named in the prospectus, the promoters of the company, the persons who authorise the issue of the prospectus, and the experts whose statements are included in the prospectus, all individually liable to pay compensation to every person who has sustained loss or damage upon acting on any statement in the prospectus or subscribing 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Radha Kissen Chamria) has been cited to contend that since Order VII Rule 10 of the Code does not apply to this High Court, the power exercised by the trial court to return the plaint must be seen to be upon invoking Section 151 of the Code. At paragraph 15 of the reported case, the Supreme Court observed that an order under Section 151 simpliciter would not be appellable. The court reasoned that only certain specific orders mentioned in Section 104 and Order XLIII Rule 1 of the Code would be appellable "and no appeal lies from any other orders (vide Section 105 CPC)." 135. A judgment of this court reported at AIR 2021 Mad 209 (Sambandh Finserve Pvt. Ltd v. Vivriti Capital Private Limited) is next cited, where the restricted scope of appellability under Section 13 of the said Act was noticed and an attempted appeal in a commercial suit from an order granting conditional leave to defend the 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 XLI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the prayer for leave under Clause 12 of the Letters Patent may have been, when the court granted the leave, it was the leave to institute the suit in this court. 141. The defendants next rely on a judgment reported at (2003) 6 SCC 659 (Shiv Shakti Coop. Housing Society v. Swaraj Developers and others) for the proposition that a right of appeal is statutory and it does not inhere in any person. Such proposition is placed in the context that the authority exercised to return the plaint in this case is under Section 151 of the Code and no appeal would lie from such an order. 142. A Division Bench judgment of this court reported at 2002 (1) CTC 134 (Parameswari Veluchamy v. T.R.Jayaraman) has been carried and paragraph 12 therefrom placed for the allegory that, just as it has been observed in the reported case, the plaintiff was trying to make its elephantine claim in the suit 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 liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt of Clause 12 of the Letters Patent. In that case, an action for defamation was instituted in this court, though the impugned publication had been made only in the Trichy edition of a Tamil newspaper and only one of the defendants had a place of business within the jurisdiction of this court. Though Section 19 of the Code is referred to in the judgment, it does not form any part of the ratio decidendi, as the Division Bench held that since a part of the cause of action of the plaintiff had arisen within jurisdiction and leave had been sought under Clause 12 of the Letters Patent for the institution of the suit, the finding rendered by the trial court that this court had no jurisdiction to entertain the suit was erroneous. 146. The next judgment brought by the defendants is reported at (2003) 4 SCC 305 (Kailash Nath Agarwal v. Pradeshiya Industrial and Investment Corporation 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 respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inclusion or omission of any matter in the prospectus." Surely, nothing in any law confers SEBI, the market watchdog, the authority to receive a suit. Further, the provision makes a distinction between "A suit" and "any other action". 151. A judgment reported at 113 CWN 379 (Secretary, Department of Atomic Energy, Government of India v The Controller General of Patents, Designs and Trademarks) has been placed for the principle of forum conveniens discussed therein in the context of a petition under Article 226 of the Constitution of India. However, on facts, none of the defendants had made out a case of overwhelming inconvenience before the trial court that could have excited the trial court to deny the plaintiff's natural choice of a forum. The grounds in the relevant applications were vague and general, to the effect that witnesses may be more conveniently 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 156. In the judgment of Keshardeo Chamria, the discussion pertained to a completely different kind of order - restoring or refusing to restore execution proceedings - and there was agreement all round that an appeal passed 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 inhe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Order XXXVII of the Code as a summary action founded on the contract between the plaintiff and DHFL qua the repayment of the amount invested by way of debentures. It is trite law that a claim in damages founded on the fraudulent conduct of the defendant or defendants can scarcely be instituted under Order XXXVII of the Code. 160. There is sufficient basis to the plaintiff's contention that the impugned judgment is perverse. It may do well to notice some of the paragraphs from the judgment, particularly paragraph 117: "117. It would have been an appreciable legal stand if the plaintiff had instituted the suit at Mumbai impleading the DHFL as the first defendant and claiming a right to impead DHFL as a defendant in view of the Section 35 of the Companies Act 2013 and throwing an open challenge to anyone to seek to declare the suit to 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 plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... induced into making on the basis of the false statements and dishonest representations contained in the prospectus relating to such issue. As a consequence, the plaintiff initiated an action for recovery of the money from the concerned company itself and, subsequently, instituted the present suit for the loss and damage that the plaintiff suffered as a result of the perceived fraudulent and dishonest representations of the defendants herein. Surely, if the entire amount due to the plaintiff under 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. 165. There is also 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. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venience may be made out; or any form of prohibition whether in law or by agreement may be cited; or even the principle of comity of courts may be alluded to, among others. However, a court already in receipt of an action cannot shoo away the plaintiff lightly on vague and general grounds of inconvenience, particularly since the law gives the plaintiff the right to choose the forum. In the present matter, no case of inconvenience was made out by the any of the defendants for the trial court to give any credence thereto. 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. 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 entertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abandon his chosen forum, which may otherwise have authority to receive the suit, and directed to go Mumbai to file the suit on the ground that a large number of documents, more readily available in Mumbai, may have to be brought at the trial. 172. For the reasons aforesaid, the judgment and order impugned dated April 29, 2021 cannot be sustained and none of the grounds indicated therein is acceptable for the plaintiff herein to be shown the door and required to carry the suit to the Bombay High Court. What may not have been noticed in the impugned judgment is that the Bombay suit is no more worth the paper it is printed on and if the plaintiff has to pursue any action to recover any part of its investment, it is the present action. Again, it must be conceded that the natural forum for this action may have been 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.20 ..... 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