TMI Blog2017 (2) TMI 1543X X X X Extracts X X X X X X X X Extracts X X X X ..... rt Act, 1966) is barred under Section 13 of the said Act, unless an appeal was specifically provided under the CPC. In that case, the court went on to hold that such an appeal was provided under the said 1996 Act and, therefore, an appeal would be maintainable before the Division Bench. But, in the present case the impugned order is not appealable under the CPC. Therefore, the appeal would not be maintainable. It is clear that the view that has been taken does not, in any way, militate against the decision of the Supreme Court in Arun Dev Upadhyaya [ 2016 (9) TMI 1610 - SUPREME COURT] . The said decision recognized the fact that Section 13 bars an appeal under the Letters patent and, consequently, under any other law for the time being in force unless an appeal was specifically provided under the said 1996 Act which, in the present case, would be relatable to the said Act and the CPC. It is clear that from the wordings used in Section 13 that insofar as orders are concerned, appeals shall lie only from such orders that are specifically enumerated under Order XLIII of CPC. Section 13(2) further fortifies the position that no appeal shall lie from any order or decree of a Commerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pealable order specified in Order XLIII of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC'). It was further contended that this being an order passed by the Commercial Division of this High Court, an appeal therefrom was governed by Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as 'the said Act'). It was contended that the proviso to Section 13 (1) of the said Act limited appeals from orders to such orders which were specifically enumerated under Order XLIII CPC and Section 37 of the Arbitration and Conciliation Act, 1996. Reliance was also placed on Section 13(2) of the said Act which is a non-obstante provision specifying that notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of the said Act. Relying upon these provisions, it was contended that the present appeal was not maintainable. 3. On the other hand, the appellants took the stand that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Commercial Court or Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of judgment or order, as the case may be: Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996. (2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act. xxxx xxxx xxxx xxxx xxxx 16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes.- (1) The provisions of the Code of Civil Procedure, 1908 shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule. (2) The Commercial Division and Commercial Court shall follow the provisions of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the nature referred to in section 91 or section 92, as the case may be; (g) an order under section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules: xxxx xxxx xxxx xxxx xxxx (2) No appeal shall lie from any order passed in appeal under this section. Order XLIII 1. Appeal from orders.-An appeal shall lie from the following orders under the provisions of section 104, namely:- (a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court except where the procedure specified in rule 10A of Order VII has been followed]; xxxx xxxx xxxx xxxx xxxx (c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte; xxxx xxxx xxxx xxxx xxxx (f) an order under rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in force or Letters Patent of a High Court, would apply to appeals from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of the said Act. It was, therefore, contended that the appellants cannot even take the shelter of the Letters Patent or the Delhi High Court Act, 1966 since their operation has specifically been excluded by Section 13(2) of the said Act. The learned counsel for the respondent placed reliance on a Division Bench decision of this court in the case of Harmanprit Singh Sidhu v. Arcadia Shares Stock Brokers Pvt. Ltd: FAO(OS) 136/2016, decided on 30.09.2016, wherein an appeal had been filed purportedly under Section 37 of the Arbitration Conciliation Act, 1996. In that case, the Division Bench upheld the objection that an appeal under Section 37 of that Act could be filed only against the order specified in Section 37(1)(a), (b) or (c) thereof and as the impugned order therein did not fall within the orders specified in Section 37(1) of that Act, the appeal from such an order was held to be not maintainable. 8. The contention of the appellants in that case was that Section 13 of the said Act enabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sures to ensure such expeditious disposal was by reducing the number of appeals against interlocutory orders passed by a Commercial Court or Commercial Division under the said Act. It was submitted that Section 13 of the said Act seeks to ensure that the objective behind the said Act was achieved and, therefore, appeals have been confined only from such orders that fall in the categories enumerated under Order XLIII of CPC and Section 37 of the Arbitration and Conciliation Act, 1996. It was reiterated that Section 13(2) of the said Act, which begins with a non-obstante clause, specifically excludes the applicability of the Letters Patent or any other law for the time being in force (which includes the Delhi High Court Act, 1966). It was further submitted that Section 21 of the said Act gives overriding effect to the provisions of the Act in respect of all other laws for the time being in force, in case of a conflict. It was submitted that a reading of Section 13 of the said Act and Section 10 of the Delhi High Court Act, 1966 would demonstrate that the two provisions would be in conflict. As such, Section 21 would come into play and the provisions of Section 13 of the said Act woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the provisions of Section 13(1) of the said Act held an appeal under Section 50(1)(b) of the Arbitration and Conciliation Act, 1996 to be maintainable, although this provision is not mentioned in the proviso to Section 13(1). Therefore, it was contended that the remedy of appeal under Section 10 of the Delhi High Court Act, 1996 is also available because it has neither been repealed nor amended and on parity of reasoning, the present appeal would be maintainable. 14. It was also submitted on behalf of the appellants that the language of Section 13(2) of the said Act is entirely different from the language of statutory provisions which seek to restrict the remedy of appeal. It was contended that whenever the legislature intended that apart from the orders mentioned, no other orders were to be appealed against, it enumerated the orders which were appealable and specified that no other orders would be appealable. As an instance of such a provision, a reference was made to Section 37 of the Arbitration and Conciliation Act, 1996 and, particularly, to sub-section (1) thereof which specifically uses the expression and from no others . The other instance was of Section 104 of CPC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court. (2) Subject to the provisions of Sub-section (1), the law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court of Punjab and with respect to all matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court of Delhi. (underlining added) 17. It was submitted that the Delhi High Court Act, 1966 would be 'the law for the time being in force' within the meaning of Section 104 of the CPC which, in turn, specifically stipulates that an appeal shall lie from the orders enumerated therein, save as otherwise expressly provided in the body of the Code or by any law for the time being in force and from no others. It was submitted that under Section 104 of CPC, orders referred to in Section 10 of the Delhi High Court Act, 1966 would be appealable and, since Section 104 of CPC has not been amended by the said Act, it would be applicable to proceedings under the said Act. Consequently, an appeal would be maintainable under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be read together harmoniously that the non-obstante clause would override the other provisions of the statute. It was further submitted that if the interpretation given by the respondents were to be accepted, this would result in a conflict between the provisions of Section 13 and 16 of the said Act. On the other hand, if the interpretation put forth by the appellants were to be accepted, there would be no conflict and both Sections would be able to co-exist harmoniously and, therefore, this interpretation ought to be preferred. It was also submitted that the decision of this court in Harmanprit Sidhu (supra) was also not contrary to the interpretation sought to be given by the appellant and that this court only held in the light of the bar to the appealability of the order impugned therein under Section 37 of the Arbitration and Conciliation Act, 1996 that the appeal was not maintainable. According to the learned counsel for the respondents, an interpretation of Section 13 in that case was not necessary. 20. It was finally submitted that in line with the decision of the Bombay High Court in Hubtown Limited (supra), the present appeal was maintainable and ought to be consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortant in this discussion. Sub-section (1) of Section 16 makes it clear that the provisions of the CPC shall, in their application to any suit in respect of a commercial dispute of a specified value, stands amended in the manner as specified in the Schedule to the said Act. Sub-section (2) makes it clear that the Commercial Division and the Commercial Court shall follow the provisions of the CPC, 1908, as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value. Sub-section (3) stipulates that where any provision of any rule of the jurisdictional High Court or any amendment to the CPC, by the State Government is in conflict with the provisions of the CPC, as amended by the said Act, the provisions of the CPC, as amended by the said Act, would prevail. On a conjoint reading of Sections 16 and 21 of the said Act, it appears that wherever amendments have been specified in the said Act to the CPC, the same shall prevail. In other respects, the CPC is to be followed by the Commercial Division and the Commercial Court. If there is any conflict with the provisions of the said Act with any provisions contained in any other law for the time being i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the statement given by the judge on the grounds of a decree or order. In other words, 'judgment' is essentially a statement containing the reasoning behind the decree or the order. It is further pertinent to note that both decrees and orders are decisions. 27. The provisions of 'Appeals', as contained in the CPC, fall within Part-VII thereof. Sections 96 to 99A fall under the heading 'Appeals from original decrees'. Sections 100 to 103 fall under the heading 'Appeals from Appellate decrees' and Sections 104 to 106 fall under the heading 'Appeals from orders'. It is, therefore, clear that appeals fall into two broad categories - (i) Appeals from decrees; and (ii) Appeals from orders. The category of 'Appeals from decrees' is further sub-divided into two categories - (i) Appeals from original decrees; and (ii) Appeals from appellate decrees. It is clear that appeals are only provided under the CPC from decrees or orders. There is no concept of an appeal from a judgment as such under the Code. This is so because the 'judgment', as defined in Section 2(9) of the CPC, is merely the statement given by the judge on the grounds o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. Moreover, in respect of disputes which are not covered by the said Act, the period of limitation for an appeal from any decree or order to a High Court is 90 days, in respect of commercial disputes of a specified value if a person is aggrieved by a decision of a Commercial Court, the appeal would have to be preferred before the Appellate Division of the High Court within a period of 60 days from the date of the decision. In case the decision appealed against is that of a Commercial Division of a High Court, the appeal before the Commercial Appellate Division of that High Court would also to be filed within 60 days. This can be easily contrasted with Article 117 of the Limitation Act, 1963, where the period of 30 days is provided for an appeal from a decree or order of any High Court to the same Court. The sum and substance of this discussion is that the provisions of Articles 116 and 117 of the Limitation Act, 1963, which provided for appeals to the High Court from any decree or order and of a subordinate court and appeals to the High Court from a decree or order passed by the original Side of that High Court to be filed within 90 days and 30 days, respectively from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall lie from such orders passed by a Commercial Division or a Commercial Court that are 'specifically enumerated' under Order XLIII of the CPC, as amended by the said Act and Section 37 of the Arbitration and Conciliation Act, 1996. Clearly, in our view, this restricts the appealable orders to only those orders which are specifically enumerated in Order XLIII. In the present case, the impugned order is admittedly not one specified under Order XLIII. 31. We would also like to examine the scope and function of a 'proviso'. In CIT v. Indo-Mercantile Bank Ltd 1959 Supp (2) SCR 256, the Supreme Court held: - The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the section would have included the subject-matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule... 32. From the above, it is evident that the natural presumption that can be raised while interpreting a proviso is that but for the proviso, the enacting part of the Section would have included the subject matter of the proviso. In Sub-section (1) of Section 13, the word 'order' would have a very wide amplitude and that could have included even orders which are not specifically enumerated in Order XLIII of the CPC. The proviso has taken out those orders and carved out an exception by limiting the appeal from orders to those which are specifically enumerated under Order XLIII of the CPC (apart from an Order under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in section 13(2) of the said Act. 36. Therefore, as the impugned order does not find place in the orders specifically enumerated in Order XLIII CPC, no appeal could lie against it and the present appeal is not maintainable. But, as the learned counsel for the appellants have made several submissions to the contrary we shall have to deal with them. 37. The learned counsel for the appellants had submitted that if the arguments of the respondents were to be accepted then this would have grave consequences as aggrieved parties would be left remediless. It is well established that the right of appeal is a statutory right. It does not exist outside the statute. If the statute does not provide for such a right then that is how the legislature in its wisdom intended it to be. In the absence of a challenge to the provisions, it cannot be argued that though the statute does not provide a remedy of appeal yet we must infer such a right as otherwise an aggrieved party would be without a remedy. 38. It was also argued that one possible remedy might have been by way of revision but that, too, has been taken away by section 8 of the said Act. We need not even address this argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction is confined only to a few causes like Probate and administration, admiralty and cases under Companies Act. (underlining added) 42. There was a conflict of decisions of various High Courts as to whether or not Section 104 CPC would apply to internal appeals in the High Court. This was resolved by the Supreme Court through its decision in Khimji's case (supra). The Supreme Court observed :- 26. Thus, a combined reading of the various provisions of the Code of Civil Procedure referred to above lead to the irresistible conclusion that Section 104 read with Order 43 Rule 1 clearly applies to the proceedings before the trial Judge of the High Court. Unfortunately, this fact does not appear to have been noticed by any of the decisions rendered by various High Courts. xxxxx xxxxx xxxxx xxxxx 28. We find ourselves in complete agreement with the arguments of Mr. Sorabjee that in the instant case Section 104 read with Order 43 Rule 1 does not in any way abridge, interfere with or curb the powers conferred on the trial Judge by clause 15 of the letters patent. What Section 104 read with Order 43 Rule 1 does is merely to give an additional remedy by way of an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Order XLIII Rule 1 CPC would apply to internal appeals in the High Court. The Supreme Court held that it did. In other words, these provisions did not abridge, interfere or curb the powers conferred under clause 15 of the Letters Patent of the Bombay High Court. 43. The Supreme Court also agreed with the view of a full bench of the Calcutta High Court in Mathura Sundari Dassi v. Haran Chandra Saha AIR 1916 Cal 361 which was, inter alia, to the following effect:- The effect of Section 104 is thus, not to take away a right of appeal given by clause 15 of the letters patent, but to create a right of appeal in cases even where clause 15 of the letters patent is not applicable... 44. The Supreme Court noted that despite the finding that section 104 read with Order XLIII Rule 1 CPC applied to Letters Patent appeals there would still be a large number of orders passed by a single Judge which would not be covered by Order XLIII Rule 1. The question arose as to under what circumstances would such orders (i.e., not covered by Order XLIII Rule 1 CPC) passed by a Single Judge of a High Court be appealable to a Division Bench? 45. This aspect is brought out in paragraph 79 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Code could not form a safe basis to determine the definition of the word judgment in the Letters patent, particularly when the Letters Patent had deliberately dropped the word decree from judgment . Agreeing with the view expressed in Mt. Shahzadi Begum v. Alak Nath and Others: AIR 1935 All 620, the Supreme Court observed as under:- 110. In Mt. Shahzadi Begam, v. Alak Nath AIR 1935 All 620 : 1935 ALJ 681 : 157 IC 347], Sulaiman, C.J., very rightly pointed out that as the letters patent were drafted long before even the Code of 1882 was passed, the word judgment used in the letters patent cannot be relatable to or confined to the definition of judgment as contained in the Code of Civil Procedure which came into existence long after the letters patent were given. In this connection, the Chief Justice observed [29 Cal LJ 225] as follows:- It has been held in numerous cases that as the letters patent were drafted long before even the earlier Code of 1882 was passed, the word 'judgment' used therein does not mean the judgment as defined in the existing Code of Civil Procedure. At the same time the word 'judgment' does not include every possible ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. It seems to us that the word judgment has undoubtedly a concept of finality in a broader and not a narrower sense. ...... (underlining added) 47. On going through Khimji's case (supra), it is evident that the word judgment as used in the Letters Patent of the High Courts, is much wider and goes beyond the orders specifically enumerated under Order XLIII of the CPC. But, what must not be forgotten is that the word judgment in Khimji's case (supra) has been interpreted as appearing in and in the context of the Letters Patent of High Courts (which would also by analogy include Section 10 of the Delhi High Court Act, 1966). However, the meaning of the word judgment as appearing in the CPC, as defined in Section 2(9) thereof is clearly linked with the definition of a decree . The word 'judgment' in Section 13(1) of the said Act has to be considered not in the context of any Letters Patent of a High Court or a provision such as Section 10 of the Delhi High Court Act, 1966 but, in the context of the Code of Civil Procedure inasmuch as (1) the Commercial Division and the Commercial Court are enjoined by Section 16 to follow the provisions of the CPC, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was established. The question that arises in the present case is whether an appeal filed against an order of a Commercial Division of the High Court before the Commercial Appellate Division of that High Court is one under Section 13(1) of the said Act or under a Letters Patent of a High Court or under any other law for the time being in force, including a provision such as Section 10 of the Delhi High Court Act, 1966 ? It is evident that Section 13(1) not only provides for a forum of appeal in respect of a decision of a Commercial Court or a Commercial Division of a High Court, but, as pointed out above, also prescribes a specific period of limitation for such an appeal. Section 13(2) expressly stipulates that no appeal would lie from any order or decree of a Commercial Division or a Commercial Court otherwise than in accordance with the provisions of the said Act. Thus, the right of appeal as well as the forum of appeal has been specifically provided under the said Act and in this regard, the application of the Letters Patent or any other law dealing with the appeals has been excluded. 49. In Arun Dev Upadhyaya (supra), in the context of an arbitration proceeding, it was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at from the wordings used in Section 13 that insofar as orders are concerned, appeals shall lie only from such orders that are specifically enumerated under Order XLIII of CPC. Section 13(2) further fortifies the position that no appeal shall lie from any order or decree of a Commercial Division or a Commercial Court otherwise than in accordance with the provisions of this Act. 51. The learned counsel for the appellants had also relied on the decision of the Bombay High Court in Hubtown Limited (supra). Paragraph 33 of the said decision reads as under:- 33. Appeal against any final decision include the judgment so passed by the Commercial Court and/or Commercial Division, the proviso to Section 13(1) will not be applicable to such decision/judgment, as the proviso refers to orders . The reference to orders in the opening portion of Section 13(1) would relate to the application of the proviso to Sub-section (1). However, the opening portion of sub-section (1) (words prior to the proviso) clearly use the words decision , judgment and order . Therefore, the ambit of this part of sub-section (1) is quite broader when it comes to appeals arising out of orders other than th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) which specifically enumerates appealable orders to be those specified in Order XLIII CPC. 54. It was lastly contended that if the interpretation given by the respondents were to be accepted, there would be a conflict between the provisions of Sections 13 and 16 of the said Act and in such an eventuality, the rule of harmonious construction ought to be employed. We do not see as to how there would be a conflict between the provisions of Sections 13 and 16 if the interpretation advanced by the respondents and accepted by us was to be employed. We have already pointed out above that Section 13(1) not only provides for a forum of appeal but also a specified period of limitation. The proviso to Section 13(1) explicitly provides that an appeal shall lie from such orders that are specifically enumerated under Order XLIII of CPC. Section 13(2) makes it further clear that no appeal shall lie from any Order or decree of a Commercial Division or a Commercial Court otherwise than in accordance with the provisions of the said Act notwithstanding anything contained in any other law for the time being in force or in a Letters Patent of a High Court. When the provisions of a statute are expli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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