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TMI Blog2023 (12) TMI 1434X X X X Extracts X X X X X X X X Extracts X X X X ..... ants - Defendants under Order VII Rule 10 and Rule 11(d) of the Code of Civil Procedure, 1908 (hereinafter referred to as the "Code") read with Section 19(6) to (10) of the Recovery of Debts and Bankruptcy Act, 1993 (hereinafter referred to as the "Recovery Act, 1993) has been rejected. 4. The facts of the case which can be culled out from the pleadings available on record and the submissions made by the learned counsel for the respective parties are that the Plaintiff - Respondents instituted Commercial Suit No.6 of 2019 against the Appellants-Defendants for recovery of loss and damages and compensation of Rs. 100 Crores + Rs. 10,10,733/- together with interest on the said amount @ 13.95% p.a. from the date of institution of the suit till final realization. 5. The said suit has been filed with the plaint allegations, inter alia, that the plaintiff is a partnership firm engaged in the business of builders and contractors since 1987 and that the Defendants fraudulently invoked the measures under the guise of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SARFAESI Act) to grab the property of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ODATEER at Plot No.11A Sector 21, Nerul, Navi Mumbai. 8. Learned Counsel for the Defendants has further stated that the Defendants have filed Original Application bearing No.575 of 2017 against the Plaintiff before the Debts Recovery Tribunal No.3 at Mumbai (Vashi) for the recovery of a sum of Rs. 18,81,66,435/- which according to the Defendants is due against the Plaintiff on account of default in repayment of the credit facility sanctioned and granted to the Plaintiff. The said Original Application has been preferred under Section 19 of the Recovery Act, 1993. 9. It has been further stated by the Defendants that in the Commercial Suit No.6 of 2019 filed by the Plaintiff an Application under Order VII Rule 10 and 11(d) of the CPC was preferred by the Defendants with a prayer that the plaint be rejected on the ground that jurisdiction to entertain the suit between the borrower and the Bank i.e. the Plaintiff and Defendants is with DRT at Mumbai and not the learned Trial Court. The Application moved by the Appellants further prayed, alternatively, that the plaint be returned to the Plaintiff for filing before appropriate forum. 10. The said Application was contested by the Plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals from decrees of Commercial Courts and Commercial Divisions- - (1) Any person aggrieved by the decision of a Commercial Court or Commercial Division of a High Court may appeal to the Commercial 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 Civil Procedure Code, 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." 14. Section 13, after its amendment vide Act No.28 of 2018 reads as under: "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 Commercial Appellate Court within a period of sixt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said provision is to be read in conjunction with the proviso which specifically states that an appeal shall lie only from orders which are specifically enumerated under Order XLIII of the CPC. The occurrences of the expression "shall" and "specifically" in the proviso has to be noted for correctly understanding the legislative intent in framing the scheme of Section 13 of the Act of 2015. It is also noteworthy that the order under challenge in this appeal has been passed by the learned trial court rejecting the Application moved by the Defendants under Order VII Rule 10 and Rule 11(d) of the CPC. Such an order is not enumerated in Order XLIII of the CPC, though Rule 1(a) of Order XLIII enlists an order passed under Order VII Rule 10 for returning the plaint. Thus, Order XLIII enlists the order passed on an Application under Order VII Rule 10 if it is allowed, however, it does not enlist the order in case such an Application is rejected. Order XLIII also does not enlist any order passed on an Application under Order VII Rule 11(d) of the CPC. 18. Learned Counsel for the Appellant, however, has emphasized that in view of the law laid down by Delhi High Court in the case of D & H Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Delhi High Court that the appeal was maintainable giving the reason that it emanated from the order passed under rule 5 of Chapter 2 of Delhi High Court Original Side Rules and thus the Commercial Appellate Division of High Court was concerned with the order referable to Rule 5 of the Chapter 2 of the Delhi High Court Original Side Rules and not with the order referable to Order VI Rule 17 of the CPC. 21. In the aforesaid facts of the case the Delhi High Court held the appeal to be maintainable, whereas, in the instant case the appeal before us has been filed against the order of the learned District Judge in his capacity as a Commercial Court under the Act of 2015. The order passed by a Court rejecting an Application preferred under Order VII Rule 10 and Rule 11(d) of the CPC, is not enumerated in order XLIII. Thus, the judgment of Delhi High Court in the case of D & H India Ltd. (supra) is clearly distinguishable and does not have any application to the present case. 22. As far as the reliance placed by the learned counsel for the Defendants on the judgment of the Delhi Court in the case of Delhi Chemical and Pharmaceutical Works Pvt. Ltd. (supra) is concerned, we find th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the judgments in the case of Hubtown Ltd. Vs. IDBI Trusteeship Services Ltd., 2016 SCC OnLine Bom 9019 and Sigmarq Technologies Pvt. Ltd. Vs. Manugraph India Ltd. 2017 SCC OnLine Bom 9191. Paragraph 44 of the judgment in the case of Shailendra Bhadauria (supra) is relevant which is extracted hereunder: "44. Now, the Commercial Courts (Amendment) Act, 2018 amends the Act 4 of 2016 and deletes the word "decision" from Section 13. We have already reproduced it above. Thus, the earlier view in Hubtown Limited (supra) and Siqmarq Technologies (supra) will have to give way and all the more after the Judgments of the Hon'ble Supreme Court delivered in the case of Fuerst Day Lawson Limited v. Jindal Exports Limited, reported in (2011) 8 SCC 333 and the authoritative and binding pronouncement in the case of Kandla Export Corporation (supra). The statute has to confer a right of appeal. That has to be conferred in clear words. We cannot, as suggested by Mr. Andhyarujina, by an interpretative process carve out a right of appeal, when the law is not creating it." 26. The judgment in the case of Skil-Himachal Infrastructure & Tourism Ltd. & Ors. (supra) also takes note of the law laid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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