ARRENA OVERSEAS PRIVATE LIMITED vs BATRA ART PRESS

2023-10-10 Information

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10.10.2023
+ FAO(OS) (COMM) 323/2022 and CM APPL. 46176/2023
ARRENA OVERSEAS PRIVATE LIMITED ….. Appellant
Through: Mr Amit Sibal, Senior Advocate with Mr Rajat Aneja, Ms Chandrika Gupta and Mr Darpan Sachdeva, Advocates.

Versus
BATRA ART PRESS ….. Respondent
Through: Mr S.K. Sharma, Mr Rahul Sharma, Mr Tejas Singh and Mr Yugant Kumar, Advocates
CORAM:
HON’BLE MR. JUSTICE VIBHU BAKHRU
HON’BLE MR. JUSTICE AMIT MAHAJAN

VIBHU BAKHRU, J.
1. The appellant has filed the present intra court appeal under Section 13 of the Commercial Courts Act, 2015 impugning a judgment dated 28.10.2022 (hereafter the impugned judgment) whereby the learned Single Judge rejected the application, being IA No.721/2018 in CS (COMM) 806/2016. The said application was filed by the appellant/plaintiff under Order XII Rule 6 read with Order XIIIA Rule 2 of the Code of Civil Procedure, 1908 (hereafter the CPC).
2. The question to be considered at the threshold is whether the present appeal is maintainable in view of Section 13 of the Commercial Courts Act, 2015 (hereafter the Commercial Courts Act). The said section 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 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.
3. An order rejecting an application under Order XII Rule 6 of the CPC is not one of the orders which is specifically enumerated under Order XLIII of the CPC.
4. The Supreme Court in Kandla Export Corporation & Anr. v. OCI Corporation & Anr.1, had held that the scope of an appeal under Section 13(1A) of the Commercial Courts Act is controlled by the proviso to the said Sub-section. The relevant extract of the said decision is set out below:
13. Section 13(1) of the Commercial Courts Act, with which we are immediately concerned in these appeals, is in two parts. The main provision is, as has been correctly submitted by Shri Giri, a provision which provides for appeals from judgments, orders and decrees of the Commercial Division of the High Court. To this main provision, an exception is carved out by the proviso. The primary purpose of a proviso is to qualify the generality of the main part by providing an exception, which has been set out with great felicity in CIT v. Indo-Mercantile Bank Ltd. [CIT v. Indo-Mercantile Bank Ltd., 1959 Supp (2) SCR 256 : AIR 1959 SC 713] , thus : (SCR pp. 266-67 : AIR pp. 717-18, paras 9-10)
9. 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.
8. 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 proviso.
Therefore, it is to be construed harmoniously with the main enactment. (Per Das, C.J. in Abdul Jabar Butt v. State of J&K [Abdul Jabar Butt v. State of J&K, 1957 SCR 51 : AIR 1957 SC 281 : 1957 Cri LJ 404] , SCR p. 59 : AIR p. 284, para 8). Bhagwati, J., in Ram Narain Sons Ltd. v. CST [Ram Narain Sons Ltd. v. CST, (1955) 2 SCR 483 : AIR 1955 SC 765] , said : (SCR p. 493 : AIR p. 769, para 10)
10. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other.
10. Lord Macmillan in Madras & Southern Mahratta Railway Co. Ltd. v. Bezwada Municipality [Madras & Southern Mahratta Railway Co. Ltd. v. Bezwada Municipality, 1944 SCC OnLine PC 7 : (1943-44) 71 IA 113] laid down the sphere of a proviso as follows : (IA p. 122 : SCC OnLine PC)
The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. Where, as in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude, from it by implication what clearly falls within its express terms.
The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect. (Vide also Toronto Corpn. v. Attorney-General of Canada [Toronto Corpn. v. Attorney-General of Canada, 1946 AC 32 (PC)] , AC p. 37.)
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.
15. Thus, an order which refers parties to arbitration under Section 8, not being appealable under Section 37(1)(a), would not be appealable under Section 13(1) of the Commercial Courts Act. Similarly, an appeal rejecting a plea referred to in sub-sections (2) and (3) of Section 16 of the Arbitration Act would equally not be appealable under Section 37(2)(a) and, therefore, under Section 13(1) of the Commercial Courts Act.
5. The provisions of Sub-section (2) of Section 13 of the Commercial Courts Act are unambiguous. The said Sub-section contains a non obstante clause and expressly provides that, notwithstanding any law for the time being in force, or the Letters Patent of the High Court, no appeal would lie from any order or decree of the Commercial Division or Commercial Court otherwise in accordance with the provisions of the Commercial Courts Act.
6. Further, Section 21 of the Commercial Courts Act also contains a non obstante provision and expressly provides that save as otherwise provided, the provisions of the Commercial Courts Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
7. In view of the above, the provisions of Section 13(2) of the Commercial Courts Act read with Section 13(1A) of the Commercial Courts Act, which restricts the appeals to only those orders as specified in Order XLIII of CPC shall override the provisions of Section 10 of the Delhi High Court Act, 1966 and the rules made thereunder.
8. A Co-ordinate Bench of this Court in Odeon Builders Pvt. Ltd. v. NBCC (India) Ltd.2 had, followed the decision of the Supreme Court in Kandla Export Corporation & Anr. v. OCI Corporation & Anr.1 and held that an appeal by resorting to Letters Patent in the light of the judgment of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania & Anr.3, would not be maintainable under Section 13 of the Commercial Courts Act.
9. This Court has also followed the aforesaid view in H.P. Cotton Textile Mills Ltd. v. Oriental Insurance Company Ltd4
10. Mr Sibal, learned senior counsel appearing for the appellant referred to the decision in the case of Shyam Sel and Power Limited & Anr. v. Shyam Steel Industries Ltd.5 in support of the contention that the present appeal is maintainable under Clause 10 of the Letters Patent as applicable to this Court. He submitted that in that case the Supreme Court had considered a matter arising from an ad interim order passed by the learned Single Judge of the Calcutta High Court. The plaintiff had preferred an appeal from the decision of the learned Single Judge, under the Letters Patent, before the Division Bench of the Calcutta High Court. The Division Bench modified the order passed by the learned Single Judge, but in effect allowed the appeal.
11. It was, inter alia, contended before the Supreme Court that the appeal preferred by the plaintiff before the Division Bench of the High Court was not tenable in view of the judgment of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania & Anr.3. In the aforesaid context, the Supreme Court had examined the maintainability of an appeal against the decision of the learned Single Judge. The Supreme Court also noted that an intra court appeal lies to a Division Bench of the High Court under Clause 15 of the Letters Patent and had, inter alia, examined the question whether the order passed by the learned Single Judge of the Calcutta High Court was a judgment. We are unable to accept that the decision of the Supreme Court in Shyam Sel and Power Limited & Anr. v. Shyam Steel Industries Ltd.5 is of any assistance to the appellant in this case. The question whether an appeal would lie against an order, which was not covered under Order XLIII of the CPC in view of the provisions of Section 13 of the Commercial Courts Act which was neither the subject matter of debate before the Supreme Court nor the decision rendered by the Court.
12. It is trite law that a judgment is an authority for what it decides. In P.S. Sathappan(dead) by lrs vs Andhra Bank Ltd. & Ors.6 the constitution bench of the Supreme Court had observed that it is further well settled that a decision is not an authority for the proposition which did not fall for its consideration7. It is also relevant to refer to the following passage from the said decision:
118. The Constitution Bench, therefore, did not decide the questions raised herein nor was there any occasion for it to do so. No reliance, therefore, can be placed on certain observations made therein as regards the legal position, as it then stood. It is well known that a judgment is an authority for what it decides and not what may even logically be deduced therefrom.
13. In Shyam Sel and Power Limited & Anr. v. Shyam Steel Industries Ltd.5, the Supreme Court had not decided the maintainability of the appeal before the Division Bench on the anvil of Section 13 of the Commercial Courts Act. Therefore, it is not an authority for the proposition that notwithstanding that the order under Order XII Rule 6 of the CPC is not one of the orders enumerated under Order XLIII of the CPC, an appeal would lie under the Letters Patent as applicable to this Court.
14. Mr Sibal also submitted that the respondent has not raised any objection regarding maintainability of the present appeal.
15. It is correct that the respondent has not raised any objection as to the maintainability of the present appeal. On the contrary, it was submitted on behalf of the respondent that the matter would require some time for arguments on merits. However, we are not persuaded to accept that the present appeal ought to be entertained for that reason. It is well settled that the parties cannot by consent confer or oust jurisdiction. Thus, this Court cannot assume jurisdiction merely because the respondent has not raised the said issue.
16. The present appeal is not maintainable by virtue of Section 13 of the Commercial Courts Act. The appeal is, accordingly, dismissed. The pending application is also disposed of.
17. It is clarified that the order will not preclude the appellant from availing such remedies, if any, as may be available in law.

VIBHU BAKHRU, J

AMIT MAHAJAN, J
OCTOBER 10, 2023
RK
1 (2018) 14 SCC 715 decided on 07.02.2018
2 2019 SCC OnLine Del 10795 decided on 31.10.2019
3 AIR 1981 SC 1786 decided on 10.08.1981
4 2023/DHC/000632 decided on 23.01.2023
5 (2023) 1 SCC 634 decided on 14.03.2022
6 (2004) 11 SCC 672 decided on 07.10.2004
7 P.S. Sathappan(dead) by lrs vs Andhra Bank Ltd. & Ors.: (2004) 11 SCC 672, Paragraph 147
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FAO(OS)(COMM) No.323/2022 Page 1 of 1