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Remedy against Non Appealable Order in Commercial Court Act 2015

The Subject Matter Petition:
The Subject Matter CM Main under Article 227 of Constitution of India was filed against Order dated 25.09.2021 passed by Ld. ADJ, South District , Saket Courts, New Delhi in CS (Comm) No. 184 of 2020 where by Application of the Petitioners/Defendants under Order 7 Rule 11 CPC was dismissed.

The Non Appealable Order:

Order 43 of CPC provides the list of orders which are Appealable in nature. Orders passed under Order 7 Rule 11 CPC , rejecting the same, does not fall into that category. Hence it is non Appealable Order.

Availability Of Appellate Remedy Against Such Non Appealable Orders Under Commercial Court Actn 2015:

As per Section 13 of Commercial Court Act 2015, no Appeal can be filed against such orders which are non appealable in view of Order 43 CPC. Hence Order passed under 7 Rule 11 CPC, rejecting the same, Appellate remedy is not available. Now the question was this, whether such orders are Appealable under Article 227 of constitution of India or not?

The Maintainability Of Subject Matter Petition Under Article 227 Of Constitution Of India:

This Question arose in view of bar of Section 13 as also Section 8 of Commercial Court Act 2015. Section 8 Commercial Court Act 2015 bars the remedy of civil revision application or petition. Section 13 bars Appellate Remedy against non appealable Orders.

It was contended that Remedy under Article 227 of Constitution of India was rivisional remedy which is akin to remedy of Civil Revision Petition under Section 115 of CPC. Hence this question of maintainability of Petition under Article 227 of Constitution of India was required to be decided.

The Finding Of Hon'ble Court:
The term used Petition in Section 8 of the Commercial Court Act 2015 is not and could not have been with reference to a petition under Article 227 of the Constitution.

Remedy under Article 227 , being a Constitutional Remedy, could not be affected by a statute framed by a legislature which was itself a creature of constitution.

A creature of the Constitution of India cannot act in negation of the provisions of the Constitution of India.

The Statute created by Legislature can not limit the Revisional Right of High Court granted under Article 227 of Constitution of India.

The term Revision Petition used in Section 8 of Commercial Court Act 2015 is applicable to Section 115 of CPC and not Article 227 of Constitution of India.

The curtailment of revisional jurisdiction of the High Court did not take away and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court.

Even power of superintendence conferred on the High Court under Article 227 of the Constitution remain unaffected by Section 8 or 13 of the Commercial Court Act 2015.

The Conclusion:
Thus a Person aggrieved can assail the Order of a district court , rejecting application under Order 7 Rule 11 CPC by filing Civil Misc. Main Petition before the Hon'ble High Court of Delhi under Article 227 of Constitution of India.

Case Title: Black Diamond Tracks Parts Pvt. Ltd. and Ors Vs Black Diamond Motors Pvt. Ltd.
Case Law Discussed:
Date of Judgment: 10.08.2021
Case No:CM (Main) 132 of 2021
Neutral Citation No: NA
Name of Hon'ble Court: Hon'ble High Court of Delhi
Name of Hon'ble Judge: Rajiv Sahai Endlaw and Amit Bansal, H.J.


Information contained herein is being shared in the public Interest. The same should not be treated as substitute for legal advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the facts and law involved herein.

Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: [email protected], Ph no: 9990389539

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