IMPORTANT POINT
The right of appeal under the Commercial Courts Act vests in a suitor on the date of institution of the original action and cannot be taken away by any subsequent statute unless expressly provided.

JUDGMENT :

I.P. Mukerji, J.

1. Sufficient cause is shown. The application GA 1 of 2024 in APOT 56 of 2024 is allowed by condoning the delay in filing the appeal.

2. A very intriguing question of law has arisen in these appeals. Whilst arguments in the suit were underway, the appellants defendants (the appellant) made two applications - one for amendment of the written statement and the other for leave to adduce further evidence by recalling their witness. On 20th July, 2023 a learned single judge of this court dismissed the application.

3. The appellant moves us.

4. Before the appellant could move the appeals on merits, Mr. Sabyasachi Chowdhury, learned advocate for the respondent/plaintiff (respondent) objected to the court entertaining the appeal.

5. He said that an appeal did not lie from the impugned order. His short ground was this:

The suit is a commercial cause. Under Section 13 of the Commercial Courts Act only specified appeals can be entertained by the court.

There is no doubt whatsoever that the impugned order is not appealable under Section 13.

6. It was through his legal acumen and vast experience that Mr. Haradhan Banerjee, learned advocate, appearing for the appellant could put forward some very compelling arguments in support of maintainability of the appeal. He argued that the suit was instituted as an ordinary suit in 2015. After coming into force of the Commercial Courts Act, 2015 it was transferred to the Commercial division and marked as a commercial suit. Thus, on the date of coming into force of the said Act, the suit was marked as an ordinary suit. The rights and liabilities of the parties existing on the date of coming into force of the said Act were preserved, despite its enactment. It followed that the right of appeal against the impugned order available under Clause 15 of the Letters Patent was not taken away from the parties by transfer of the suit to the Commercial division under the said Act. Hence, the appeal was maintainable.

7. At this point of time, it is necessary to discuss the decisions cited at the bar.

8. The first is Rubinetterie Bresciane Bonomi SpA vs. Lehry Instrumentation & Valves Pvt. Ltd. reported in (2019) SCC Online Mad 29916, cited by Mr. Banerjee. In Paragraph 22 of the judgment the learned judge summarized the law with regard to the right of a party on appeal after a change of law had taken place between filing of the proceedings and preferment of the appeal. Unless expressly taken away all rights prevailing on the date of institution of the proceeding continued to apply. The court observed in paragraph nos. 22, 42, 43 & 44 as follows:-

“22. To consolidate the principles that flow from the above authorities which are but a few among the many on the subject, it can now be stated with a fair degree of certainty that a right of appeal, though a statutory right, though conceived as a procedural right, yet is a substantive right that vests in a suitor on the date of institution of the original action. And, when the said right is interfered with by any subsequent statute, or even by an amendment of the same statute, it is impermissible to attempt at a statutory interpretation to take away a vested right of appeal in a party, unless the statute itself either expressly or by necessary implication makes its retrospective.

42. If the quintessence of the ideas that the Courts have hitherto declared through their judgments are taken and grouped, there emanates a larger idea which indicates that the Courts have come to recognise the right of appeal, though procedural in nature, as a substantive right, and once vested in a litigant, Courts ought to guard itself in granting retrospective effect to any statute that purports to affect it. Should there be a legislative intent to give it a retrospective operation, and to divest a litigant of his vested right of appeal, it must be positively stated in the statue, or in its absence, it must surface as a compulsive consequence on a wholesome reading of the sta