SANJIV KHANNA, J.

Samsung Leasing Limited, Samsung Overseas Limited, Samsung Electro Products Private Limited and Samsung Impex Private Limited, who are defendants in CS(OS) No. 303/2004 filed by Samsung Electronics Company Limited and Samsung India Electronics Limited, have filed the present intra-Court appeal impugning the order dated 30th August, 2016 allowing application IA No. 11621/2009 for amendment of the plaint.

2. The application for amendment had stated that due to inadvertent mistake on the part of the plaintiffs, who are respondents before us, claim for infringement of trademark Samsung was not prayed for in the prayer clause. Accordingly, amendments were sought in the prayer clause and also other paragraphs of the plaint, including the title.

3. The impugned order dated 30th August, 2016 allows the amendment application rejecting the contention of the appellants that the trial had commenced and, therefore, the proviso to Order VI, Rule 17 of the Code of Civil Procedure, 1908 (Code, for short) would be applicable. The single Judge has relied upon decision of a Division Bench of this Court in FAO (OS) No. 51/2009, Man Mohan Singh versus Veena Sehdev, decided on 16th February, 2009, which refers to the case law on the subject, including decision of the Supreme Court in Baldev Singh versus Manohar Singh, AIR 2006 SC 2832 to hold that the “trial has commenced” in the context of the provision means and refers to examination of witnesses and not merely filing affidavit by way of evidence on behalf of the plaintiff. In the present case, even affidavit by way of evidence has not been filed by the respondents. Further, the proviso to Order VI, Rule 17 of the Code does not create an absolute bar, and in the facts of the case, the amendment should be allowed keeping in view the technical nature of the amendment. Plea based upon Order II or constructive res judicata was rejected after referring to the Division Bench judgment of this Court in Vaish Cooperative Adarsh Bank Limited versus Geetanjali Despande, (2003) 102 DLT 570.

4. Learned Counsel for the Respondents has raised an objection as to the maintainability of the appeal in view of the provisions of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015 (hereinafter referred to as the Commercial Courts Act) and reference is made to the Division Bench Judgment of this Court dated 14th February, 2017 in FAO (OS) (COMM) No. 12/2017, HPL (India) Limited and Others versus QRG Enterprises and Another.

5. Learned Counsel for the Appellants, however, submits that the Commercial Courts Act would not be applicable as Registry has not registered and treated the present suit as a commercial suit. Hence, the present appeal would be maintainable.

6. We have considered the submission, and find merit in the preliminary objection raised by the respondents. The Commercial Courts Act defines “commercial dispute” under Clause (c) to Section 2. As per sub-clause (xvii) of clause(c) to Section 2, intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semi-conductor integrated circuits are commercial disputes. The present suit relates to intellectual property rights covered by sub-clause (xvii) to clause (c) of Section 2 of the Commercial Courts Act and this cannot really be challenged and disputed. Indeed, no attempt was made.

7. With regard to the question of jurisdiction of the Commercial Courts, we would like to refer to Section 4 of the Commercial Courts Act, which reads as under:-

“4. Constitution of Commercial Division of High Court.- (1) In all High Courts, having ordinary civil jurisdiction, the Chief Justice of the High Court may, by order, constitute Commercial Division having one or more Benches consisting of a single Judge for the purpose of exercising the jurisdiction and powers conferred on it under this Act.

(2) The Chief Justice o