The proviso in Section 13 of the Commercial Courts Act qualifies the generality of the main provision by providing an exception, and appeals from orders passed in commercial causes would lie only in accordance with Section 13(1) and 13(1A), and not otherwise.

JUDGMENT

Vipin Sanghi, J. - In respect of Item 1, the Registry is directed to register the appeal as FAO (OS)(COMM) No. 23/2020 instead of FAO(OS) No. 23/2020.

2) These three commercial appeals have been preferred under Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015 (Commercial Courts Act) to assail the orders passed in the respective commercial causes by the learned Single Judge. The particulars of the impugned orders passed in these three appeals are as follows:

(I) FAO(OS)(COMM) No. 23/2020

The impugned order is dated 31.10.2019 passed by learned Single Judge in O.A. No. 81/2019 [CS(COMM) No. 1261/2018]. By the impugned order, the learned Single Judge dismissed the Chamber Appeal against the order passed by the Joint Registrar, whereby the right of the plaintiff to file the replication as well as affidavit of admission/ denial of documents was closed.

(II) FAO(OS)(COMM) No. 17/2020

The impugned order is dated 06.12.2019 passed by learned Single Judge in CS(COMM) No. 1143/2018. By the impugned order, the learned Single Judge rejected three issues proposed by the defendant, including an issue on limitation. The appeal is preferred only qua the disallowance of the issue on limitation.

(III) FAO(OS)(COMM) No. 17/2020

The impugned order is dated 01.10.2019 passed by learned Single Judge in I.A. 7379/2019[CS(COMM) No. 513/2017]. By the impugned order, the learned Single Judge allowed the application for amendment of the plaint.

3) Section 13 of the Commercial Courts Act, which creates the Right of Appeal reads as follows:

"13. Appeals from decrees of Commercial Courts and Commercial Divisions

.(1) 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." (emphasis supplied)

4) In light of the provision contained in Section 13 of the Commercial Courts Act, since none of the impugned orders are specifically appealable under Order 43 CPC, we had required the parties to address us on the aspect of maintainability of the present appeals.

5) Learned counsels for the appellants placed reliance on a Division Bench judgement of this Court in D & H India Ltd. vs Superon Schweisstechnik India Ltd. [FAO(OS)(COMM) No. 237/2019] decided on 16.03.2020. The Division Bench in its decision, inter alia, in Para 21 held as follows:

"21. On a plain reading, the proviso to Section 13 (1A) of the Commercial Courts Act is an enabling, rather than a disabling, provision. There is nothing, in the said proviso, which would seem to indicate that it dilutes the effect of sub-section (1A) of Section 13. If we were to read the said proviso as excluding, from the jurisdiction of the appellate court, all orders, passed by a Commercial Court, save and except those which find specific enumeration in Order XLIII of the CPC, it may amount to rewriting the proviso to read "Provided that no appeal shall lie, except from such orders passed by a Commercial Di