The LPA remedy is not ousted by Section 13 of the 2015 Act.

ORDER

Yashwant Varma, J.

LPA 397/2023

THE PRELIMINARY OBJECTION

1. The instant Letters Patent Appeal¹ [LPA]questions the correctness of the judgement rendered by a learned Single Judge of the Court dismissing a petition for rectification moved by the appellant and referable to Section 57 of the Trade Marks Act, 1999² [TMA].

2. When we heard the matter on 10 July 2023, we took note of the preliminary objection which was raised at the behest of respondent no. 1 relating to the maintainability of the present LPA itself. Admittedly, the question of maintainability of an LPA against a judgement rendered by a learned Judge of the Court on a petition under Section 57 of the TMA had directly fallen for consideration before a Coordinate Bench of the Court in Resilient Innovations Pvt. Ltd. v. Phonepe Private Limited & Anr., 2023:DHC:3426-DB and came to be answered in the affirmative.

3. As was noticed by us in our order of 10 July 2023, Mr. Nayar, Mr. Sethi and Mr. Krishnan, learned senior counsels appearing for respondent no. 1 had in unison submitted that the exposition of the legal position in Resilient Innovations was incorrect and merited reconsideration. The doubts so expressed essentially rested upon the provisions of the Commercial Courts Act, 2015³ [2015 Act] and more particularly Section 13 thereof, which restricts an intra-court appeal only to such orders as may be traceable to Order XLIII of the Code of Civil Procedure, 1908⁴ [Code] and Section 37 of the Arbitration and Conciliation Act, 1996⁵ [1996 Act] Learned senior counsels had contended that although the issue of whether an intra-court appeal would be maintainable in light of Section 13 of the 2015 Act was directly raised before the Court in Resilient Innovations, no findings or conclusions came to be returned in that respect.

4. On hearing learned senior counsels for parties on that date, we had desisted from expressing any prima facie opinion subject to submissions in this respect being heard in greater detail. Pursuant to the liberty so reserved, learned senior counsels representing respondent no. 1 were thereafter heard at length on the question whether Resilient Innovations merited reconsideration or in case of doubt the matter liable to be referred for the consideration of a larger Bench. In order to delineate the principal issue which arises, the submissions that were addressed on this score are noted hereinafter.

5. The respondent no. 1 would contend that Section 2(1)(c) of the 2015 Act, while defining the expression "commercial dispute" in terms of clause (xvii) includes a dispute arising out of intellectual property rights relating to registered and unregistered trade marks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits. It was contended that the 2015 Act must thus be understood as bringing within its ambit all commercial disputes as defined and which would include those arising out of intellectual property disputes.

6. It was further submitted that in terms of Section 7 of the 2015 Act, all suits and applications relating to commercial disputes are ordained to be heard and disposed of by the Commercial Division of a High Court. Learned senior counsels also relied upon Sections 4 and 5 of the aforesaid enactment to submit that the provisions aforenoted clearly mandate all commercial disputes, and which would necessarily include those falling within the scope of Section 2(1)(c)(xvii), to be tried by the Commercial Division of the High Court or a commercial court.

7. It was then submitted that in terms of Section 13, an appeal is provisioned for against any judgement or order of a commercial court or by a Judge sitting on the Commercial Division of a High Court. However, and was pointed by learned senior counsels, such appeals would stand restricted to orders traceable either to Order XLIII of the Code or Section 37 of the 1996 Act. It was the submission of learned senior counsels that an order rejec