A petition under Article 227 of the Constitution of India is maintainable against non-appealable orders of Commercial Courts despite restrictions in the Commercial Courts Act, preserving the High Court's constitutional jurisdiction.

JUDGMENT

Rajiv Sahai Endlaw, J.

[VIA VIDEO CONFERENCING]

1. These two petitions, both under Article 227 of the Constitution of India, though unrelated to each other, on merits or qua parties, were clubbed together for the reason of entailing certain common questions of law.

2. CM(M) No.132/2021 was filed, impugning the order dated 25th September, 2021 of the District Judge (Commercial)-01, South District, Saket Courts, New Delhi in CS(COMM) No.184/2020, of dismissal of the application of the petitioners/defendants under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC). The said suit was filed by the respondent/plaintiff for permanent injunction, to restrain the petitioners/defendants from passing off their goods as that of the respondent/plaintiff and for ancillary reliefs. The petitioners/defendants applied for rejection of the plaint in the said suit, on the ground of the Courts at Delhi not having territorial jurisdiction to entertain the suit and on the ground of the reliefs claimed in the suit being barred by res judicata. Vide the impugned order, the said application was dismissed.

3. CM (M) No.225/2021 was filed, impugning the order dated 29th January, 2021 of the District Judge (Commercial), South East, Saket, New Delhi in CS(COMM) No.323/2019, of dismissal of the application of the petitioner/defendant under Order VIII Rule 1 of the CPC for condonation of delay in filing the written statement. The said application was dismissed vide the impugned order, on the ground that the Commercial Courts, under the law have no power to extend the period of 120 days for filing the written statement.

4. Both the petitions, as per the roster of this Court, were listed before a Single Judge of this Court and notice of both the petitions was ordered to be issued. However vide order dated 27th May, 2021 in CM (M) No.132/2021 and vide order dated 21st May, 2021 in CM (M) No.225/2021, following the judgment dated 27th January, 2021 in FAO No.232/2020 titled Delhi Tourism and Transportation Development Corporation Vs. Swadeshi Civil Infrastructure Pvt. Ltd., holding that per Section 13 (1A) of the COMMERCIAL COURTS ACT , 2015, the appeals against a judgment/order of the Commercial Court at the level of District Judge exercising Original Civil jurisdiction, appeals lie to the Commercial Appellate Division, the Single Judge before which these petitions were pending, ordered these petitions to be placed before the Commercial Appellate Division of this Court. Accordingly, the petitions were listed before this bench.

5. Before proceeding further, we may notice that Delhi Tourism and Transportation Development Corporation supra was pronounced in an appeal preferred against the orders of the District Judge (Commercial) and which appeal, notwithstanding Section 13 (1A) supra of the COMMERCIAL COURTS ACT was erroneously listed before a Single Judge of this Court. All that the said judgment did was, to have the appeal placed before the Commercial Appellate Division.

6. CM (M) No.132/2021 came up first before this Bench, exercising powers as Commercial Appellate Division, on 28th May, 2021 when the counsels were asked to address on the following two questions:

"(i) whether after coming into force of the COMMERCIAL COURTS ACT , 2015, a petition under Article 227 of the Constitution of India lies with respect to non-appealable orders of the Commercial Courts.

(ii) if the answer to the above is in the affirmative, whether the said petition is to be considered by a Single Judge of this Court or, on a parity of the jurisdiction for hearing appeals being of a Commercial D