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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Sanjib Banerjee, P.D. Audikesavalu, JJ.
Hindustan Unilever Limited, Chennai & Others – Petitioners
Versus
S. Shanthi, Proprietrix Lakshmi Soaps, through her power holder D. Suyaraj, Coimbatore & Others – Respondents
OSA. Nos. 230 of 2019 & 208 of 2021 & OSA (CAD) Nos. 1 to 4, 19, 24 to 27, 29 & 30 of 2021 & CMP. Nos. 9290, 10325 to 10327, 10339, 10340, 10330 to 10334, 10336, 10337, 10444 & 8495 of 2021
Decided On : 23-09-2021
Code of Civil Procedure, 1908 - Order VII Rule 11 – Constitution of India, 1950 – 226 ,227 and 136 - Dismissal of an application seeking rejection of plaint - OSA is a proposed appeal against dismissal of an application seeking rejection of plaint under Order VII Rule 11 of Code of Civil Procedure, 1908 It is submitted by appellant that relevant suit was filed before Commercial Division in High Court came to be established and upon Commercial Division being established suit was transferred from ordinary Original Side to Commercial Division in accordance with said Act - Whether intra-court appeals permissible in court before Commercial Division was established would still be maintainable in light of such provision – Held, Impugned judgment is that the Bombay suit is no more worth the paper it is printed on and if the plaintiff has to pursue any action to recover any part of its investment, it is the present action. Again, it must be conceded that the natural forum for this action may have been the Bombay High Court, but that does not imply that this court would not have jurisdiction or that the jurisdiction of this court has been improperly invoked by the plaintiff in lodging the suit here - As a consequence appeals being OSA (CAD) are dismissed as not maintainable - Grounds taken in relevant applications out of which OSA and OSA (CAD) arise may be canvassed before transferee court - Plaint pertaining to C.S. may now be presented before appropriate court within four weeks of date of return of plaint - OSA (CAD) dismissed.
JUDGMENT :
Sanjib Banerjee, J.
(Prayer: Appeal under Order XXXVI Rule 9 of the Original Side Rules read with Clause 15 of the Letters Patent against the order dated 24.7.2019 passed in A.No.2002 of 2018 in C.S.No.243 of 2017.
in OSA (CAD) Nos.1 and 2 of 2021: Appeals under Section 13(1) of the Commercial Courts Act, 2015 and Order XXXVI Rule 9 of the Original Side Rules read with Clause 15 of the Letters Patent against the order dated 27.4.2021 passed in A.No.1381 of 2021 and order dated 29.3.2021 passed in O.A.No.151 of 2021 in C.S.No.91 of 2021.
(in OSA (CAD) Nos.3 and 4 of 2021: Appeals under Section 13(1) of the Commercial Courts Act, 2015 and Order XXXVI Rule 9 of the Original Side Rules read with Clause 15 of the Letters Patent against the order dated 27.4.2021 passed in A.Nos.1376 and 1375 of 2021 in C.S.No.91 of 2021.
in OSA (CAD) No.19 of 2021: Appeal under Section 13(1) of the Commercial Courts Act, 2015 and Order XXXVI Rule 9 of the Original Side Rules read with Clause 15 of the Letters Patent against the order dated 29.3.2021 passed in A.No.1380 of 2021 in O.A.No.151 of 2021 in C.S.No.91 of 2021.
in OSA (CAD) No.24 of 2021: Appeal under Section XIII of Commercial Divisions and Commercial Appellate Division of the High Court Act, 2015 read with Clause 15 of the Letters Patent against the order dated 29.4.2021 in A.No.3293 of 2020 in C.S. (Comm.Div.) No.154 of 2020
in OSA (CAD) No.25 of 2021: Appeal under Section XIII of Commercial Divisions and Commercial Appellate Division of the High Court Act, 2015 read with Clause 15 of the Letters Patent against the order dated 29.4.2021 in A.No.656 of 2021 in C.S. (Comm.Div.) No.154 of 2020)
in OSA (CAD) No.26 of 2021: Appeal under Section XIII of Commercial Divisions and Commercial Appellate Division of the High Court Act, 2015 read with Clause 15 of the Letters Patent against the order dated 29.4.2021 in A.No.2678 of 2020 in C.S. (Comm.Div.) No.154 of 2020
in OSA (CAD) No.27 of 2021: Appeal under Section XIII of Commercial Divisions and Commercial Appellate Division of the High Court Act, 2015 read with Clause 15 of the Letters Patent against the order dated 29.4.2021 in A.No.2785 of 2020 in C.S. (Comm.Div.) No.154 of 2020.
in OSA (CAD) Nos.29 and 30 of 2021: Appeals under Order XXXVI Rule 9 of the Original Side Rules read with Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018 read with Clause 15 of the Letters Patent against the order dated 19.4.2021 made in A.Nos.486 and 485 of 2021 in C.S.No.445 of 2018.
in OSA No.208 of 2021: Appeal under Order XXXVI Rule IX of the Original Side Rules read with Clause 15 of the Letters Patent against the order dated 23.9.2020 passed in A.No.8503 of 2019 in C.S. No.950 of 2017.)
1. The extent to which appeals are permitted in respect of matters covered by the Commercial Courts Act, 2015 (hereinafter referred to as “the said Act”) falls for a comprehensive consideration.
2. There are, in all, 13 appeals which are taken up together since the issue of appellability is involved in all or most of them. At the outset, it is necessary that the nature of the orders be seen so that it may be assessed whether an intra-court appeal lies therefrom under Section 13(1A) of the said Act.
3. OSA No.230 of 2019 is a proposed appeal against the dismissal of an application seeking rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”). It is submitted by the appellant that the relevant suit was filed before the Commercial Division in this High Court came to be established and, upon the Commercial Division being established, the suit was transferred from the ordinary Original Side to the Commercial Division in accordance with the said Act.
4. OSA (CAD) Nos.1, 2, 3, 4 and 19 of 2021 arise out of the same suit which may loosely be seen as a trademark infringement and passing-off action. Two of the appeals are by the plaintiffs an
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