JUDGMENT :

Sanjib Banerjee, J.

The appeal arises out of an order passed granting conditional leave to defend in a suit instituted under Order XXXVII of the Code of Civil Procedure, 1908.

2. There is no dispute that the suit is a commercial suit. Indeed, it was instituted in the commercial division of this Court and numbered as C.S.(Comm. Div.) No.297 of 2020.

3. Appeals in respect of orders passed in commercial suits are governed by Section 13 of the Commercial Courts Act, 2015. Section 13(1A) of the Act provides as follows :

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

(1) ...

(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)."

4. Notwithstanding the absence of the word "only" in the proviso to the relevant sub-section, it is obvious that the proviso restricts the operation of the general provision and confines the same to orders enumerated in Order XLIII of the Code of Civil Procedure, 1908. Further, Section 13(2) of the Act of 2015 takes away the operation of Letters Patent in appeals under the Act of 2015. In other words, what has traditionally been considered to be an appellable order under Clause 15 of the Letters Patent applicable to this Court will no longer be appellable under Section 13(1A) of the Act of 2015 if such matter is not covered by Order XLIII of the Civil Procedure Code, 1908.

5. The provision, particularly sub-section (1A), is unhappily worded. Several faults may be found elsewhere in the statute, but the biggest anomaly appears to be in the choice of the expression "judgment or order", as if the two are comparable. However, the word "judgment" in Section 13(1A) of the Act of 2015 does not appear to have been used in the same sense as the word is used in Clause 15 of the Letters Patent or how it has been interpreted to mean from the long line of cases beginning the Justices of Peace case originating in Calcutta.

6. Since no appeal is permitted in a commercial suit from the nature of an order granting conditional leave to defend a summary suit, O.S.A.(CAD) No.14 of 2021 is dismissed without going into the merits thereof. Consequently, C.M.P.No.9912 of 2021 is closed.

There will be no order as to costs.