Bombay High Court
Anil Shah Trading As Le Shark India vs Le Shark Apparel Limited on 18 April, 2026
Author: Bharati Dangre
Bench: Bharati Dangre
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Salgaonkar
MANDIRA MILIND Digitally signed by MANDIRA
MILIND SALGAONKAR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SALGAONKAR Date: 2026.04.23 17:53:16 +0530
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL APPEAL (L) NO.40525 OF 2025
IN
COMMERCIAL MISCELLANEOUS PETITION NO.538 OF 2022
WITH
INTERIM APPLICATION (L) NO.40663 OF 2025
IN
COMMERCIAL APPEAL (L) NO.40525 OF 2025
Anil Shah Trading as Le Shark India .. Appellants
& Anr.
Versus
Le Shark Apparel Limited & Anr. .. Respondents
...
Mr.Alankar Kirpekar with Mr.Lakshyaved R. Odhekar,
Mr.Omkar N. Mhasde and Mr.Ayush Tiwari for the Appellants.
Mr.Rohan Kadam with Ms.Rucha Vaidya, Mr.Manosij
Mukharjee, Mr.Dominic Alvares, Mr.Ritik Gupta and Ms.Sneha
Meghani i/b Suvarna Joshi for the Respondents.
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATE : 18th APRIL, 2026
...
ORDER (PER BHARATI DANGRE, J.)
1. The present Appeal is filed by the Appellants, challenging
the order dated 14/10/2025 passed in Commercial
Miscellaneous Petition No.538 of 2022 filed by the Le Shark
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Apparel Limited, United Kingdom, who instituted Rectification
Application seeking removal of the Appellants’ long standing
registered trademark “LESHARK” Registration No.466002 in
Class 25 from the Register of Trade Marks. The application
primarily was premised on the ground that the Appellants had
not used their mark and the invoices placed on record to
establish its user, were fabricated and they had no bona fide
intent to use the mark and the adoption of the mark was
dishonest.
By order dated 14/10/2025, Commercial Miscellaneous
Petition No.538 of 2022 was made absolute by concluding that
Section 57 of the Trade Marks Act, 1999 confer discretion on
the Court to maintain purity of the Register and having prima
facie held that there is fraudulent adoption of the impugned
trademark by the Respondents, the impugned trademark was
directed to be removed from the Register by directing
removal/expunging of Trademark No.466002 in Class 25.
2. Being aggrieved by the aforesaid, the present
Commercial Appeal is filed under Section 13 of the Commercial
Courts Act, 2015 praying for setting aside of the impugned
order passed by the learned Single Judge.
The pleading in the Appeal specifically state thus :-
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“7. The impugned order dated 14 October 2025 was passed by the
Hon’ble Single Judge exercising Ordinary Original Civil Jurisdiction
in the Commercial Division of this Hon’ble Court, in proceedings
governed by the Commercial Courts Act, 2015. The present Appeal
is therefore maintainable before this Hon’ble Court under Section
13(1A) of the Commercial Courts Act, 2015, read with Order XLIII
of the Code of Civil Procedure, 1908, as applicable to commercial
disputes by virtue of Section 16 read with the Schedule to the
Commercial Courts Act.”
3. Learned counsel Mr.Rohan Kadam representing the
Respondents would raise a preliminary objection about
maintainability of the Appeal, as it is the contention of
Mr.Kadam that the Application for Rectification was filed by Le
Shark Apparel Limited before the Intellectual Property
Appellate Board (“IPAB”) for cancellation of the registered
trademark in the name of Anil Shah trading as M/s Le Shark
Exports Private Limited in Class 25, the said Application being
filed under Section 47 of the Trade Marks Act 1999, which
provide for removal of a registered trademark from the
Register in respect of which it is registered, on an application
being made in the prescribed manner either to the Registrar or
to the High Court by any aggrieved person. It is also submitted
that prior to 04/04/2021, the power to be exercised by the
High Court was available to the IPAB and the application is
permitted to be filed on the ground that the trademark was
registered without any bona fide intention on the part of the
applicant for registration or that there was no bona fide use of
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the trademark in relation to the goods and services by any
proprietor thereof for the time being up to a date three months
before the date of the application, a continuous period of five
years from the date on which the registered trademark is
actually entered in the register or a period longer than this has
elapsed, when there was no bona fide user of the said mark.
By inviting our attention to Section 57, which is the
power to cancel or vary the registration and to rectify the
Register, Mr.Kadam would submit that on an application being
made in the prescribed manner to the High Court or to the
Registrar, the concerned Authority, as the case may be, may
make such a order as it thinks fit for cancelling or varying the
registration of the trademark on the ground of any
contravention or failure to observe a condition entered on the
Register in relation thereto. It is specifically urged that earlier
the power was permissible to be exercised by IPAB, but after
the amendment, this power is exercised by the High Court or
by the Registrar.
4. According to Mr.Kadam, a suit for infringement of a
registered trademark or relating to any right in registered
trademark or for passing-off arising out of the use by the
defendant of any trade mark which is identical with or
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deceptively similar to the plaintiff’s trade mark shall lie in any
Court inferior to a District Court having jurisdiction to try the
suit. Mr.Kadam, by inviting our attention to Section 13 of the
Commercial Courts Act, 2015, would submit that there is no
dispute that the Application for Rectification can be
entertained by the High Court and he does not dispute the fact
that the dispute is of commercial nature.
The Miscellaneous Petition before the High Court
requesting it to exercise its power under Section 57, prayed for
expunging of the impugned mark on the ground that it was
fraudulently adopted by the Respondents and an entry
wrongly made and wrongly remaining on the Register
“without sufficient cause” justified exercise of the power.
It was attempted to be canvassed in the Miscellaneous
Petition that it was a fit case for invoking the power of
expunging the trademark under Section 47 and undisputedly,
the High Court exercised its ordinary original civil jurisdiction
in commercial division. However, according to Mr.Kadam, the
power to be exercised by the Commercial Court under Section
13(1-A) is hedged by a proviso, and since the order dated
14/10/2025 is passed on a Miscellaneous Petition, and it is not
a “Decree”, the Appeal will not lie against it under sub-section
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(1-A) of Section 13, as only against the orders enumerated in
Order XLIII of the Code of Civil Procedure, 1908 (for short,
“CPC“), the Appeal is maintainable alongwith an order passed
under Section 37 of the Arbitration and Conciliation Act.
By relying upon the decision in the case of Skil- Himachal
Infrastructure & Tourism Ltd. & Ors. Vs. IL&FS Financial
Services Ltd.1, Mr. Kadam has urged before us that the term
‘Judgment’ contemplated under sub-section (1-A) of Section
13 must necessarily be a “Decree” and he would rely upon the
aforesaid decision where it is held that Section 13 of the
Commercial Courts Act permit Appeals only (i) against decree;
(ii) against orders specifically enumerated in Order XLIII of
CPC and (iii) under Section 37 of the Arbitration and
Conciliation Act. According to Mr.Kadam, the said decision
has exhaustively interpreted the provisions of Section 13(1-A)
by juxtaposing it against the earlier decision, when the
provision of Section 13(1) included the term “Decision” and
there was no wording as “Judgment” or “Order”.
By relying upon the definition of the term “Decree” as
defined in Section 2(2), it is the submission of Mr.Kadam that
decree is a formal expression of adjudication, conclusively
determining the right of the parties with regard to all or any of
1 2022 SCC OnLine Bom 3152
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the matters in controversy and it may be preliminary or final.
By placing heavy reliance upon the observations of the
Division Bench in Skil-Himachal (supra), he would submit that
an appeal under sub-section (1-A) of Section 13 would lie only
against the Decrees and the Orders which are specifically
enumerated in Order XLIII of the CPC, and since the impugned
order do not fall within either of it, the appeal cannot be
entertained. Mr.Kadam has also placed reliance upon the
decision of this Court in the case of Resilient Innovations Pvt.
Ltd. Vs. PhonePe Private Limited2, where the question arose,
whether an appeal under Section 13 of the Act would lie
against an order dated 22/10/2021, when the plaintiff in the
proceedings was granted leave to withdraw the suit, with
liberty to file a fresh suit on the same cause of action, the leave
having been granted by invoking power under Order XXIII
Rule 1(3) of CPC. The preliminary objection being raised on
the maintainability of the Appeal, it was contended that the
appeal is maintainable as the impugned order is a “Judgment
and a Decree”. Emphasis was laid on the requirement of a
decree, conclusively determining the rights of the parties with
regard to all or any matters in controversy in the suit.
2 MANU/MH/0820/2022
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5. In addition, Mr.Kadam would also place reliance upon the
decision in the case of Madhavprasad Kalkaprasad Nigam Vs.
S.G.Chanraverkar3 holding that the proceedings to eject a
tenant under Chapter VII of the Presidency Small Cause Courts
Act are not a suit and the order for ejectment is not a Decree.
Reliance is also placed upon the decision in Nalinakhya Bysack
Vs. Shyam Sunder Haldar & Ors.4, a decision under the West
Bengal Premises Rent Control (Temporary Provisions) Act,
1950, where the question arose for determination, whether an
order passed under the said enactment would amount to
“Decree” and it is held that the word “Decree” has been defined
in the Code to mean formal expression of an adjudication which
determines the rights of the parties with regard to the matter
in controversy in the suit. If this is the ordinary accepted
meaning of the word “Decree”, then the Court held that
meaning attributed to the word “Decree” occurring in Section
18(1) of the Act of 1950, cannot cover an order for possession
passed under Section 43 of the Presidency Small Cause Courts
Act on an application made under Section 41 of that Act, and it
is also held that the word ‘suit’ does not and was not intended
to cover any proceedings under the Presidency Small Cause
Courts Act.
3 1950 ILR Bom 326
4 (1953) 1 SCC 167
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6. Dealing with the preliminary objection raised by
Mr.Kadam, Mr.Kirpekar for the Appellants, at the outset, would
submit that the order is passed by the learned Single Judge in
exercise of ordinary original jurisdiction on the commercial
division and since, it finally determined the rights of the
parties, it is a “Judgment”. Mr.Kirpekar would place reliance
upon the decision in case of Sigmarq Technologies Pvt. Ltd. Vs.
Manugrah India Ltd.5 in support of his submission based on
Section 13 of the Commercial Courts Act, when the word used
therein was “decision”, but Mr.Kadam would submit that the
said decision stands overruled.
According to Mr.Kirpekar, while deciding the said issue,
the Court will also have regard to Section 21 of the Commercial
Courts Act, which clearly stipulated that the provision of the
Act shall have effect, notwithstanding anything inconsistent
therewith contained in any other law for the time being in force
or in any instruments having effect by virtue of any law for the
time being in force other than this Act. He would invoke the
principle of law laid down by this Court in a recent
pronouncement in case of Vishal Prafulsingh Solanke & Anr.
Vs. Controller of Patent and Designs & Ors.6, where the
following issue arose for consideration :-
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of the Commercial Courts Act, 2015, is maintainable or whether the
proviso to the said section, restrict the appeal only to the orders
enumerated under Order XLIII of the Code of 1908, and to the order
under Section 37 of the Arbitration and Conciliation Act, as the
decision under challenge is not an ‘Order’ but a ‘Judgment
/Decree’.”
By relying upon the decision of the Apex Court in MITC Rolling
Private Limited & Anr. Vs. Renuka Realtors & Ors. 7, it is held
that an appeal filed by the appellant invoking Section 117-A of
the Patents Act, 1970, which was entertained as miscellaneous
petition by the High Court on its ordinary original jurisdiction
on its commercial division, an appeal before the Commercial
Appellate Division is maintainable, though on the point of bar
under Section 100-A of CPC, it being a second appeal, the
appeal was not entertained.
7. Giving thoughtful consideration to the objection raised
by Mr.Kadam, which we have understood to the effect that
Section 13 of the Commercial Courts Act, 2015, provides for
appeals from decrees of Commercial Courts and Commercial
Divisions.
Sub-section (1-A) reads thus :-
“(1-A) 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
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11/25 901 COMAPL-40525-25.odtenumerated 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).”
The objection of Mr.Kadam is, that such an appeal shall lie only
against “judgment” or “order” of a Commercial Court, which is
at the level of District Judge, exercising original civil
jurisdiction or by the Commercial Division of High Court. But,
by virtue of the proviso, the forum of appeal is restricted only
to the orders passed by the Commercial Division or a
Commercial Court that are specifically enumerated under
Order XLIII of CPC and Section 37 of the Arbitration and
Conciliation Act, 1996. Therefore, the contention advanced is,
unless and until the order which is challenged is an order
enumerated under Order XLIII of CPC, the appeal shall not lie.
Yet another contingency, when an appeal is maintainable
under sub-section (1-A) is against a “Judgment” of the
Commercial Court at the level of District Judge exercising
original civil jurisdiction or by the Commercial Division of the
High Court, when an appeal shall lie to the Commercial
Appellate Division and an attempt is made to urge that the
term “Judgment” is synonymous to “Decree” and as
interpreted by the Division Bench in Skil-Himachal (supra),
Section 13 of the Commercial Courts Act permits appeal only
against decrees.
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8. The term “Decree” is assigned a definite connotation in
the Code of Civil Procedure, which reads thus :-
(2) “decree” means the formal expression of an adjudication which,
so far as regards the Court expressing it, conclusively determines
the rights of the parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or final. It
shall be deemed to include the rejection of a plaint and the
determination of any question within [* * *] section 144, but shall
not include-
(a) any adjudication from which an appeal lies as an appeal
from an order, or
(b) any order of dismissal for default.
Explanation .-A decree is preliminary when further proceedings
have to be taken before the suit can be completely disposed of. It is
final when such adjudication completely disposes of the suit. It may
be partly preliminary and partly final”
A bare look at the aforesaid would reveal that a conclusive
determination of rights of the parties with regard to all or any
of the matters in controversy in the suit through a formal
adjudication is decree.
The term “Judgment” is also defined in Section 2(9) to
mean the statement given by the Judge on the grounds of a
decree or order. Similarly, “Order” as per Section 2(14) means
the formal expression of any decision of a Civil Court which is
not a decree.
9. It is, therefore, evident that the Civil Procedure Code has
assigned distinct meaning to the terms and though “Decree”
and “Order” are the formal expression of any adjudication, the
distinguishing factor is evident. “Order” is not a decree and
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“Order” is the formal expression of any decision of a Civil
Court, whereas “Decree” is the formal expression of
adjudication by any Court expressing it, which conclusively
determine the rights of the parties involved in the suit.
“Judgment”, however, is the statement/reasoning of the Judge
on which he has passed a Decree or Order and “Judgment” is
common for both “Decree” and “Order”, as the reasoning given
by the Judge in support of a decree or order is the judgment.
Keeping this clear distinction in mind, the Parliament
while introducing a provision of an appeal under the
Commercial Courts Act, 2015, has contemplated an appeal,
both against a Judgment or Order, but restricted its
maintainability only to the order under Order XLIII of the
Code, although appeal is maintainable against the judgment
passed by the District Court exercising original civil
jurisdiction or a Commercial Division of the High Court. This
distinction was clearly noted by the Apex Court in MITC
Rolling Private Limited (supra), when it observed thus :-
“17. Section 13(1A) of the CCA, 2015, is in two distinct parts.
The main provision contemplates appeals against ‘judgments’ and
‘orders’ of the Commercial Court to the Commercial Appellate
Division of the High Court. The proviso, operating as an exception,
must be construed harmoniously with the main provision and not
in derogation thereof. Where the language of the main provision is
plain and unambiguous, the proviso cannot be invoked to curtail or
whittle down the scope of the principal enactment, save and except
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14/25 901 COMAPL-40525-25.odtproviso merely restricts appeals against interlocutory orders to
those specifically enumerated under Order XLIII CPC and Section
37 of the Arbitration and Conciliation Act, 1996. Consequently, only
such interlocutory orders as are expressly specified therein would
be amenable to an appeal under the proviso; orders not so
enumerated would not fall within the restricted fold of the proviso.
18. … … …
19. A bare reading of the above paragraph makes it manifest
that the said case involved a challenge to an order rejecting
application(s) under Order VII Rule 10 and Order VII Rule 11(d) of
the CPC, which order(s) are not enumerated under Order XLIII of
the CPC. Thus, there cannot be any quarrel with the proposition
that such an order would not be amenable to an appeal under
Section 13(1A) of the CCA, 2015, and rather, can be challenged by
filing a revision or a petition/application under Article 227 of the
Constitution of India, as the case may be.”
Applying the principle laid down to the facts, where it involve
an order rejecting plaint under Order VII Rule 11, it was held
that an order rejecting a plaint under Order VII Rule 11 decide
the lis finally and would amount to a “decree” within meaning
of Section 2(1) of the Code. However, it was noted that when
an order under challenge was one rejecting the application
moved under Order VII Rule 10 or under Order VII Rule 11(d)
of CPC, since it was only for return of plaint and the lis
between the parties was not finally concluded and this being
not an order passed under Order XLIII, an appeal would not
lie.
10. The test to determine whether the judgment is final
adjudication of the rights of the parties and it finally determine
the lis, is the testing factor to ascertain whether it has
conclusively determined the rights of the parties with regard
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to all or any of the matters in controversy in the
suit/proceedings. In the present case, the rectification
proceedings were instituted before the Intellectual Property
Appellate Board (IPAB) as it then existed as per Sections 47
and 57 of the Trade Marks Act, but it stood transferred to the
High Court. The High Court, therefore, determined the
application filed by Le Shark Apparel Limited, seeking
rectification of the Respondents’ (present Appellants)
registered Trade mark in Class 25 for, “Articles of Clothing,
including Boots, Shoes and Slippers, Scarves and Raincoats”
under Sections 47 and 57 of the Trade Marks Act, 1999.
The learned Single Judge appreciated the contention
raised that the petitioner’s claim for its trade mark
“LESHARK” and the device was unique, original and fanciful
adoption of “Le” and “Shark” with a unique graphic of a shark
and it relied upon the registration of the device mark in United
Kingdom in Class 25. The petitioner also relied upon the use of
the said mark by its predecessor and also referred to its
registration in India by the Registrar of Trade marks.
In the background facts set forth in the application, the
applicant prayed for expunging of the impugned mark of
respondent Nos.1 and 2 under Section 47(1)(a) of the Trade
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16/25 901 COMAPL-40525-25.odtMarks Act for want of bona fide intention to use the impugned
mark. The lack of bona fide use upto the period of three
months before the date of petition was demonstrated by
alleging that the impugned mark is borne out of a mere
dishonest copy and adoption of trademark that were
registered prior in time by the predecessor in United Kingdom,
France and the Benelux countries and subsisting in its name.
11. Submitting that it was a fit case for exercise of power
under Section 47 of the Act, it was contended that the
respondents had no explanation for having adopted the
impugned mark, though they had pleaded a case that they had
built a thriving business under the impugned mark for over 37
years and generated enormous goodwill, but there was no
material placed on record to support its sweeping claim, as no
certified sales figures; advertising figures; assessment orders;
and/or any promotional materials were produced.
A strong contest was raised on behalf of respondent
Nos.1 and 2, by submitting that the petitioner had no business
in India at the time of filing of Rectification Petition and,since,
the petitioner had not claimed any trans-border reputation
and goodwill, it having spilled over in Indian
jurisdiction/markets in India, in contrast the respondents
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trade mark being registered and subsisting for over 37 years,
made it entitled for its user.
12. The rival claims were determined by the learned Single
Judge, when he arrived at the conclusion that the registration
of the trade mark of the respondents is vulnerable to challenge
under Section 47 as well as Section 57 of the Act, since there
was no bona fide use and the impugned trade mark has been
obtained by fraud and the rights enjoyed by the respondents
and conferred by registration under Section 28(1) of Act is
qualified with the words, ‘subject to the provisions of this Act’
and, therefore, the registration is subject to the provisions of
the Act, which include Sections 47 and 57.
Recording a prima facie finding that the impugned
registered trade mark is liable to be rectified under Section 47
for having borne out of the fraudulent adoption and not having
been bona fidely used, the use by the petitioner of its
registered trademark from 2014 onwards outside India was of
no consequence.
As a result of detailed deliberation on the scope of
Sections 47 and 57 of the Act, which conferred discretion upon
the Court to maintain purity of the Register, having prima
facie held that there is fraudulent adoption of the impugned
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trademark by the respondents, it was directed to be removed
from the Register for sufficient cause.
13. A thoughtful reading of the order dated 14/10/2025,
though on proceedings captioned as “Commercial
Miscellaneous Petition” praying for rectification of the
respondents’ registered trade mark, the contest being raised
by the petitioner against the respondents for lack of bona fides
in using the impugned mark and dishonest copy and adoption
of the petitioner’s trademark registered prior in time by its
predecessor abroad and as between the parties, the contest for
the trademark is finally adjudicated by directing the Registrar
of Trademarks, directing to remove the trademark claimed by
the respondents from the Register. As between the parties,
there is a final adjudication of the lis and undisputedly, the
decision of the learned Single Judge amount to a “Decree”, as
the learned Single Judge has conclusively determined the
rights of the parties in regard to the controversy involved and
presented before him, and therefore, the decision of the
learned Single Judge, though delivered on a Commercial
Miscellaneous Petition, amounts to a “Decree”. If this is so, we
have no hesitancy in holding that an appeal challenging it
would fall within the purview of Section 13(1-A) of the
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Commercial Courts Act. Merely because the proceedings
under Sections 47 and 57 of the Trade Marks Act are not
initiated by way of a plaint and they do not arise from a suit,
but they arise in form of an application/miscellaneous petition,
in our view, the decision of the learned Single Judge do not
lack the traits of a decree.
14. Reliance placed by the learned counsel on the decision in
the case of Nalinakhya (supra) is distinguishable as the Court
considered whether an order for possession passed by the
Small Cause Court under Section 43 of the Presidency Small
Cause Courts Act on an application under Section 41 of the Act
to be treated as “decree” and with reference to Section 18(1) of
the West Bengal Premises Rent Control (Temporary
Provisions) Act, 1950, it is seen that the provision conferred
power on the Court to rescind or vary the decrees and
provided that where any decree for recovery of possession of
any premises has been made on the ground of default in
payment of arrears of rent under the Act of 1948, but the
possession of such premises had not been recovered, then the
tenant may apply to the Court for vacating the decree of
ejectment against him and within such period, no delivery of
possession shall be made by any Court.
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Admittedly, the order passed under Section 18(1), did
not finally determine the lis between the parties and the Apex
Court has rightly held that there was no occasion for giving
extended meaning to the word “Decree”, so as to include
“Order”, for the two are distinctly and separately provided for.
It was categorically noted that Section 18(1) did not refer to
“Decree”, but to “Decree for recovery of possession” of any
premises on the ground of default in payment of arrears of
rent under the Act of 1948 and this was distinct from an order
of possession on the ground of non payment of rent. Holding
that a decree for recovery of possession within the meaning of
the Act can, therefore, only mean a decree in a suit for
recovery of possession and cannot cover an order for
possession passed under Section 43 on an application made
under Section 41 of the Presidency Small Cause Courts Act, it
was conclusively held as below :-
“In short, section 18(1) of Act of 1950 expressly attracts the 1948
Act and under that Act there can be no necessity for giving an
extended meaning to the word “decree”, for “order ” is separately
dealt with in said Act.”
15. The judgments relied upon by Mr.Kadam about what
would amount to “Decree” under the Code of Civil Procedure
are delivered in the peculiar facts, as one thing is clear that
any final adjudication of the rights of the parties with regard to
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all or any of the matters in controversy would amount to
decree and in situations where the plaint was returned, the
suit was allowed to be withdrawn, it has been held not to be
amounting to “Decree”, as the order passed did not draw
curtains on the lis between the parties, but wherever there is
final determination of rights of parties in the proceedings, we
have no hesitancy in holding that it is a “Judgment” for the
purposes of Section 13(1-A) and an appeal would lie.
If the legislature has chosen to use the word “Judgment”
or “Order” in sub-section (1-A) of Section 13 of the Commercial
Courts Act instead of the word “Decree”, we must respect the
intention of the legislature and presume that the Parliament
was conscious in the choice of the words and it is not open for
us to read beyond the same, as in our view, the term
“Judgment” is the statement of the Judge in form of grounds
supporting a decree or order and we deem it necessary to
restrict the application of sub-section (1-A) of Section 13 to a
“Judgment” and, since, the scope of appeal against the order is
restricted only to those mentioned in the proviso, we must
record that the orders from a Commercial Court or a
Commercial Division of High Court cannot travel beyond that.
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16. Another reason which prompt us to accept the aforesaid
interpretation, is the use of word “suit”, “application” or
“proceedings” in relation to a commercial dispute, as we find
that the commercial disputes as defined in Section 2(c) are not
restricted to the one arising in suits only.
While conferring the jurisdiction on the Commercial
Court to try commercial disputes, Section 6 of the Act has
conferred the jurisdiction to try all suits and applications
relating to a commercial dispute of a specified value and
similarly, by virtue of Section 7, all suits and applications
relating to commercial disputes of a specified value are to be
entertained by the High Court having ordinary original civil
jurisdiction and it is prescribed that they shall be heard and
disposed of by the Commercial Division of the High Court.
Further, when the language of Section 11, which creates
a bar of jurisdiction of Commercial Courts and Commercial
Divisions by prescribing that the Commercial Court or
Commercial Division shall not entertain or decide any suit,
application or proceedings relating to any commercial dispute
in respect of which the jurisdiction of the Civil Court is either
expressly or impliedly barred under any other law for the time
being in force, it is to be noted that in addition to “suit” and
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“application”, the Parliament has also used the terminology
“proceedings”.
Another indication in this relation comes from Section
12, where the specified value of the subject matter of the
commercial dispute in a suit, appeal or application, when there
is a provision for determination of specified value of the
subject-matter of the commercial dispute in a suit, appeal or
application and the reading of the said provision would reveal
that the commercial dispute can arise either in a suit, or
appeal or application. In the wake of sufficient indication in
the Act, where commercial dispute may be instituted, either in
form of a suit, application or appeal. In our view, the
constricted approach which Mr.Kadam wants us to adopt,
being restricting a Decree only to a suit will not serve the
purpose of enacting the special statute. Whatsoever may be
the nomenclature of the proceedings involving commercial
dispute, which is specifically defined by the statute and the
proceedings being instituted either in form of suit, application
or appeal, if there is final determination of the rights between
the parties, and results into a judgment or order, an appeal
under sub-section (1-A) of Section 13 is maintainable.
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17. In the decision of Division Bench in Skil-Himachal
(supra), the Court noted thus :-
“44. In the Supreme Court decision in Kandla Export Corporation,
Section 13 was addressed like this. First, that Section 13(1) of the
CC Act is in two parts. The main provision deals with appeals from
judgments, orders and decrees to the Commercial Division of the
High Court. To this, the proviso is an exception. Second, the proviso
must be construed harmoniously with the main provision, not in
derogation of it. It operates in the same field. If main provision is in
clear language, the proviso cannot be used to ‘interpret’ the main
part, or to exclude — let alone by implication — any part of the main
provision; except, of course, if the proviso plainly contemplates
such an exclusion. Under the proviso, appeals against orders are
restricted to those orders under Order 43 of the CPC, and Section
37 of the Arbitration Act. Therefore, no appeal lies to the
Commercial Appellate Division against any order not specifically
listed in Order 43 of the CPC (or an order not under Section 37 of
the Arbitration Act).
45. An order of conditional leave under Order 37 of the CPC is not
enumerated in Order 43. It is an order, not a decree. Therefore,
following Kandla Exports and Shailendra Bhadauria, such an order
is not appealable under the CC Act.
46. Finally, there is the decision of division bench of this court in
Kakade Construction which reviewed the previous decisions
including Kandla Exports, Shailendra Bhadauria and Sushila
Singhania. The appeals arose from an order appointing a Court
Receiver of certain property. That order was made on a Chamber
Summons in execution of a consent arbitral award. Once again, the
division bench held that the appeal was not maintainable”.
With reference to the decision in Resilient Innovations
Pvt. Ltd. (supra), which arose out of the order in Commercial
Suit, which permitted the plaintiff to withdraw the suit with
liberty, the argument advanced was, the appeal was
maintainable, since the order permitting the withdrawal was a
Judgment and Decree and the Division Bench held that an
appeal from a Decree does lie under Section 13. The
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submission that “Decree” for the purpose of Section 13 is more
restrictive than a “Decree” under the provisions of CPC was
rejected and when the judgment and the observations of the
Division Bench are read in entirety, by no sense, we find that
the judgment intended to restrict Section 13 of the Commercial
Courts Act only against decrees, as the Division Bench was
conscious of the use of the word “Judgment” in Section 13,
which was introduced by 2018 amendment as distinguished
from the word “Decision”, which only mean a “Decree”.
18. In light of the aforesaid, we do not find any merit in the
preliminary objection raised by Mr.Kadam and reject the
same.
Overruling the said objection, we direct the Commercial
Appeal alongwith Interim Application to be listed on
30/04/2026.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)
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