Appeal against the order passed u/s 36 of the A&C Act is not maintainable u/s 13 of the Commercial Courts Act, 2015.

In the matter of H P Cotton Textile Mills Ltd Vs. Oriental Insurance Company Limited, EFA (OS) (COMM) 15/2018, decided by the Hon’ble Delhi High Court on 23.01.2023.

Facts of the Case-

The appellant had filed an intra-court appeal against the order dated 31.08.2018 passed by the Ld. Single Judge, disposing of the Appellant’s petition for enforcement of arbitral award u/s 36 of A&C Act. The Respondent has raised a preliminary objection regarding the maintainability of the said appeal.

The principal question raised before the Hon’ble Court is whether the present appeal is maintainable u/s 13 of the Commercial Courts Act, 2015.

Observations and Findings of the Court-

In terms of Section 36 of the A&C Act, an arbitral award is required to be enforced in accordance with the provisions of the CPC in the same manner as if it were a decree of the Court. Explaining the scope of Section 13 of the Commercial Courts Act which provides for appeals from decrees of Commercial Courts and Commercial Divisions, the Court observed that “in terms of Sub-section (1A) of Section 13 of the Commercial Courts Act, an appeal would lie to the Commercial Appellate Division against a judgment or order of the Commercial Court at the level of the District Judge, or as the case may be, of a Commercial Division of the High Court. However, proviso to Sub-section (1A) to Section 13 of the Commercial Courts Act expressly provides that an appeal shall lie from such orders passed by the Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the CPC as amended by the Commercial Courts Act and Section 37 of the A&C Act. Further, sub-section (2) of Section 13 of the Commercial Courts Act expressly prescribes an appeal against any order or decree of a Commercial Division or a Commercial Court other than in accordance with the provisions of the Commercial Courts Act.”

The Hon’ble Court further noted that undisputedly, the order passed by the learned Single Judge is not appealable under Section 37 of the A&C Act. It is also not one of the orders enumerated under Order XLIII of the CPC, from which an appeal lies. Therefore the Court held that “on plain reading of the proviso to Section 13(1A) of the Commercial Courts Act, the present appeal would not be maintainable”.

The Appellant placed reliance on a co-ordinate’s bench judgement of the Delhi High Court namely D&H India Ltd. v. Superon Schweisstechnik India Ltd.: FAO(OS)(COMM) 237/2019, decided on 16.03.2020 to contend that the proviso to Section 13(1A) of the Commercial Courts Act does not restrict the main provision and the same must be read in an expansive manner. The Hon’ble Court however noted that the observation of D&H India (supra) is in contravention to the decision of the Hon’ble Apex Court in Kandla Export Corporation and Ors. v. OCI Corporation and Ors.: (2018) 14 SCC 715, wherein the Hon’ble Court had authoritatively explained that the scope of appeal under Section 13(1A) of the Commercial Courts Act is controlled by the proviso to the said Sub-section.