SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd

SUMMONS FOR JUDGMENT NO. 84 OF 2019 IN COMMERCIAL SUMMARY SUIT NO. 887 OF 2019

WITH

INTERIM APPLICATION NO. 1803 OF 2020 IN COMMERCIAL APPEAL (L) NO. 96 OF 2020 1. Gujarat—Dwarka Portwest Ltd, A company incorporated under the Companies Act, 1956 having its registered office at 904-Labh, Shukan Tower, Opp. Judges Bungalows, Bokadev, Ahmedabad 380 054. Also at: SKIL House, 209, Bank Street Cross Lane, Fort, Mumbai 400 023. 2. Skil Infrastructure Ltd, SKIL House, Bank Cross Street Lane, Fort, Mumbai 400 023. 3. Nikhil Gandhi, 21, Sagar Villa, 38, Bhulabhai Desai Road, Mumbai 400 026. 4. Metropolitan Industries, 512, Vyapar Bhavan, 5th Floor, 49, P.D. Mello Road, Carnac Bunder Masjid, Mumbai 400 009, represented by its partners (i) Mr Nikhil Gandhi and (ii) Mr Bhavesh Gandhi. …Appellants (Orig Defendants)

SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd

~ versus ~ IL&FS Financial Services Ltd, A company incorporated under the provisions of the Companies Act, 1956, and having its registered office at the IL & FS Financial Centre, Plot No. C-22, G Block, Bandra-Kurla Complex, Bandra (East), Mumbai 400 051. …Respondent (Orig Plaintiff) APPEARANCES for the appellants/ Applicants Mr Kunal Mehta, with Manik Joshi, Mantul Bajpai, Vrushabh Vig, i/b Crawford Bayley & Co. for respondent Dr Birendra Saraf, Senior Advocate, with Ranjeev Carvalho, Sachin Chandarana, Archit Shah, i/b MKA & Co.

WITH

COMMERCIAL APPEAL (L) NO. 97 OF 2020 IN SUMMONS FOR JUDGMENT NO. 37 OF 2019 IN COMMERCIAL SUMMARY SUIT NO. 886 OF 2019

WITH

INTERIM APPLICATION NO. 1806 OF 2020 IN COMMERCIAL APPEAL (L) NO. 97 OF 2020

SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd

1. Gujarat—Dwarka Portwest Ltd, 904-Labh, Shukan Tower, Opp. Judges Bungalows, Bokadev, Ahmedabad 380054. Also at: SKIL House, 209, Bank Street Cross Lane, Fort, Mumbai 400 023. 2. Skil Infrastructure Ltd, SKIL House, 209, Bank Street Cross Lane, Fort, Mumbai 400 023. 3. Awaita Properties Pvt Ltd, SKIL House, 209, Bank Street Cross Lane, Fort, Mumbai 400 023. 4. Gajodhar Trading Co Pvt Ltd, Room No. 501, Shiv Smriti Housing Society Ltd, 5th Floor, Dr DB Marg, Mumbai 400 008. 5. Amkay Real Estate Pvt Ltd, 507, Vyapar Bhavan, 49, P. D’Mello Road, Carnac Bunder, Masjid (East), Mumbai 400 009. 6. Soothing Trading Co Pvt Ltd, 507, Vyapar Bhavan, 49, P. D’Mello Road, Carnac Bunder, Masjid (East), Mumbai 400 009. 7. Shantidoot Financial Services Pvt Ltd, 507, Vyapar Bhavan, 49, P. D’Mello Road, Carnac Bunder, Masjid (East), Mumbai 400 009.

SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd

8. Nikhil Gandhi, 21, Sagar Villa, 38, Bhulabhai Desai Road, Mumbai 400 026. 9. Metropolitan Industries, 512, Vyapar Bhavan, 5th Floor, 49, P.D. Mello Road, Carnac Bunder Masjid, Mumbai 400 009, represented by its partners (i) Mr Nikhil Gandhi and (ii) Mr Bhavesh Gandhi. ….Appellants (Orig Defendants) ~ versus ~ IL&FS Financial Services Ltd, A company incorporated under the provisions of the Companies Act, 1956, and having its registered office at the IL & FS Financial Centre, Plot No. C-22, G Block, Bandra-Kurla Complex, Bandra (East), Mumbai 400 051. …Respondent (Orig Plaintiff) APPEARANCES for the appellants/ Applicants Mr Venkatesh Dhond, Senior Advocate, with Kunal Mehta, Manik Joshi, Mantul Bajpai, Vrushabh Vig, i/b Crawford Bayley & Co. for respondent Dr Birendra Saraf, Senior Advocate, with Ranjeev Carvalho, Sachin Chandarana, Archit Shah, i/b MKA & Co.

SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd

CORAM : G.S.Patel & Gauri Godse, JJ. DATED : 22nd September 2022

1. All four Commercial Appeals are disposed by this common order and judgment. They arise from a single order dated 18th February 2020[2] made by NJ Jamadar J on four Summonses for Judgment in four Commercial Summary Suits. The Appellants are the original Defendants.

2. We will set out the facts in each case briefly to the extent necessary. 2.[1] Commercial Appeal (L) No. 95 of 2020: (Summons for Judgment No. 83 of 2019 in Commercial Summary Suit No. 923 of 2019): Jamadar J made an order granting conditional leave to defend upon Defendants Nos. 1 to 4 depositing in Court an amount of Rs. 43 crores within eight weeks. On that deposit being made, the defendants were entitled to file a written statement. If they did not, the suit was to be listed for directions after 10 weeks. 2.[2] Commercial Appeal No. 94 of 2022: (Summons for Judgment No. 30 of 2019 in Commercial Summary Suit No. 779 of 2019): Again, the Court granted conditional leave but on deposit of a sum of Rs. 233,16,04,691/within eight weeks. There were similar directions SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd regarding the filing of the written statement and for default. 2.[3] Commercial Appeal (L) No. 97 of 2020:(Summons for Judgment No. 37 of 2019 in Commercial Summary Suit No. 886 of 2019): Here, the deposit ordered was of Rs. 239,69,86,301/- as a condition precedent for leave to defend and to file the written statement. 2.[4] Commercial Appeal (L) No. 96 of 2020: (Summons for Judgment No. 84 of 2019 in Commercial Summary Suit No. 887 of 2019): Here conditional leave to defend was granted but on deposit of a sum of Rs.100,89,22,511/-. The remaining directions were identical.

3. At the hearing of the appeal, Dr Saraf learned Senior Counsel for the Respondent (the original Plaintiffs) makes a preliminary submission as to maintainability. He submits that none of these appeals are maintainable in view of the provisions of amended Section 13 of the Commercial Courts Act, 2015 (“CC Act”). The submission is opposed by Dr Tulzapurkar for some of the Appellants, and Mr Dhond and Mr Mehta for the others.

4. This is by no means the first appeal where such an objection as to maintainability under Section 13 has been taken. We will consider the decided case law in this regard. But before doing so, we note that these are perhaps the first cases where such an objection has been raised in appeals against an order on a Summons for Judgment granting conditional leave to defend after the 2018 Amendment to SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd the CC Act. To put this into perspective on basic principles, it is not disputed before us that if leave to defend is refused and the commercial summary suit is decreed, an appeal will lie. It is also undisputed that if unconditional leave to defend is granted, no appeal lies; the only remedy is to approach the Supreme Court in a Special Leave Petition. The in-between position, where conditional leave to defend is granted (usually on a deposit), is the controversy before us. Dr Saraf submits that no appeal lies from such an order even under the Code of Civil Procedure, 1908 (“CPC”), i.e., in a situation where the CC Act does not apply. It is most certainly barred under the CC Act. The earlier view that such an appeal is not barred under the CC Act is no longer good law.

5. Section 13 of the CC Act suffered an amendment in 2018. It would be instructive to contrast the wording of Section 13 as it originally stood and after its amendment by the Amendment Act, 2018 (28 of 2018) which came into effect on 3rd May 2018. As stood before the 2018 Amendment, Section 13 read: “Section 13: Appeals from decrees of Commercial Courts and Commercial Divisions.— (1) Any person aggrieved by the decision of a Commercial Court or Commercial Division of a High Court may appeal to the Commercial Division of that High Court within a period of sixty days from the date of judgment or order, as the case may be. 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 as amended SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd by this Act and Section 37 of the Arbitration and Conciliation Act, 1996.” (2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act.” (Emphasis added) After the 2018 amendment, Section 13 reads: “13. Appeals from decrees of Commercial Courts and Commercial Divisions.— (1) Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order. (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 as amended by this Act and Section 37 of the Arbitration and Conciliation Act. (2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act.”

6. This shows us that the original word ‘decision’ in Section 13(1) was substituted by the expression ‘Judgment or Order’. That is the change with which we are principally concerned. Notably unamended sub-Section (1) of Section 13 used the expression ‘judgment or order’ towards the end. But in describing what it was against which an appeal would lie, the word used was ‘decision’.

7. The 2018 amendment also introduced sub-Section (1A), and its proviso. Sub-Section 2 quoted above existed in Section 13 as it originally stood and was left unaltered by the 2018 amendment.

8. According to Dr Tulzapurkar, the 2018 amendment’s change to sub-Section (1) i.e., the introduction of the words ‘judgment or order’ and their replacement of the word ‘decision’, makes all the difference. According to him, the present appeals are therefore maintainable. He invites attention to certain definitions in the Code of Civil Procedure, 1908 (“CPC”). We set out the relevant definitions below: 8.[1] Section 2(2) defines a “decree” thus: 2(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 SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd 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 (b) any order of dismissal for default. 8.[2] ‘Judgment’ is defined in Section 2(9) as follows: 2(9) “Judgment” mean the statement given by the Judge on the grounds of a decree or order; 8.[3] Then Section 2(14) defines ‘Order’ in the following terms: 2(14) “order” means the formal expression of any decision of a Civil Court which is not a decree; 8.[4] The word ‘decision’ is not defined in the CPC at all.

9. The submission by the Appellants is that an order is that which is not a decree. Both decrees and orders are decisions of the court, formally expressed. The critical definition, according to Dr Tulzapurkar and Mr Dhond, is ‘judgment’. This is the statement given by the judge “on the grounds of” either a decree or an order.

10. Mr Dhond further submits that the definition of a decree itself has an intrinsic clue. That definition tells us that a decree determines the rights of the parties with regard to all or any of the matters in controversy — not matters in issue. SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd

11. The submission by Dr Tulzapurkar is slightly different from that made by Mr Dhond. Dr Tulzapurkar proceeds simply on the footing that if there is a judgment. i.e., a statement by the court setting out the grounds for either a decree or an order, then an appeal lies. He submits that there is no doubt that the decision of Jamadar J sets out grounds in support of his order, even assuming that the impugned decision does not partake of the nature of a decree but is only an order. The legislature, while effecting the 2018 amendment, must be presumed to have known and had in mind these distinct definitions. The word ‘judgment’ cannot be obliterated from Section 13. It must be given its proper meaning according to context and according to the provisions of the CC Act itself. That word has been used consciously. It is not possible on any canon of interpretation to ignore the word ‘judgment’.

12. He draws attention to Section 16 of the CC Act, which reads thus: “16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes.— (1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule. (2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1907), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value. (3) Where any provision of any rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail.”

13. In his submission, it is therefore clear that the words ‘judgment’, ‘decree’ and ‘order’ do not take any other colour or carry any meaning other than that attributed to them under the CPC. This is also clear, in his submission, from Section 2(2) of the CC Act which reads thus: “(2) The words and expressions used and not defined in this Act but defined in the Code of Civil Procedure, 1908 (5 of 1908) and the Evidence Act, 1872 (1 of 1872), shall have the same meanings respectively assigned to them in that Code and the Act.”

14. Dr Tulzapurkar’s submission is therefore simplicity itself. There is a judgment, he says; therefore an appeal lies. Nothing further needs to be discussed and none of the other provisions of Section 13 can take away from this position.

15. Mr Dhond’s argument is an expansion on this fundamental premise advanced by Dr Tulzapurkar. He carries it forward by saying that once a judgment has decided a matter in controversy (as opposed to a matter in issue), then it necessarily be a decree as defined under the CPC. There is no doubt that an appeal lies from a decree. The heading or marginal note of Section 13 itself speaks of appeals from decrees. On the impugned order, and he submits this will apply to every order granting conditional leave to defend where SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd there are stated reasons, whether or not leave should be granted is a jurisdictional question in the exercise of discretion of the trial court. The ‘matter in controversy’ is precisely whether or not leave to defend should be granted. The moment that matter in controversy is decided one way or the other, the result is a decree, except that if leave to defend is granted unconditionally, then there is, by settled law, no decree nor an appealable order. The reason for this is that the grant of unconditional leave does not conclusively determine any right of the parties. But the other two situations remain. If leave to defend is refused, then Order XXXVII of the CPC itself provides that a decree must follow. In this context he invites attention to the provisions of Order XXXVII Rule 3 of the CPC. The Rule reads:

3. Procedure for the appearance of defendant— (1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him. (2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service. (3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff’s pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff's pleader or of the plaintiff, as the case may be. (4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4-A in Appendix B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit. (5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just: Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defense to raise or that the defense intended to be put up by the defendant is frivolous or vexatious: Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court. (6) At the hearing of such summons for judgment,— (a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or (b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith. (7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit.”

16. In particular, he draws attention to sub-Rule 6(a) of Rule 3 of Order XXXVII of CPC. This tells us that if the defendant’s application for leave to defend is refused, the plaintiff is entitled to a ‘judgment’ forthwith. The use of the word ‘judgment’ in this sub- Rule, Mr Dhond submits, co-ordinates exactly with the definition under Section 2(9) of the CPC. This makes it clear that when leave to defend is refused, or is only conditionally granted, the result must be a decree.

17. We pause briefly to note an additional aspect. There is a slightly different circumstance that applies to this court on its Original Side. This is a Chartered High Court and it has a jurisdictional remit governed by the Letters Patent of this court. On its Original Side the High Court also has framed Rules. In its decision in Iridium India Telecom Ltd v Motorola, Inc & Ors,[1] the Supreme Court in terms held that, ordinarily, where there is a

SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd conflict between the provisions of the CPC and the Letters Patent, the latter must prevail. Intra-court appeals, i.e., appeals to the division bench of this court from the orders of the trial court on the Original Side, lie under Clause 15 of the Letters Patent. It reads thus: “15. Appeal to the High Court from Judges of the Court.— And We do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made on or after the first day of February one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from order judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided.”

18. Intra-court appeals from orders granting conditional leave have always been entertained under Clause 15 of the Letters Patent, Dr Tulzapurkar and Mr Dhond submit. Now, under the CC Act, an intra-court appeal may not lie, but certainly one against a ‘judgment’ must.

19. This structure is, Dr Saraf for the Respondents to the Appeal says, one that has been completely removed by the CC Act. There is no manner of doubt that the legislature was perfectly aware of the existence of Chartered High Courts and of the Letters Patent, and, consequently, of the provision for intra-court appeals under Clause 15 of the Letters Patent. This is why from Section 3 of the CC Act onwards there is a specific reference to High Courts exercising what is called the Ordinary Original Civil Jurisdiction, one that emanates from, and only from, the Letters Patent. This is clear from the two provisos to Section 3. This is also clear from the provisions of Section 4. Sections 3 and 4 of the Commercial Courts Act read thus: “3. Constitution of Commercial Courts— (1) The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Court at District level, as it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act: Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level: Provided further that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary. (1-A) Notwithstanding anything contained in this Act, the State Government may, after consultation with the concerned High Court, by notification, specify such pecuniary value which shall not be less than three lakh rupees or such higher value, for whole or part of the State, as it may consider necessary. (2) The State Government shall, after consultation with the concerned High Court specify, by notification, the local limits of the area to which the jurisdiction of a Commercial Court shall extend and may, from time to time, increase, reduce or alter such limits. (3) The State Government may, with the concurrence of the Chief Justice of the High Court appoint one or more persons having experience in dealing with commercial disputes to be the Judge or Judges, of a Commercial Court either at the level of District Judge or a Court below the level of a District Judge. 3-A. Designation of Commercial Appellate Courts. — Except the territories over which the High Courts have ordinary civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, designate such number of Commercial Appellate Courts at District Judge level, as it may deem necessary, for the purposes of exercising the jurisdiction and powers conferred on those Courts under this Act.

4. Constitution of Commercial Division of High Court.— (1) In all High Courts, having ordinary original civil jurisdiction, the Chief Justice of the High Court may, by order, constitute Commercial Division having one or more Benches consisting of a single Judge for the purpose of exercising the jurisdiction and powers conferred on it under this Act. (2) The Chief Justice of the High Court shall nominate such Judges of the High Court who have experience in dealing with commercial disputes to be Judges of the Commercial Division.”

20. If there was a doubt about this, Dr Saraf submits, it is eliminated by Chapter VI of the CC Act and specifically Section 16. In the schedule to the CC Act, there are several amendments to the CPC. It is the CPC as amended by the CC Act that applies to Commercial Courts and Commercial Divisions including Commercial Divisions in Chartered High Courts that have an Ordinary Original Civil Jurisdiction under their respective Letters Patent. Section 13 was always originally conceived as specifically excluding intra-court appeals under the Letters Patent. Section 13(2) contains a specific non-obstante clause. This non-obstante clause is not worded only in some general or generic sense, for example, like the ones that say, “notwithstanding any other law for the time being in force”. The exclusion is both general and specific and targeted. The CC Act applies not only notwithstanding any other law for the time being in force but also notwithstanding anything contained in the Letters Patent of our High Court. Section 13(2) makes it clear that no appeal lies from any order or decree of a Commercial Division or a Commercial Court except as provided in the CC Act.

21. A Civil Court, Dr Saraf submits, can really do only one of two things. It can pass a decree, or it can make an order. Either a decree or an order may receive a judgment, i.e., the reasons for such a decree or an order or, in the words of the CPC, a statement by the judge setting out the grounds for such decree or order. Every decree or order is a decision. A decision is, Dr Saraf submits, nothing more than what the court actually does when it passes an order. Decrees by their very nature are appealable. Orders are not, or at least, not necessarily.

22. An order under Order XXXVII of the CPC on a Summons for Judgment is not, in his submission, appealable even under the CPC. When a district court makes an order on a CPC granting conditional leave to defend, the remedy that is available to a defendant in such a case is perhaps to invoke the writ jurisdiction of this court under Articles 226 or 227 of the of the Constitution of India. This court on its Original Side has always entertained appeals from conditional orders made on Summonses for Judgment, but, he submits, and this is important, it has done so in, and only in, the exercise of its inherent powers and Ordinary Original Civil Jurisdiction under the Letters Patent; specifically, Clause 15 of the Letters Patent. The moment the Letters Patent is excluded by operation of the specific words of the CC Act, then, in his submission, there is simply no power for an appeal court to take up or entertain an appeal against an order of conditional deposit.

23. When confronted with the use of the word ‘judgment’ in amended Section 13(1) of the CC Act, Dr Saraf’s submission is that SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd this one word cannot possibly result in the proviso to the newly introduced Section 1A being rendered otiose. What the legislature did was restrict appeals even from orders to a certain class of orders. Only those orders that are mentioned in Order XLIII of the CPC as amended by the CC Act and appeals under Section 37 of the Arbitration Act remain appealable.

24. Order XLIII of the CPC reads thus: “1. Appeal from orders.—An appeal shall lie from the following orders under the provisions of Section 104, namely:— (a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court except where the procedure specified in rule 10A of Order VII has been followed (b) [ * * *]

(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte; (e) [* * *] (f) an order under rule 21 of Order XI; (g) [* * *] (h) [* * *]

(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement; (j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale; (ja) an order rejecting an application made under subrule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (l) of rule 105 of that Order is appealable; (k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

(l) an order under rule 10 of Order XXII giving or refusing to give leave;

(m) [* * *] (n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person; (o) [* * *] (p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV; (q) an order under rule 2, rule 3 or rule 6 of Order XXVIII; (r) an order under rule 1, rule 2, rule 2A, rule 4 or rule 10 of Order XXXIX; (s) an order under rule 1 or rule 4 of Order XL; (t) an order of refusal under rule 19 of Order XLI to readmit, or under rule 21 of Order XLI to re-hear, an appeal; (u) an order under rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate court; (v) [* * *] (w) an order under rule 4 of Order XLVII granting an application for review.

25. There is a Maharashtra amendment to Order 43: In exercise of the powers conferred under Section 122 of the Code of Civil Procedure Code, 1908 (Act V of

1908) and with the previous approval of the Government of Maharashtra the Hon’ble the Chief Justice and Judges are pleased to direct that the following amendment be made in rule 1(r) of Order XLIII of the Code of Civil Procedure Code, 1908, in supersession of the existing amendment made by the Bombay High Court on 1st October, 1983. After the amendment, the rule 1(r) will be as under:- “(r) An order under rule 1, rule 2, rule 2-A where disobedience or breach of injunction is held proved or attachment of property is ordered, rule 4, rule 10 or rule 11 of Order XXXIX.” 1A. Right to challenge non-appealable orders in appeal against decrees.— (1) Where any order is made under this Code against a party and there upon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.

2. Procedure.—The rules of Order XLI shall apply, so far as may be, to appeals from orders.”

26. Dr Saraf also invites our attention to the First Schedule to the CPC which contains the various orders. Order XX deals with judgment and decree. Order XX Rule 1 deals with judgments and their pronouncements. The word ‘judgment’ in Order XX must be understood in terms of its definition, i.e., the setting out of grounds. Order XLI of the CPC then deals with appeals and it is captioned ‘Appeals from Original Decrees’. Dr Saraf’s submission therefore is that it is not simply a judgment that is appealable. To read it as Dr Tulzapurkar suggests would be to drive a coach and four through the entire structure of the CC Act.

27. He has invited our attention to the Law Commission Report No. 235 of 29th January 2015 and to the Statements of Objects and Reasons or SOR of the CC Act. Clause (F)(iv) of Chapter III of the said Report reads thus:

(iv) Appeals

3.23.[1] The Bill presently provides for a direct appeal to the Supreme Court. This is proposed to be replaced with a provision, which mandates that there will be no appeals from orders of the Commercial Division or the Commercial Court save under Order XLIII of the CPC and from final judgments of the Commercial Division or Commercial Court. Such appeals will only be to the jurisdictional Commercial Appellate Division. 3.23.[2] It is further recommended that notwithstanding any other law, no civil revision application or petition shall be entertained against an interlocutory order of the Commercial Court, including an order on a jurisdictional challenge. The purpose here is to prevent the time frames stipulated for case management hearing from becoming redundant by the frequent filing of civil SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd revision applications and petitions against every interlocutory order. By removing a potential source of bottleneck of cases, the Bill hopes to ensure the expedited disposal of cases. 3.23.[3] Moreover, no appeals will be permitted from a finding of the Commercial Court or Commercial Division that the dispute in question is a commercial dispute inasmuch as there is no real prejudice caused to the parties when the Commercial Court or Commercial Division finds that the dispute is a commercial dispute.”

28. Clauses 14 and 15 of Chapter IV of the Report read thus: “14. Appeals from orders of Commercial Divisions and Commercial Courts (1) An appeal shall lie only 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 as amended by this Act and Section 37 of the Arbitration and Conciliation, 1996 and from no other orders. (2) Notwithstanding anything contained in any law or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act.

15. Appeals from decrees of Commercial Divisions and Commercial Courts An appeal shall lie to the Commercial Appellate Division of the jurisdictional High Court against every decree of a Commercial Division or Commercial Court, including a judgment on a claim.”

29. The Statement of Objects and Reasons of the Report reads thus: “6. It is proposed to introduced the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Bill, 2015 to replace the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015 which inter alia, provides for the following namely:

(i) constitution of the Commercial Courts at District level except for the territory over which any High Court is having ordinary original civil jurisdiction;

(ii) constitution of the Commercial Divisions in those

High Courts which are already exercising ordinary civil jurisdiction and they shall have territorial jurisdiction over such areas on which it has original jurisdiction;

(iii) constitution of the Commercial Appellate Division in all the High Courts to hear the appeals against the Orders of the Commercial Courts and the Orders of the Commercial Division of the High Court;

(iv) the minimum pecuniary jurisdiction of such

(v) to amend the Code of Civil Procedure, 1908 as applicable to the Commercial Courts and Commercial Divisions which shall prevail over the existing High Courts Rules and other provisions of the Code of Civil Procedure, 1908 so as to improve the efficiency and reduce delays in disposal of commercial cases.”

30. The principal purpose of the SOR is and always was to provide for the rapid disposal of a certain class of litigation, namely Commercial Disputes as defined under the CC Act. Not every suit is a Commercial Suit. It is possible that appeals that may lie elsewhere, whether under the Letters Patent or otherwise, may be maintainable but there are exclusions in pursuit of a public policy in the CC Act. These must be recognised. It is his submission that these have in fact been recognised — and expressly so — by at least four division bench judgments of this Court, each one binding upon us. The purpose was to ensure that commercial disputes are fast tracked and are not bogged down by constant and incessant appeals at every stage.

31. An appellant who can otherwise validly maintain a commercial appeal may assail all or any of the grounds that constitute the judgment. But how is it possible, Dr Saraf asks, that Dr Tulzapurkar can assail the judgment, i.e., the grounds set out by the judge, but not the resultant order? This is a logical impossibility. The right to challenge a particular finding or ground does not confer an additional jurisdiction that is otherwise specifically barred under Section 13. An interpretation such as the one that Dr Tulzapurkar and Mr Dhond canvassed would result in Section 13’s prohibitions and restrictions being rendered nugatory and would be contrary to the legislative intent.

32. His submission is, in fact, that the Defendants have nothing to fear. If they make the deposit, they will have leave to defend. They will file their written statements. Issues will be struck. The suit will then proceed to trial, and the plaintiffs may succeed or fail. If the suit is dismissed, the Defendants will get the deposits back. That is SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd one course of option that is available to them. The other, one that is equally possible, is for the Defendants not to make the deposit. The failure to make a deposit has only one inevitable consequence in law under the frame of Order XXXVII. There will be a resultant decree and that decree is undoubtedly appealable. The in-between position, where the order of conditional deposit is made appealable, is a creature entirely unknown to law, whether under the CC Act or even under the CPC. He submits that the proposition canvassed by Mr Dhond has only to be stated to be rejected. If what Mr Dhond says is correct, then every single order of conditional leave on a Summons for Judgment is axiomatically and by definition a decree whether or not it is in the Commercial Division and covered by the CC Act or simpliciter under the CPC. Thus, even a non-commercial summary suit on a Summons for Judgment in which there is a conditional order would be appealable even under the CPC and this has never been anybody’s case at least since 1908.

33. Finally, Dr Saraf points out that within the CC Act there is material to indicate that this Act is designed to prevent appeals at every stage of a suit. He refers to Section 8 of the Commercial Courts Act, which reads: “8. Bar against revision application or petition against an interlocutory order.— Notwithstanding anything contained in any other law for the time being in force, no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, and any such challenge, subject to the provisions of Section 13, shall be raised only in an appeal against the decree of the Commercial Court.”

34. This plainly says that any challenge against an interlocutory order including a jurisdictional challenge can only be raised in an appeal from a decree.

35. Dr Saraf also points out that the decision of the Supreme Court in Shah Babulal Khimji v Jayaben D Kania[2] in paragraph 109 and elsewhere actually specifically mentioned orders under Order XXXVII of the CPC as an instance where no regular civil appeal lies, but an appeal lies only under the Letters Patent.

36. Dr Saraf draws attention to paragraphs 15 to 18 of the Supreme Court decision in Smt Ganga Bai v Vijay Kumar & Ors[3] regarding the right of appeal against a mere finding. The Supreme Court observed: “15. It is thus clear that the appeal filed by defendants 2 and 3 in the High Court was directed originally not against any part of the preliminary decree but against mere finding recorded by the trial court that the partition was not genuine. The main controversy before us centers round the question whether that appeal was maintainable on this question the position seems to us well-established. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one’s peril, bring a suit of one’s choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite

SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.

16. Under Section 96(1) of the Code of Civil Procedure, save where otherwise expressly provided by the Code or by any other law for the time being in force, an appeal lies from every decree passed by any court exercising original jurisdiction, to the court authorised to hear appeals from the decisions of such court. Section 100 provides for a second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court. Section 104(1) provides for appeals against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law for the time being in force an appeal shall lie “from no other orders”. Clause (i) of this Section provides for an appeal against “any orders made under Rules from which an appeal is expressly allowed by rules”. ‘Order 43, Rule 1 of the Code, which by reason of clause (i) of Section 104(1) forms a part of that Section, provides for appeals against orders passed under various rules referred to in clauses (a) to (w) thereof, Finally, Section 105(1) of the Code lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a court in exercise of its original or appellate jurisdiction.”

17. These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43 Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. It must follow that First Appeal No. 72 of 1959 filed by Defendants 2 and 3 was not maintainable as it was directed against a mere finding recorded by the trial court.

18. The High Court mixed up two distinct issues: one, whether it was competent to Defendants 2 and 3, if they were aggrieved by the preliminary decree to file an appeal against that decree; and two, whether the appeal such as was filed by them was maintainable. If it be correct that Defendants 2 and 3 could be said to have been aggrieved by the preliminary decree, it was certainly competent for them to challenge that decree in appeal. But they did not file an appeal against the preliminary decree and therefore the question whether they were aggrieved by that decree and could file an appeal therefrom was irrelevant. While deciding whether the appeal filed by Defendants 2 and 3 was maintainable, the High Court digressed into the question of the competence of Defendants 2 and 3 to file an appeal against the preliminary decree and taking the view that it was open to them to challenge that decree even though the suit was wholly dismissed against them, the High Court held that the appeal, which in fact was directed against a finding given by the trial court, was maintainable. If the High Court had appreciated that the two questions were distinct and separate, it would not have fallen into the error of deciding the latter question by considering the former.”

37. There is also reference to paragraph 28 of the Supreme Court decision in Vidyacharan Shukla v Khubchand Baghel & Ors.[4] This deals with the CPC definition of a judgment and says that a judgment is the statement of setting out of the reasons while an order is the formal expression of the decision. 4 (1964) 6 SCR 129.

38. In Bhinka & Ors v Charan Singh,[5] the Supreme Court cited the authoritative text Maxwell on Interpretation of Statutes in regard to the headings used in a statute. It is true that the headings cannot control the plain language of the statute but if there is an ambiguity, reference may be legitimately made to the heading itself. Dr Saraf also in this context references the decision of the Supreme Court in Raichurmatham Prabhakar & Anr v Rawatmal Dugar,[6] in paragraph 14 for the same proposition.

39. On the question of maintainability under Section 13, Dr Saraf invites our attention to decisions of the division bench of this court in Smt Sushila Singhania & Ors v Bharat Hari Singhania & Ors,[7] Shailendra Bhadauria and Ors v Matrix Partners India Investment Holdings LLC & Ors[8] and in Kakade Constructions Co Pvt Ltd v Vistra ITCL (India) Ltd,[9] as also the decision of the Supreme Court in Kandla Export Corporation & Anr v OCI Corporation & Anr.10

40. The Sushila Singhania decision appears to us to be entirely apposite. The division bench considered at great length the conspectus and genesis of the CC Act. It examined the ambit of that Act. In paragraph 19, it set out several questions that fell for decision. This was in the context of Section 13 before its 2018 amendment. A specific question was whether the word ‘decision’ in 5 1959 Supp (2) SCR 798.

Section 13 as it originally stood meant — and only meant — decree. This was answered in the affirmative. Another question that arose was whether a decision in the form of an order was appealable only under the conditions given in the proviso to unamended Section 13. That again was answered in the affirmative. Of particular interest is the next question as to whether the word ‘decision’ included any decree or order that had the effect of finality or was a final adjudication of the rights of parties. This question was answered in the negative. Now, even after the 2018 amendment, the validity of the answers to these questions remains. There is no material before us to suggest that the framers of the 2018 amendment sought to overcome the Bombay High Court decision in Sushila Singhania, or to expand the ambit of Section 13 to include within its sweep now appeals that were previously not maintainable. As Dr Saraf points out, the answer to the third question in Sushila Singhania (actually numbered as question no. 4) completely addresses the submission made by Mr Dhond.

41. The next judgment of the Division Bench in Shailendra Bhadauria was one that dealt with an almost identical situation. Those commercial appeals arose from an order made in a Chamber Summons in execution, the execution proceedings themselves arising from arbitral proceedings. The Division Bench considered at great length the previous law including the Sushila Singhania decision. During this, the Shailendra Bhadauria decision, which was after the 2018 amendment, also held that two earlier views expressed in Hubtown Ltd v IDBI Trusteeship Service Ltd11 and in

42. This finding is crucial, because Hubtown was an appeal from an order of conditional leave (by deposit) on a Summons for Judgment in a Commercial Summary Suit. That court held the appeal to be maintainable. Siqmarq Technologies, also before the 2018 Amendment to the CC Act, considered Sushila Singhania and Hubtown. The Division Bench was shown both earlier decisions: Sushila Singhania that said appeals of this stripe were not maintainable, and the earlier decision to the contrary in Hubtown. The Siqmarq Technologies case arose, incidentally, from an order made on a limited question of territorial jurisdiction, one that did not, the Division Bench said, determine the rights of the parties. But in Siqmarq Technologies, the Division Bench was clearly told that Sushila Singhania was per incuriam. It was a later judgment than Hubtown, but other than noticing that Hubtown was cited, the Sushila Singhania decision did not deal with it, nor did it follow it. Hubtown was said to be binding on the Division Bench hearing Sushila Singhania, being a judgment of a bench of coordinate strength. Dealing with this, the Division Bench hearing Siqmarq Technologies said: “87. As we have already held above, Hubtown was an appeal arising from an order passed by the learned single Judge granting conditional leave to defend a Summary Suit. The Hon’ble Division Bench deciding Hubtown also had before it a judgment of the Hon’ble Supreme Court in the case of Midnapore Peoples’ Co-op.

Bank Ltd. v. Chunilal Nanda reported in (2006) 5 SCC 399: AIR 2006 SC 2190. After referring to the Act 4 of 2016, and particularly Summary Suits and unamended Code of Civil Procedure, 1908, the Court proceeded to consider the scheme of Commercial Courts Act in paragraphs 15, 16 and

17. Then, in paragraph 20, the Division Bench in Hubtown analysed section 13 and concluded that appeals will lie to Commercial Appellate Division against the decision of the Commercial Court or Commercial Division. With greatest respect, though the Division Bench referred to section 13(1) of the Act 4 of 2016, that provides for an appeal to the Commercial Appellate Division of the High Court against the decision of the Commercial Court or Commercial Division of a High Court by any person aggrieved. That is how the Division Bench in Hubtown concluded that these words, namely, ‘decision’, ‘judgment’, ‘order’, ‘decree’ as such are not defined. Some of them are defined and elaborated in the Code of Civil Procedure,

1908. The observations in paragraph 21 would indicate that the Division Bench held that the language of section 13(1) is such that it includes judgment or order and read with sections 8, 13(2), it includes decree of the Commercial Court or Commercial Division. Then, in the proviso below sub-section (1) of section 13, it is stated that an appeal shall lie from such orders passed by a Commercial Division or Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908, as amended by the Act 4 of 2016 and section 37 of the Arbitration & Conciliation Act, 1996. Thus, it is apparent that the difference between the language in sub-section (1) and that of the proviso was very much present to the mind of both Division Benches deciding Hubtown and Smt. Sushila Singhania. Their understanding of section 13(2) was that other than the Act 4 of 2016, insofar as the matters covered SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd by that enactment are concerned, no appeal shall lie from any order or decree of a Commercial Division or a Commercial Court, otherwise than in accordance with the provisions of Act 4 of 2016. The Division Bench in Hubtown, therefore, concluded that where the Commercial Division has taken a decision and/or passed the judgment and/or order or decree, an appeal will lie. That is how paragraph 22 in Hubtown reads. In paragraph 23, the Division Bench says that appeal against any final decision, including judgment by the Commercial Court and/or Commercial Division will not invite the proviso as the proviso refers to orders. The reference to orders in the opening portion of sub-section (1) of section 13 would relate to the application of the proviso to subsection (1). However, the opening portion of sub-section (1) (words prior to the proviso) uses the words ‘decision’, ‘judgment’ and ‘order’. This part of the provision is quite broad when it comes to appeal arising out of the orders other than the categories of orders falling under Order XLIII of the Code of Civil Procedure, 1908. Thus, so long as it is an order, but which has a tinge or colour of judgment, then, an appeal under section 13(1) would be maintainable. The provisions of the Code of Civil Procedure (amended and unamended) are applicable to Commercial Courts Act proceedings. The term ‘judgment’ was not defined even in the Letters Patent. Therefore, even if it is an interlocutory order of granting defendants conditional leave to defend a Summary Suit as it directly affects and loses the valuable right of the defendant without giving full opportunity, that order is appealable. It is a judgment.”

43. But in Shailendra Bhadauria, the Division Bench specifically held that neither Hubtown nor Siqmarq Technologies could any longer be said to be good law. “44. Now, the Commercial Courts (Amendment) Act, 2018 amends the Act 4 of 2016 and deletes the word “decision” from Section 13. We have already reproduced it above. Thus, the earlier view in Hubtown Limited (supra) and Siqmarq Technologies (supra) will have to give way and all the more after the Judgments of the Hon’ble Supreme Court delivered in the case of Fuerst Day Lawson Limited v. Jindal Exports Limited, reported in (2011) 8 SCC 333 and the authoritative and binding pronouncement in the case of Kandla Export Corporation (supra). The statute has to confer a right of appeal. That has to be conferred in clear words. We cannot, as suggested by Mr. Andhyarujina, by an interpretative process carve out a right of appeal, when the law is not creating it.”

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 SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd 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).13

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.

47. The appellants rely on paragraph 10 of a decision of a Division Bench in Resilient Innovations Private Limited v Phonepe This arose from an order in a commercial suit, which permitted the plaintiff to withdraw the suit with certain liberty. The argument before the court was that the appeal was maintainable under Section 13 since the order permitting a withdrawal was a ‘judgment’ and a ‘decree’ within the meaning of the CC Act. In paragraphs 17 to 23, the division bench dealt with the

SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd submission before it. It held that the word ‘judgment’ in Section 13 takes its meaning from the definition in Section 2(9) of the CPC. We agree. In paragraph 22, the Division Bench held that an appeal from a decree does lie under Section 13. That again is correct. What was rejected was the submission that a ‘decree’ for the purpose of Section 13 of the CC Act is ‘more restrictive’ than a decree under the provisions of the CPC. Again, we agree with the Resilient Innovations Division Bench. We do not see how this decision in any way assists the Appellants. The binding decisions to which we have referred do not seem to have been considered or applied in Resilient Innovations.

48. We are unable to see the distinction that Dr Tulzapurkar and Mr Dhond draw between these cited and binding decisions that hold the field and the present order. Hubtown held that an appeal from an order of conditional leave to defend in a Summons for Judgment was maintainable. Shailendra Bhadauria held that Hubtown was no longer good law; i.e., that an appeal does not lie from an order of conditional leave to defend on a Summons for Judgment. This really should be the end of the matter. Indeed, every argument that Dr Tulzapurkar and Mr Dhond make, including the submissions that an appeal lies against a ‘judgment’, has been negatived in Shailendra Bhadauria. That was the earlier view in Hubtown and Siqmarq Technologies; both have been held in Shailendra Bhadauria not to be good law.

49. As we have noted above, Mr Dhond’s submission unacceptably enlarges the scope of appeals even beyond what the CPC intends. It is inconceivable that the CC Act would expand the scope of appeals even beyond the CPC. There is nothing whatsoever to support this. We also cannot see the logical basis or foundation for Dr Tulzapurkar’s submission that even though there may not be a ‘decree’ properly so called, a judgment in and of itself, i.e., the statement of reasons, should be deemed to be some sort of a decree and should be held to be appealable.

50. We accept Dr Saraf’s formulations on all four grounds. First, that plain language of Section 13 must be followed. Second, that there is no material to indicate that the 2018 amendment was conceived as an enlargement of the appellate jurisdiction. Third, that all previous applicable decisions of this court and of the Supreme Court, not one of them distinguished by the Appellants, are binding on this court on any principles of doctrines of stare decisis. Fourth, that the Appellants’ rights are not in fact in any way determined.

51. The last point requires emphasis once again because we find much substance in it. This is where Dr Saraf says that the defendants have a choice either to await the outcome of the suit subject to fulfilment of the condition of deposit, or to not follow the condition of deposit, suffer a decree and then come in appeal. It is no answer for the appellants to say that if they come in appeal, they will be forced to deposit. As he points out, the condition in a Summons for Judgment as also a condition for stay of a decree would be deposit not payment. There is a material difference. Further there is a Maharashtra amendment to Order XLI Rule 1 of the CPC SKIL Himachal Infrastructure & Tourism Ltd & Ors v IL&FS Financial Services Ltd which specifically allows the court to exercise its discretion to dispense with the deposit or security where it deems fit and for sufficient cause even in an appeal against a money decree. None of these rights are taken away. It is impermissible, he therefore says, to inject a further right of appeal simply because there is an order of conditional deposit on a Summons for Judgment.

52. Our conclusions are: 52.[1] An appeal from an order granting conditional leave to defend in a Summons for Judgment in a Commercial Summary Suit is not maintainable in view of Section 13 of the Commercial Courts Act. 52.[2] No appeal under Clause 15 of the Letters Patent is maintainable under Section 13 of the Commercial Courts Act, i.e., in a Commercial Suit. 52.[3] Section 13 of the Commercial Courts Act permits only appeals (i) against decrees; (ii) against orders specifically enumerated in Order 43 of the Code of Civil Procedure, 1908; and (iii) under Section 37 of the Arbitration Act.

53. For these reasons, we hold that none of these appeals are maintainable. All four are dismissed. Under the CC Act, ordinarily costs would have had to be imposed; if not, reasons are required. Since these appeals have been argued on a question of law, we decline to make an order of costs.

54. In view of disposal of appeals, all pending Interim Applications stand disposed of. (Gauri Godse, J) (G. S. Patel, J)