Commercial Courts Act | Section 13(2) Contains Non-Obstante Clause Which Does Not Provide For Second Appeals: Kerala High Court

The Kerala High Court recently considered the maintainability of a second appeal filed under the Commercial Courts Act. The issue before the Court was, “whether second appeal is provided from the appellate decree and judgment passed by a Commercial Appellate Court?”Justice A. Badharudeen, dismissing the second appeal as not maintainable observed thus: “..If so, Commercial Courts Act does not provide second appeal. Therefore, it has to be held that the present second appeal filed, challenging the decree and judgment of the Commercial Appellate Court, is not maintainable and the same deserves dismissal.” This Miscellaneous Second Appeal was filed under Section 13(1A) of the Commercial Courts Act read with Section 100 and Order XLII Rule 1 CPC. The maintainability of the second appeal filed under the Commercial Courts Act was under challenge. The Counsel for the plaintiff submitted that as per the Commercial Courts Act, there are no provisions incorporated for filing a second appeal which is in in tune with Section 100 read with Order XLII of CPC. On the other hand, the Government Pleader Denny K Devassy submitted that even though the Commercial Courts Act does not have provisions for filing a Second Appeal, there should be an appropriate forum for deciding substantial questions of law. He argued that the second appeal was maintainable as per Section 100 read with Order XLII of CPC substantial questions of law were involved. The Court analyzed Section 13 of the Commercial Courts Act which provides appeals from decrees of commercial courts and commercial divisions. It also referred to Section 16 of the Commercial Courts by which amendments were made in the CPC. Perusing the above, it was observed that no provisions were incorporated regarding the Second Appeal. “On perusal of the schedule showing amendment of CPC, no amendment incorporated insofar as Section 100, Order XLII and Order XLIII”, the Court stated. Additionally, the Court also observed that the Commercial Courts Act have an overriding effect over other laws. It also held that Section 13 (2) of the Commercial Courts Act also has a non-obstante clause which bars appeals, unless it is provided by the Act. “To be on the question posed, the legislature, in its wisdom, introduced a non-obstante clause in sub-section (2) of Section 13 of the Commercial Courts Act, limiting right of appeals subject to the provisions of the Commercial Courts Act and no appeal shall lie from any order or decree of a Commercial Division or Commercial Court, otherwise than in accordance with the provisions of the Commercial Courts Act”, the Court stated. Accordingly, the Court dismissed the second appeal as not maintainable. Counsel for the respondents: Advocates A Komu, T B SivaprasadCitation: 2024 LiveLaw (Ker) 33Case title: State of Kerala v Dr Praveen Kumar T K Case number: MSA NO. 29 OF 2023Click Here To Read/Download The Judgment

Commercial Courts Act | Section 13(2) Contains Non-Obstante Clause Which Does Not Provide For Second Appeals: Kerala High Court

Tellmy Jolly

Tags