APPLICABILITY OF ORDER IX RULE 7 OF CIVIL PROCEDURE CODE IN A COMMERCIAL SUIT

[Mr. M. GOVINDARAJAN]

In M/S AXIS GLOBAL AUTOMATION, S. SATHESH AND A. EZHILMARAN VERSUS M/S TONGLIT AUTOGISTIC PRIVATE LIMITED - 2024 (9) TMI 1015 - MADRAS HIGH COURT, Tonglit Autogitic Private Limited filed a suit against Axis Global Automation before the Commercial Court for the recovery of money due to it and also for damages.  The case was decided against as ex-parte in the absence of the petitioner herein on 13.08.2023.  The case was posted on 18.09.2023.  The petitioner filed a petition before the Commercial Court to set aside the ex-parte order. The said petition was returned to the petitioner with remarks ‘how this petition is maintainable to be stated in the Commercial Act.  The petitioner filed the reply.  Again, the petitioner was returned with the same remarks.

Being aggrieved the order of the Commercial Court, the petitioner filed the present revision petition for setting aside the ex-parte order under Order IX, Rule 7 of Criminal Procedure Code.  This petition is also returned to the petitioner with the remarks ‘How this petition is maintainable under Order IX Rule 7 of CPC in Commercial Act and only appeal can lie?’.

The petitioner contended the following submissions before the High Court-

• Section 13 of the Commercial Act prescribes the kind of orders against which appeal would li.
• The proviso under Section 13-A of the Act provides that appeal shall lie on such orders specifically mentioned under order 43 of Civil Procedure Code.
• Order 43 of Civil Procedure Code does not provide an appeal from the order of setting ex-parte order under Order IX, rule 6(a) of Civil Procedure Code.
• The Commercial Act does not provide any provision for setting ex-parte or setting aside the ex-parte order.
• But the said Act does not preclude applicability of Order IX Rule 7 of Civil Procedure Code in the Commercial Suit.

The High Court heard the submissions of the petitioner and analyzed the materials on record.  The High Court analyzed the provisions of Section 13 of the Commercial Courts Act, 2015 and also section 43 of the Civil Procedure Code.

Section 13 of the Commercial Courts Act provides that any person aggrieved by the judgment or order of a Commercial Court below the level of District Judge may file appeal to the Commercial Appellate Court within a period of 60 days from the date of the judgment or order.  Any person aggrieved against the order of a Commercial Court at the level of District Judge, appeal may be filed before the Commercial Division of the High Court within a period of 60 days from the date of the judgment or order.

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 Civil Procedure Code.  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 Commercia Courts Act. 

Section 43 of the Civil Procedure Code provides for execution of decrees passed by Civil Courts in places to which the Civil Procedure Code does not apply.  The said section provides that any decree passed by Civil Court established in any part of India to which the provisions of Civil Procedure Code do not extend, or by any Court established or by any Court established or continued by the authority of the Central Government outside India may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the territories to which the Code extends.

The High Court observed that according to Section 13 of the Commercial Courts Act the appeal will lie only for the orders passed by the Commercial Court that has been specifically enumerated under Order 43 of the Civil Procedure Code.  But in order 43 of the Civil Procedure Code, there is no provision for appeal to set aside the ex-parte order under Order IX Rule 7 of the Civil Procedure Code.  The High Court held that since the Commercial Courts Act does not preclude the applicability of Order IX Rule 7 of the Civil Procedure Code in the commercial suit, the impugned order is liable to be set aside. 

The High Court allowed the revision petition and set aside the order.  The High Court directed the Commercial Court to take on file the petition filed by the petitioners under Order IX Rule 7 and dispose the same on merits.