Mr. Bhawarlal Hastimal Jagawat And ORS v. Shah Coal Private Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION [ COMMERCIAL DIVISION ] COMMERCIAL APPEAL FROM ORDER NO.17 OF 2024 ALONG WITH INTERIM APPLICATION NO.12985 OF 2024 IN APPEAL FROM ORDER IN SUMMONS FOR JUDGMENT NO.2 OF 2023 IN COMMERCIAL SUMMARY SUIT NO.87 OF 2022 Bhawarlal Hastimal Jagawat and Ors.

.. Appellants Vs.

Shah Coal Pvt. Ltd., Santacruz, Mumbai .. Respondent Mr. Rajan Malkani, Advocate for the Appellants. Mr. Tejas Gupta and Mr. Param Shah, Advocates, i/by Yasmin Bhansali & Co., for the Respondent.

CORAM : A.S. CHANDURKAR & RAJESH S. PATIL, JJ DATE : 20TH SEPTEMBER 2024 P.C. :

1.

The challenge raised in this appeal that has been filed under Section 13 of the Commercial Courts Act, 2015 is to the order dated 19th August 2024 that has been passed by the learned Judge, City Civil Court, Borivali Division at Dindoshi, Goregaon Mumbai in Summons for Judgment No.2 of 2023 granting conditional leave to defend the summary suit preferred by the respondent.

1/2 904-COMAO-17-2024 & IA-12985-2024-Corrected Order Pursuant to Speaking to Minutes Order dt. 21-10-2024.doc Dixit

2.

The learned counsel for the respondent raises a preliminary objection to the maintainability of the commercial appeal by urging that an order granting conditional leave to defend is not appealable under the provisions of Order XLIII Rule 1 of the Code of Civil Procedure, 1908. 3.

The objection as raised merits acceptance in the light of the provisions of Order XLIII Rule 1 of the Code. An appeal under Section 13(1A) of the Act of 2015 can lie only from such orders passed by the Commercial Courts that are appealable under Order XLIII Rule 1 of the Code and Section 37 of the Arbitration and Conciliation Act, 1996. Since the impugned order is not appealable under the aforesaid provisions, the commercial appeal is not maintainable.

4.

With liberty to the appellants to invoke such other remedy that is available in law, the appeal is not entertained. It is disposed of. In view thereof, pending Interim Application No.12985 of 2024 is disposed of as infructuous.

5.

At this stage, the learned counsel for the appellants seeks extension of time to deposit the amount in terms of the impugned order dated 19th August 2024. In the facts of the case, that time is extended by a period of two weeks from today.

[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ] Digitally signed by SNEHA ABHAY DIXIT Date:

2024.10.23 10:43:08 +0530 2/2 SNEHA ABHAY DIXIT 904-COMAO-17-2024 & IA-12985-2024-Corrected Order Pursuant to Speaking to Minutes Order dt. 21-10-2024.doc Dixit