Delhi High CourtSatish Seth & Ors. Since Deceased ... vs Indu Kapoor & Ors. on 8 March, 2021Author:Rajiv Sahai EndlawBench:Rajiv Sahai Endlaw,Amit Bansal$~26\n*    IN THE HIGH COURT OF DELHI AT NEW DELHI\n+    FAO (COMM) 64/2021\n     SATISH SETH (SINCE DECEASED THROUGH HIS LRS.)\n     & ORS.                                     ..... Appellants\n                    Through: Mr. Shahid Ali, Adv.\n                         Versus\n     INDU KAPOOR & ORS.                         ..... Respondents\n                    Through: Mr. Rohan Ganpathy, Adv. for R-1 to\n                                R-7.\nCORAM:\nHON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW\nHON'BLE MR. JUSTICE AMIT BANSAL\n                          ORDER%                         08.03.2021\n[VIA VIDEO CONFERENCING]\nCM No.9416/2021 (for exemption)1.    Allowed, subject to just exceptions and as per extant rules.2.    The application is disposed of.FAO (COMM) No.64/20213.    This proceeding, given the nomenclature of 'FAO(COMM) ' impugns\nthe order dated 16th January, 2021 of the Additional District Judge-03\n(Central), Tis Hazari Courts, Delhi in CS No.6369/2018, of rejecting the\nobjection of the appellants/defendants to the admission of the suit, on the\nground of being barred by limitation.4.    The appeal has been preferred, invokingSection 13of the\nCommercial Courts Act, 2015.5.    We have enquired from the counsel for the appellants, whether not\nunderSection 13supra, appeals can be entertained only from orders of the\nCommercial Court and whether not such appeals can be only those which lie\nunderOrder XLIII Rule 1 of the Code of Civil Procedure, 1908 (CPC).FAO (COMM) 64/2021                                                   Page 1 of 3UnderOrder XLIII Rule 1 of the CPC, rejection of a plea underOrder VII\nRule 11 of the CPC, is not appealable.6.      The counsel for the appellants has referred toArun Dev Upadhyaya\nVs. Integrated Sales Service Limited(2016) 9 SCC 524 to contend that as\nper the said dicta, an appeal underSection 13of the Act lies also against the\norders which have the character of a judgment i.e. which have attained\nfinality.7.      We have perused the aforesaid judgment and neither find the same to\nbe applicable nor find the same to be holding what the counsel for the\nappellant contends. Supreme Court, inBGS SGS Soma JV Vs. NHPC Ltd.(2020) 4 SCC 234 has held that orders that are not specifically enumerated\nunderOrder XLIII of the CPCwould not be appealable before the\ncommercial division underSection 13of the Commercial Courts Act, 2015.8.      Be that as it may, underSection 13of the Act, we are authorised to\nhear only appeals against the orders of the Commercial Court. Else, against\nan order of rejection of a plea underOrder VII Rule 11 of the CPCin an\nordinary (non-commercial suit), the remedy would be ofArticle 227of the\nConstitution of India.9.      The counsel for the appellants states that the appellants had earlier\nfiled CS(COMM) No.515/2016 in this Court but plaint therein was returned\nto the appellants for filing in the Court of appropriate pecuniary jurisdiction\nand whereafter the suit from which this appeal arises was instituted.\nAttention is invited to the order dated 11th May, 2016 in CS(COMM)\nNo.515/2016, of return of the plaint, for filing in a Commercial Court. It is\nthus contended that the suit from which this appeal arises, is a commercial\nsuit.FAO (COMM) 64/2021                                                   Page 2 of 310.   We are unable to agree. The fact of the matter is, that the suit is not\npending before the Commercial Court but before an Ordinary Court, and this\nappeal would not be maintainable.11.   We have during the hearing also telephonically confirmed from the\nworthy Registrar General of this Court, that the concerned Court is not a\nCommercial Court.12.   The appeal is thus rejected as not maintainable. The appellants of\ncourse would have remedies in accordance with law.RAJIV SAHAI ENDLAW, J.AMIT BANSAL, J.MARCH 8, 2021\n'bs'..FAO (COMM) 64/2021                                                 Page 3 of 3