Commercial Courts Act Applies To Suits Filed Before 2015 Even If Re-numbered Later: Delhi High Court

The Delhi High Court on Friday held that the Commercial Courts Act, 2015 applies to commercial suits instituted before the law came into force on October 23, 2015, even if they were converted or re-numbered as commercial suits later.

The majority also held that the Act took away the right to appeal against orders that are not made appealable under its restricted appeal mechanism.

A three-judge Bench comprising Justice V Kameswar Rao, Justice Chandrasekharan Sudha and Justice Amit Mahajan was answering a reference arising from conflicting Division Bench decisions in Brahmos Aerospace Pvt. Ltd. v. FIIT JEE Ltd. and Samsung Leasing Ltd. v. Samsung Electronics Co. Ltd.

The reference arose from an appeal filed by Yes Bank against a 2019 order allowing Modi Rubber's application under Order VI Rule 17 of the Code of Civil Procedure (CPC) to amend its plaint. Modi Rubber had instituted the suit in 2014 seeking recovery of ₹33.13 crore from Yes Bank.

The dispute arose from credit facilities extended by the bank to Modi Rubber's wholly owned subsidiary for a proposed joint venture with Continental AG. Yes Bank had initially extended a ₹100 crore credit facility in 2009, which was increased to ₹130 crore in 2010.

After Continental BV acquired the subsidiary in 2011, Yes Bank closed the credit facility and debited ₹7.16 crore towards facility structuring and advisory fees.

The suit remained an ordinary civil suit after the Commercial Courts Act came into force in October 2015. Modi Rubber later sought to amend its plaint, and the Single Judge allowed the application in March 2019. Yes Bank then challenged the order before a Division Bench.

The Division Bench later questioned whether the appeal was maintainable under Section 13 of the Commercial Courts Act, which restricts appeals against orders of Commercial Courts and Commercial Divisions to those permitted under the Act. Such appeals can be filed against orders specifically listed under Order XLIII of the CPC.

An order allowing an application to amend a plaint under Order VI Rule 17 is not among the orders listed under Order XLIII.

Yes Bank argued that its right to appeal had accrued when the suit was instituted in 2014 and could not be taken away by a law enacted later. Modi Rubber opposed the appeal, arguing that the Commercial Courts Act applied to the dispute and that an order allowing amendment of a plaint was not appealable under the restricted appeal mechanism.

The majority opinion, authored by Justice V Kameswar Rao with Justice Chandrasekharan Sudha concurring, held that the Commercial Courts Act applies to pending commercial suits from the date it came into force. Section 15 of the Act provides for the transfer of pending suits involving commercial disputes to the Commercial Division or Commercial Court.

The majority held that formal renumbering of such suits by the Registry is only a ministerial or clerical step and cannot determine when the Act becomes applicable.

“Hence, it must be held that from 23.10.2015, in respect of a suit instituted prior to the operation of the Commercial Courts Act, the provisions of the Act, including Section 13, would apply, notwithstanding the date on which the suit was converted or re-numbered into a commercial suit,” the majority held.

The majority rejected Yes Bank's argument that its earlier right to appeal remained protected because the suit was instituted before the Commercial Courts Act came into force.

It held that the right to appeal is a statutory right and can be taken away by subsequent legislation where the legislative intent to do so is clear. The majority found that the Commercial Courts Act intended to restrict appeals in commercial matters to orders specifically made appealable under Order XLIII.

“A conjoint reading of Section 13(2), Section 15, Section 21, and Section 23 of the Act would therefore, lead to the conclusion that the right of an appeal against an order not enumerated under Order XLIII of the CPC which may have been available to the litigant prior to 23.10.2015, has been taken away by the Commercial Courts Act,” it held.

The majority therefore held that Brahmos Aerospace was not good law to the extent that it held Section 13 did not apply to suits pending when the Commercial Courts Act came into force merely because they were re-numbered as commercial suits later. It affirmed the view taken in Samsung Leasing.

Justice Amit Mahajan agreed that the present appeal was not maintainable but did not agree entirely with the majority's reasoning on the wider applicability of Section 13.

He drew a distinction between a suit pending before a court that itself has jurisdiction to hear commercial disputes and one pending before an ordinary civil court without such jurisdiction.

Justice Mahajan observed that where the court hearing the suit is itself vested with jurisdiction to adjudicate commercial disputes, the absence of formal renumbering does not prevent the Commercial Courts Act from applying.

However, where a commercial dispute continues before an ordinary Civil Judge without commercial jurisdiction, an order passed before the suit is transferred would not become subject to Section 13 merely because the suit was later transferred and re-numbered.

“Ex facie, the applicability of the restriction on the right to appeal as encompassed in Section 13 of the Commercial Courts Act is limited to only those orders and judgments which are passed by a Commercial Court or Commercial Division. The very language employed in the said provision coupled with the title of the provision lends to this interpretation. Thus, prior to transfer and renumbering of the suit, any order which is passed in the suit would be passed by a Court exercising original civil jurisdiction, and the same in my opinion would fall outside the bar prescribed in Section 13 of the Commercial Courts Act. That is to say, if an order is passed after the Commercial Courts Act coming into force, but before the suit is transferred to Commercial Court, the remedy of a party against the same under CPC would not be affected due to the deliberate phrasing employed in Section 13 of the Commercial Courts Act, which only governs appeals from orders and judgments of Commercial Courts and Commercial Divisions. Thus, while it may be correct that the legislature is empowered to curb the right to appeal by subsequent amendment and even though one of the objectives behind the Commercial Courts Act was to expedite disposal of commercial disputes, I find that perusal of the Commercial Courts Act rather preserves remedies in respect of orders passed prior to transfer of the subject suit,” Justice Mahajan observed.

He said the distinction would be relevant particularly in cases before District Courts where ordinary civil benches and Commercial Courts are separate. In the present case, however, it did not alter the outcome because the Delhi High Court has jurisdiction over both ordinary original civil matters and matters assigned to its Commercial Division.

Justice Mahajan ultimately held that Brahmos Aerospace was incorrect where the court trying the suit also has jurisdiction over commercial disputes but that orders passed by an ordinary Civil Judge before transfer would not be subject to Section 13 merely because the suit was subsequently transferred.

The reference was accordingly answered, and the appeal has been directed to be listed before the appropriate bench on September 2, 2026, for further proceedings.

For Appellant: Advocates Neeraj Yadav and Aditi Sharma

For Respondents: Senior Advocate Jayant Mehta (Amicus Curiae) Advocates Warisha Farasat, Nazrul Islam, Akhar Taj, Suvarna Swain, Pallav Arora and Suvan Jain