The question of whether a petition under Article 227 of the Indian Constitution
can be heard by a Commercial Court of a High Court was addressed by the Division
Bench of the Delhi High Court. This issue arose in response to a judgment made
by the Learned Additional District Judge (ADJ) on September 25, 2021, wherein an
application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC) was
dismissed, and no appeal was available under Order 43 Rule 1 CPC. Consequently,
the aggrieved party sought recourse under Article 227.
Section 8 of the Commercial Courts Act posed a challenge to this situation, as
it explicitly prohibits revision applications or petitions against interlocutory
orders. Thus, the central question was whether a petition under Article 227
could be maintained concerning proceedings in a commercial suit before the
District Judge (Commercial), given the prohibition under the Commercial Courts
The Concluding Note:
- Alternative Remedy and Discretionary Nature of Article 227:
The Division Bench noted that a petition under Article 227 of the Constitution
of India is a discretionary remedy and is typically not exercised when an
alternative remedy is available under the CPC. In this context, it's essential
to highlight that the remedy of revision under Section 115 of the CPC, which
would have been available against the dismissal of an application under Order 7
Rule 11 CPC, had been eliminated by the Commercial Courts Act.
- Scope and Ambit of Article 227:
One of the critical aspects considered by the Division Bench was the scope and
ambit of a petition under Article 227 compared to a revision application under
Section 115 of the CPC. It was observed that the powers conferred by Article 227
are broader in scope than those of Section 115 of the CPC. Essentially, anything
that could be done under Section 115 could also be done under Article 227. This
led to the conclusion that petitions under Article 227 could be preferred even
against orders for which a revision application under Section 115 CPC would have
- Commercial Courts Act and Article 227:
The main contention was whether the Commercial Courts Act completely barred the
jurisdiction under Article 227 in cases where a revision application under CPC
had been rendered unavailable due to the Act. The Division Bench, while
acknowledging that the Commercial Courts Act limited certain remedies, held that
Article 227's jurisdiction should not be entirely precluded. Therefore, the
Division Bench ruled that a petition under Article 227 was maintainable in the
context of a dismissal of an Order 7 Rule 11 application, even if the Commercial
Courts Act had eliminated the revision remedy.
In the case before the Delhi High Court's Division Bench, it was established
that the Commercial Courts Act's restrictions on certain remedies did not
entirely bar the exercise of jurisdiction under Article 227 of the Constitution
of India. The decision highlighted the discretionary nature of Article 227, its
broader scope compared to Section 115 of the CPC, and the importance of
maintaining access to justice even in the context of commercial suits.
Ultimately, the petition under Article 227 was deemed maintainable in this case,
allowing the aggrieved party to seek redress against the dismissal of their
application under Order 7 Rule 11 CPC.
Case Law Discussed:
Case Title: Black Diamond Track Parts Vs Black Diamond Motor
Date of Judgement:25/05/2021
Case No. FAO (COMM) 41/2021
Neutral Citation No: N.A.
Name of Hon'ble Court:Delhi High Court
Name of Hon'ble Judge: Rajiv Sahai Endlaw and Amit Bansal. H.J.
Information and discussion contained herein is being shared in the public
Interest. The same should not be treated as substitute for expert advice as it
is subject to my subjectivity and may contain human errors in perception,
interpretation and presentation of the fact and issue involved herein.
Written By: Advocate Ajay Amitabh Suman
, IP Adjutor - Patent and
Email: [email protected]
, Ph no: 9990389539