RESILIENT INNOVATIONS PRIVATE LIMITED Vs. PHONEPE PRIVATE LIMITED

JUDGEMENT

(1.) This Appeal, filed under Sec. 13 of the Commercial Courts Act, 2015 ( "the Act ") challenges an Order of the Learned Single Judge dtd. 22/10/2021. By that Order, the Respondent (Plaintiff in the proceedings before the Learned Single Judge) was given leave to withdraw its suit with liberty to file a fresh suit on the same cause of action. The leave to withdraw with such liberty was granted by the Learned Single Judge by seeking to exercise powers under Order 23 Rule 1(3) of the Code of Civil Procedure, 1908 ( "the CPC "). The Appellant -Defendant before the Learned Single Judge, has filed this appeal taking exception to the grant of liberty to file a fresh suit on the same cause of action.

(2.) Briefly stated, the Appellant contends that no ground for granting such liberty was either made out by the Respondent or noted in the Impugned Order to justify the grant of such liberty under Order 23 Rule 1(3). The grievance is that without the requirements for grant of such liberty under the said provision being satisfied, the Learned Single Judge was in error in exercising such power. It was contended that the grant of such liberty without the requirements of the provisions being satisfied amount to a jurisdictional error in the Impugned Order.

(3.) Before referring to the nature of proceedings before the Learned Single Judge and the Impugned Order, it is to be noted at the outset that the Respondent has raised an issue of the very maintainability of this Appeal under Sec. 13 of the Act. Both parties have made extensive submissions on this aspect and also on the merits of the Appeal on the assumption that it is maintainable. In fact, the order in which submissions were made by the Appellant was to address the aspect of merits and the substantive law under Order 23 Rule 1(3), and thereafter argue how an Order of such nature is appealable under Sec. 13 of the Act. The Respondents submissions also proceed in a similar manner of addressing the substantive issue of exercise of power under Order 23 Rule 1(3) first and then the issue of maintainability.