In the recent case of Perpetual Vision LLP & Anr, v/s Vaibhav S. Pingale& Ors. Delhi High Court addressed an important procedural question in commercial litigation which has been kept on confusing most of the litigants. The question is that whether an appeal can be made against an order passed by Commercial Court which merely issues “notice” on an application for interim injunction under Order 39 Rules 1 and 2 of the CPC, without granting or expressly refusing injunction relief.
In the particular case, the Commercial Court decided to issue a summons in the lawsuit and notice on the injunction Application, notwithstanding the plaintiff’s request for immediate ex parte protection as per Order 39 Rule 3 of CPC.
The plaintiffs argued that the order was appealable under Section 13 of the Commercial Courts Act of 2015 read with Order 43 Rule 1 (r) of CPC since the court’s reluctance to provide prompt relief amounted to an implicit rejection.
APPELLANT’S RELIANCE ON A. VENKATASUBBIAH NAIDU AND THE COURT’S DISTINCTION
The main question on the High Court’s agenda was whether an order that merely issues notice can be considered as order passed under Order 39 Rules 1 and 2 CPC (which is appealable) or Rule 3 (which is non-appealable) without granting or denying interim relief. Because Section 13 of the Commercial Courts Act restricts appeals to the orders listed in Order 43 Rule 1 CPC, this distinction is essential. Order 43 Rule 1(r) clearly excludes Rule 3 but allows appeals from orders under Order 39 Rules 1, 2, 2A, 4, and 10. Thus, no appeal is possible unless the impugned order is equivalent to an adjudication under Rule 1 or Rule 2 of Order 39.
The major source of support for the appellant’s position was the Supreme Court’s decision in A. Venkatasubbiah Naidu v. S. Chellappan (2000). In that instance, the Supreme Court ruled that the denial of an injunction, whether explicit or implied by necessity if links with Order 39 Rule 1 or Rule 2 is an order that can be appealed. The appellants contended that Order 43 Rule 1(r) applied because the trial court’s choice to serve notice rather than award ex parte remedy constituted a constructive denial. Additionally, they relied on the trial court’s order’s use of the words “Submissions heard” to imply that some sort of adjudication had occurred.
Venkatasubbiah Naidu, however, was given special consideration by the Delhi High Court in the particular case. It stated that the Supreme Court’s ruling was applicable in situations where the trial court had done some sort of adjudication, also meaning any decision made on the basis of merits of the case, regardless of whether it was specifically labelled as an order under Rules 1 and 2. On the other hand, the Commercial Court in this instance had not taken into account, evaluated, or rendered a decision about the merits of the request for an injunction. It only adhered to Order 39 norm Rule 3’s default norm, which mandates that notice be given prior to obtaining an injunction unless extraordinary urgency is demonstrated. The rationale of Venkatasubbiah did not apply because the contested order was only procedural and had no adjudicatory nature. It is not possible to elevate an order that is only a procedural step to the level of a “refusal” of injunction.
The Court’s analysis was based on Order 39 Rule 3. Rules 1 and 2 give judges the authority to issue interim injunctions, but Rule 3 mandates that notice be given before to issuing an injunction, with the exception of rare circumstances in which ex parte relief must be justified. Therefore, an order under Rule 1 or Rule 2 cannot be equated with an order issuing notice. The legislature clearly intended to forbid appeals against such procedural directives, as evidenced by the purposeful exclusion of Rule 3 from the list of appealable instructions under Order 43 Rule 1(r). Allowing appeals at this point would undermine the Commercial Courts Act’s efficiency goals by creating an uncontrollable amount of early litigation.
APPLICATION OF DIVISION BENCH PRECEDENTS AND FINAL HOLDING
The High Court cited two legally binding Division Bench precedents to support its judgment. In the first, Sahil Singh Maniktala v. Harpreet Singh, it was clearly decided that an order under Order 39 Rule 3 CPC that only issued notice is not appealable. Rule 3 is expressly excluded by Order 43 Rule 1(r), and since these notice orders do not decide rights or have immediate or irreversible effects, they are not considered “judgments” under Section 10 of the Delhi High Court Act. A simple notification order does not qualify as a “judgment,” even though some interlocutory orders may be if they have finality or decisiveness regarding rights.
Nisha Raj v. Pratap K. Kaula, the second precedent, further stated that “interlocutory judgments” are limited to temporary decrees that directly and immediately impact substantive rights. Without any adjudicatory component, a notification order has no such effect. The Court acknowledged a limited class of unusual situations in which issuing notice would essentially amount to denial of relief because restitution would be impracticable, such as deportation, irreversible export of goods, or impending execution. A notice order may be regarded as final and appealable in such uncommon circumstances. Regular property or business conflicts, like this one, do not, however, fit into that special type because any prejudice can be undone by restitutionary powers under Sections 144 or 151 CPC and Section 52 of the Transfer of Property Act.
Using these guidelines, the High Court determined that the impugned order, which just issued notice, was a traditional Rule 3 order and could not be appealed. The words “Submissions heard” could not change the nature of the order; courts can hear limited comments even when they are debating whether to provide notice, without making any decisions about rights. No appeal could be maintained under Order 43 Rule 1(r) or Section 13 of the Commercial Courts Act because no adjudication had taken place and the impugned order was not one under Order 39 Rules 1 or 2. As a result, the appeal was denied without considering the merits of the request for an injunction.
This ruling upholds a long-standing legal stance that not all procedural actions call for appellate review. The Delhi High Court upholds procedural discipline in commercial litigation and supports the statutory goal of accelerating dispute resolution by reiterating that notice orders in injunction applications are non-appealable. The decision makes it clear that Venkatasubbiah Naidu cannot be expanded to include non-adjudicatory procedural orders and guarantees that appellate courts are not overburdened with premature challenges. Thus, the ruling upholds the statutory framework governing appeals in commercial disputes while striking a balance between the need for immediate relief and the requirement of due process for the opposing party.
Mark Shield assisted the Court in this matter on behalf of the Appellants.
