Delhi High Court Larger Bench Holds Commercial Courts Act Applies to Pre-2015 Commercial Suits; Says Later Renumbering Cannot Preserve Broader Appeal Rights Under Section 13
Delhi High Court Affirms Samsung Leasing on Commercial Appeals; Holds Brahmos Aerospace No Longer Good Law on Applicability of Section 13 to Pending Suits
Facts
A three-Judge Bench of the Delhi High Court considered a reference arising from conflicting Division Bench decisions on an important question under the Commercial Courts Act, 2015: whether Section 13 of the Act applies to commercial suits instituted before the Act came into force on 23 October 2015. The conflict was between Brahmos Aerospace Pvt. Ltd. v. FIIT JEE Ltd. and Samsung Leasing Ltd. v. Samsung Electronics Co. Ltd.
The underlying dispute was between Yes Bank Ltd. and Modi Rubber Ltd. & Anr. Yes Bank had extended a credit facility initially of ₹100 crore, subsequently increased to ₹130 crore, in connection with a joint venture involving Modi Rubber’s subsidiary and Continental AG. Various facility, renewal and advisory fees were charged in the course of the banking relationship.
On 14 July 2014, before enactment of the Commercial Courts Act, Modi Rubber instituted CS(OS) 2481/2014 seeking recovery of approximately ₹33.13 crore along with interest and damages.
During pendency of the suit, the Commercial Courts Act came into force. In 2017, Modi Rubber applied under Order VI Rule 17 CPC for amendment of the plaint. The Single Judge allowed that application on 14 March 2019.
Yes Bank challenged the amendment order under Section 10 of the Delhi High Court Act, 1966. The appeal was initially numbered FAO(OS) 104/2019. In January 2020, the Court directed that the underlying suit be renumbered as a commercial suit and the appeal as FAO(OS)(COMM) 31/2020.
A maintainability issue then arose because an order under Order VI Rule 17 is not one of the orders enumerated in Order XLIII CPC, whereas Section 13 of the Commercial Courts Act restricts appeals from interlocutory orders of Commercial Divisions to the specified statutory categories.
Because earlier Delhi High Court decisions took conflicting positions on whether the Commercial Courts Act applied to suits instituted before 2015 but converted into commercial suits later, the question was referred to the larger Bench.
Issues
The central issue was:
Whether Section 13 of the Commercial Courts Act, 2015 applies to commercial suits instituted before the Act came into force on 23 October 2015, particularly where such suits were formally transferred or renumbered as commercial suits only later.
The Bench also considered:
- Whether the right of appeal existing on the date a suit is instituted is a vested substantive right that survives subsequent enactment of the Commercial Courts Act.
- Whether Sections 13, 15, 21 and 23 of the Commercial Courts Act expressly or by necessary implication curtail such pre-existing appellate rights.
- Whether formal transfer or renumbering by the Registry is a condition precedent for application of the Commercial Courts Act.
- Whether a Registry’s failure or delay in identifying an old suit as a commercial suit can determine the appellate rights of parties.
- Whether Brahmos Aerospace or Samsung Leasing correctly stated the law.
- Whether an appeal against an order allowing amendment under Order VI Rule 17 CPC could survive under Section 10 of the Delhi High Court Act despite Section 13 of the Commercial Courts Act.
Appellant’s Arguments
Yes Bank argued that since the underlying suit had been instituted in 2014, before the Commercial Courts Act came into force, the appellate remedy available on the date of institution became a vested substantive right.
It relied heavily on Garikapati Veeraya v. N. Subbiah Choudhary for the principle that a suit, appeal and further appeal form stages of one legal proceeding and that the right of appeal ordinarily crystallises when the original lis commences. Such a right can subsequently be taken away only expressly or by necessary intendment.
Yes Bank also relied on Videocon International Ltd. v. SEBI, arguing that a subsequent enactment cannot adversely reduce an appellate remedy that had already vested.
According to Yes Bank, when Modi Rubber’s suit was instituted in 2014, an appeal under Section 10 of the Delhi High Court Act was available against an order of the kind challenged. The subsequent enactment of the Commercial Courts Act could not retrospectively extinguish that remedy.
The Bank supported the approach in Brahmos Aerospace, which had held that where a suit had not yet been transferred to the Commercial Division when an appeal was instituted, Section 13 did not apply and the pre-existing appellate remedy remained available.
It further argued that Samsung Leasing had not properly considered the vested-right issue and therefore should not control the controversy.
Respondents’ Arguments
Modi Rubber argued that the appeal was not maintainable because an order under Order VI Rule 17 CPC is not specifically appealable under Order XLIII CPC and therefore falls outside Section 13 of the Commercial Courts Act.
It submitted that Section 15 mandates transfer of all pending commercial disputes of specified value to the Commercial Division.
According to the respondents, such transfer is statutory and automatic; formal renumbering by the Registry is only a ministerial act.
Therefore, a suit which was commercial in substance could not remain outside the Commercial Courts Act merely because the Registry had failed to promptly renumber it.
The respondents also relied upon:
- Section 13(2), which restricts appeals from Commercial Courts and Commercial Divisions;
- Section 21, which gives the Act overriding effect; and
- Section 23, whose saving provision does not preserve the old appellate remedy.
Their case was that these provisions, read together, demonstrated the necessary legislative intention to apply the new commercial appellate regime even to pending pre-2015 commercial suits.
Amicus Curiae’s Submissions
Senior Advocate Jayant Mehta, appointed as amicus curiae, substantially supported the application of the Commercial Courts Act to pending pre-2015 commercial disputes.
He emphasised that Section 15 mandates transfer of pending commercial cases and that formal change of nomenclature is merely administrative.
Section 13(2) specifically provides that, notwithstanding any other law or Letters Patent, no appeal lies from an order or decree of a Commercial Division otherwise than in accordance with the Commercial Courts Act.
The amicus therefore submitted that Section 13 applies even where a suit was instituted before 23 October 2015 and formally renumbered as a commercial suit only later.
Analysis of the Law
Order VI Rule 17 Order Is Outside Section 13 Appellate Categories
The Court first noted that the proviso to Section 13(1A) permits interlocutory appeals against orders specifically enumerated under Order XLIII CPC and orders falling under Section 37 of the Arbitration and Conciliation Act.
An order allowing amendment of a plaint under Order VI Rule 17 is not included in Order XLIII.
Therefore, if Section 13 governed the present proceedings, the impugned amendment order was not independently appealable.
The decisive question was consequently whether Section 13 applied at all to this suit, which had originally been instituted in 2014.
Section 15 Mandatorily Covers Pending Commercial Suits
The majority emphasised the mandatory language of Section 15.
The expression “shall be transferred” demonstrated that commercial suits already pending when the statute came into operation were necessarily required to move into the commercial adjudicatory framework.
According to the Court, the legislative object was to bring all qualifying pending commercial disputes within the specialised mechanism established under the Act.
Thus, formal action by the Registry was consequential to the statutory mandate; it did not determine whether the Act applied.
Renumbering Is Merely Ministerial
A central holding of the judgment is that formal conversion or renumbering of an ordinary suit into a commercial suit is merely a ministerial or clerical act.
The Court held that application of the Commercial Courts Act cannot depend upon how quickly the Registry changes the case number or nomenclature.
Otherwise, two substantively identical commercial suits pending on 23 October 2015 could be governed by entirely different appellate regimes merely because one was renumbered promptly and the other was not.
The majority regarded such an outcome as incompatible with the statutory scheme.
Accordingly, any suit involving a qualifying commercial dispute was held to be governed by the Commercial Courts Act from its commencement, irrespective of subsequent formal renumbering.
Commercial Courts Act Overrides Other Appellate Routes
The Court relied significantly upon Section 13(2) and Section 21.
Section 13(2) provides that notwithstanding anything contained in any other law or the Letters Patent, no appeal shall lie from an order or decree of a Commercial Division or Commercial Court except in accordance with the Act.
Section 21 gives the Commercial Courts Act overriding effect over inconsistent laws.
The majority concluded that, after 23 October 2015, appeals arising from qualifying commercial disputes had to comply with the Commercial Courts Act rather than a wider remedy that might otherwise have existed under the Delhi High Court Act or Letters Patent.
Vested Right of Appeal Is Not Absolute
The Court accepted the general proposition that a right of appeal is substantive and ordinarily accrues when the lis commences.
However, that does not mean the right is constitutionally or inherently immune from subsequent legislation.
An appellate remedy is ultimately a creation of statute. It can be curtailed or removed by a later enactment where the legislature manifests that intention expressly or by necessary implication.
The majority held that the Commercial Courts Act demonstrated precisely such an intention.
Sections 13, 15, 21 and 23 Show Necessary Intendment
The majority read the statutory provisions collectively.
Section 15 brings pending commercial suits into the commercial regime.
Section 13 restricts appeals.
Section 21 overrides inconsistent enactments.
Section 23 does not preserve the earlier appellate remedy.
From these provisions, the Bench concluded that the legislation had by necessary intendment taken away any wider appellate right previously available against orders not enumerated in Order XLIII CPC.
Thus, the vested-right doctrine did not save Yes Bank’s broader appellate remedy.
Videocon Did Not Save the Appeal
Yes Bank relied strongly on Videocon International.
The Court held that the precedent did not support an absolute proposition that vested appellate rights can never be altered.
Rather, Videocon itself recognised that an appellate right existing at commencement of proceedings continues subject to a subsequent amendment expressly or impliedly providing otherwise.
The majority found the Commercial Courts Act to contain that contrary legislative intention.
Accordingly, Videocon was held to support, rather than undermine, the conclusion that Parliament could restrict the previously available appellate remedy.
Brahmos Aerospace Held Not Good Law on This Point
The larger Bench expressly disapproved the relevant holding in Brahmos Aerospace Pvt. Ltd. v. FIIT JEE Ltd.
Brahmos had linked the applicability of Section 13 to whether the pending suit had actually been transferred or renumbered as a commercial suit when the appeal was instituted.
The larger Bench rejected that approach.
It held that Brahmos Aerospace is not good law to the extent it states that Section 13 does not apply to a pre-existing commercial suit merely because the suit was formally renumbered later.
Samsung Leasing Affirmed
The larger Bench instead affirmed Samsung Leasing Ltd. v. Samsung Electronics Co. Ltd.
That decision had treated the Registry’s failure to formally identify or renumber a suit as commercial as a technical omission incapable of defeating the substantive operation of the Commercial Courts Act.
The majority agreed that when the dispute is commercial in nature, Registry nomenclature cannot control the statute’s applicability.
Separate Opinion of Justice Amit Mahajan
Justice Amit Mahajan agreed that the present Yes Bank appeal was not maintainable under Section 13, but did not fully agree with the breadth of the majority’s reasoning.
His separate opinion drew an important distinction based upon the jurisdiction of the court which had actually passed the impugned order.
Relying particularly upon the Supreme Court’s 2026 decision in Shri Balaji Industrial Engineering Ltd. v. Steel Authority of India Ltd., he considered the consequences where a commercial matter continues as an ordinary civil suit without formal transfer.
Justice Mahajan concluded that Brahmos Aerospace was incorrect insofar as it made Section 13’s applicability depend simply upon formal transfer where the Judge hearing the case was also vested with jurisdiction to adjudicate commercial disputes.
He agreed that Samsung Leasing was correct to treat change of nomenclature as merely technical where the impugned order had effectively been passed by a court competent to act as the Commercial Division.
However, he added an important qualification:
Where a commercial dispute continues as an ordinary civil suit before a Civil Judge who is not exercising or vested with commercial jurisdiction, and an order is passed before actual transfer, that earlier order would ordinarily not become subject to Section 13 merely because the suit is later transferred.
His exception was where the very court deciding the matter was also vested with commercial jurisdiction.
Thus, all three Judges agreed on the outcome in the present case, though Justice Mahajan adopted a narrower analytical route on the broader transfer question.
Precedent Analysis
Garikapati Veeraya v. N. Subbiah Choudhary
Yes Bank relied on this classic authority for the proposition that a right of appeal is substantive, becomes vested when the lis commences and ordinarily survives throughout the proceedings.
The larger Bench did not reject that general principle.
It held instead that such a vested appellate right remains susceptible to a subsequent statute which takes it away expressly or by necessary intendment.
Videocon International Ltd. v. SEBI
This was central to Yes Bank’s case.
The larger Bench emphasised the qualification contained in Videocon: vested appellate rights continue unless a subsequent enactment expressly or impliedly provides to the contrary.
Since the Commercial Courts Act manifested such contrary intention through its statutory scheme, the precedent did not preserve the wider remedy asserted by Yes Bank.
Samsung Leasing Ltd. v. Samsung Electronics Co. Ltd.
This decision was affirmed by the larger Bench.
Its essential proposition—that a Registry’s failure to formally renumber a commercial dispute cannot negate applicability of the Commercial Courts Act—was accepted.
Brahmos Aerospace Pvt. Ltd. v. FIIT JEE Ltd.
This authority was expressly disapproved to the extent it treated later formal transfer or renumbering as decisive to Section 13’s applicability.
The larger Bench held that the statutory commercial regime cannot depend upon such administrative formalities.
Micromax Informatics Ltd. v. Vijay Jain
The majority approved the reasoning that nomenclature or registration as a commercial suit is a ministerial matter where the subject matter itself falls within the Commercial Courts Act.
Competition Commission of India v. Steel Authority of India Ltd.
This authority supported the proposition that a right of appeal is not a natural or inherent right. It must find its source in statute and cannot simply be inferred.
Shri Balaji Industrial Engineering Ltd. v. Steel Authority of India Ltd.
This 2026 Supreme Court judgment was particularly significant in Justice Amit Mahajan’s separate opinion.
He relied upon it to distinguish between mere failure to formally transfer or renumber a matter and the more fundamental question of whether the Judge who passed the order possessed commercial jurisdiction.
Court’s Reasoning
The majority’s reasoning rested on the statutory architecture of the Commercial Courts Act rather than formal case nomenclature.
A pending suit does not become commercial because the Registry changes its number. It falls within the Act because its subject matter satisfies the statutory definition of a commercial dispute of specified value.
Once the Act came into force, Section 15 required qualifying pending matters to enter the commercial regime.
Section 13 then governed appeals arising from that regime, while Sections 21 and 23 demonstrated that older, inconsistent appellate routes were not preserved.
Allowing a wider appeal merely because the Registry had delayed renumbering would make substantive appellate rights depend upon an administrative omission and could result in identically situated commercial litigants being treated differently.
The majority found that consequence untenable.
Justice Mahajan agreed that Yes Bank’s present appeal was not maintainable, although he cautioned against treating every pre-transfer order passed in every ordinary civil court as automatically governed by Section 13.
Conclusion
The Delhi High Court Larger Bench held that the Commercial Courts Act, 2015 applies to qualifying commercial suits instituted before its commencement, even where such suits were formally converted or renumbered as commercial suits only later.
The majority held that Sections 13, 15, 21 and 23 demonstrate the necessary legislative intention to subject such pending disputes to the specialised commercial appellate regime and to restrict appeals accordingly.
It expressly held that Brahmos Aerospace is not good law to the contrary and affirmed the approach in Samsung Leasing.
The reference was answered accordingly.
Importantly, the larger Bench did not finally dispose of the underlying appeal on merits. It directed FAO(OS)(COMM) 31/2020 to be listed before the appropriate Roster Bench on 2 September 2026 for further proceedings.
Case Details
Case: Yes Bank Ltd. v. Modi Rubber Ltd. & Anr.
Court: Delhi High Court, Larger Bench
Case Number: FAO(OS)(COMM) 31/2020; CNR No. DLHC010119512020
Judges: Justice V. Kameswar Rao, Justice Chandrasekharan Sudha and Justice Amit Mahajan
Date: 14 August 2026
Result: Reference answered holding the Commercial Courts Act applicable to pre-2015 pending commercial suits despite later renumbering; Brahmos Aerospace disapproved on this point and Samsung Leasing affirmed. Appeal directed before Roster Bench for further proceedings
