Asian Hotels North Limited vs Exclusive Capital Limited & Ors.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Reserved on: 20 February, 2026
th
Pronounced on : 27 February, 2026

+ FAO(OS) (COMM) 31/2026, CM APPL. 11415/2026, CM APPL.
11416/2026 & CM APPL. 11417/2026
ASIAN HOTELS NORTH LIMITED ..........Appellant
Through: Mr. Rajiv Nayyar, Sr. Advocate along
with Mr. Sidhant Kumar, Ms. Shagun
Chopra, Mr. Pratham Mehrotra &
Mr.Madhav Bhatia, Advocates.
versus

EXCLUSIVE CAPITAL LIMITED & ORS. .... .Respondents
Through: Mr. Siddharth Yadav, Sr. Advocate
with Mr. Manav Goyal, Ms. Ritika
Gusain, Ms. Amrita Sony &
Mr.Aditya Kumar, Advocates for R-1.
Ms. Devika Mohan & Mr. Dhruv
Negi, Advocates for R-3.
Mr. Kunal Tandon, Sr. Advocate with
Mr. Chetan Roy, Ms. Natasha &
Mr.Prakhar Sah, Advocates for R-5.

CORAM:
HON'BLE MR. JUSTICE DINESH MEHTA
HON'BLE MR. JUSTICE VINOD KUMAR
ORDER
Per DINESH MEHTA, J.

1. Instant appeal has been preferred under Order XLIII Rule 1 of the
Code of Civil Procedure, 1908 (hereinafter referred to as „CPC‟) read with
Section 13 of the Commercial Courts Act, 2015 (hereinafter referred to as
„the Act of 2015‟) calling in question, the propriety and correctness of the
order dated 07.01.2026.
Signature Not Verified
Digitally Signed
By:NAVEEN KUMAR
Signing Date:28.02.2026
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2. No sooner had Mr. Rajiv Nayyar, learned senior counsel for the
appellant (defendant no.4) opened his arguments, than Mr. Siddharth Yadav,
learned senior counsel for respondent no.1 (plaintiff) interjected and raised a
preliminary objection that the instant appeal is not maintainable as the order
dated 07.01.2026 does not finally decide the interim application much less
the suit. His argument, in substance was that unless an application or lis is
finally decided, appellate jurisdiction conferred under Section 13 of the Act
of 2015 cannot be invoked.

3. While highlighting that the impugned order was passed on 07.01.2026
and a period of about 45 days has since passed, learned senior counsel
argued that almost an equal period of time (45 days) is remaining when the
matter would come before learned Single Judge, as the next date is
06.04.2026.
4. In support of his contention that the instant appeal is not maintainable,
learned senior counsel for respondent no.1 relied upon the judgment of
Hon’ble the Supreme Court in the case of Shah Babulal Khimji v. Jayaben
D. Kania reported in (1981) 4 SCC 8, and argued with vehemence that
Hon’ble the Supreme Court has clearly delineated the parameters under
which an appeal can lie.
5. He argued that the instant case does not fall within the scope of the
appellate jurisdiction and prayed that the appeal be rejected on the ground of
maintainability.
6. Apart from the judgment in the case of Shah Babulal Khimji (supra),
learned senior counsel relied upon the following judgments:
i. Jaswinder Singh v. Mrigendra Pritam Vikramsingh Steiner & Ors.
reported in 2012:DHC:6522-DB.
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Signing Date:28.02.2026
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ii. Exports Unlimited v. Delhi State Industrial Development Corpn.
reported in 1996 SCC OnLine Del 259.
iii. Sahil Singh Maniktala & Ors. v. Harpreet Singh & Ors. reported in
2005 (81) DRJ 183 (DB).
iv. Perpetual Vision LLP & Anr. v. Vaibhav S Pingale & Ors. in
2025:DHC:10019-DB.
7. He relied upon all the judgments mentioned hereinabove with equal
force but special emphasis was laid upon the judgment rendered in the case
of Perpetual Vision LLP (supra), while pointing out that the appeal in such
case too was an appeal under Section 13 of the Act of 2015 and yet the Delhi
High Court has held that the appeal is not maintainable.
8. Mr. Rajiv Nayyar, learned senior counsel for the appellant (defendant
no. 4), on the other hand, argued that the provisions relating to appeal as
provided under Section 10 of the Delhi High Court Act, 1966 ( hereinafter
referred to as „the Act of 1966‟ ) or for that matter, of any Letters Patent have
no application to an appeal under Section 13 of the Act of 2015.
9. He submitted that Section 13 of the Act of 2015 simply provides that
an appeal shall lie from orders specifically enumerated under Order XLIII of
the CPC. He drew Court’s attention towards the cause title and pointed out
that the appeal in hands is, in essence, an appeal under Order XLIII Rule 1
of the CPC read with Section 13 of the Act of 2015, though a passing
reference of Section 10 of the Act of 1966 has been made. He argued that the
respondent’s arguments are totally devoid of merit.
10. He read the provisions contained in sub-rule (r) of Rule 1 of Order
XLIII of the CPC and submitted that the same provides that an appeal shall
lie from an Order passed under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10
Signature Not Verified
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Signing Date:28.02.2026
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of Order XXXIX of CPC, which by no stretch of imagination can be taken
to mean that it should only be a final order so as to maintain an appeal.
11. He argued that since appeal against an ad-interim order has been
provided under Order XLIII Rule 1 (r) of the CPC, hence the appeal under
Section 13 of the Act of 2015 is maintainable.
12. Learned senior counsel read various paragraphs of Shah Babulal
Khimji (supra) to contend that this judgment, as a matter of fact, provides
that an appeal shall lie in the cases like the one in hands.

13. He further highlighted that the provisions relating to intra-court
appeal as provided under Section 10 of the act of 1966 and the provisions of
Bombay High Court (Letters Patent) Act, 1866 are having significant
difference in its text and context.
14. Learned senior counsel for the appellant relied upon the judgment of
Hon’ble the Supreme Court rendered in the case of A. Venkatasubbiah
Naidu v. S. Chellappan. reported in (2000) 7 SCC 695 and submitted that
Hon’ble the Supreme Court has categorically held that an appeal shall lie
against an order granting or refusing an ad-interim injunction, hence, it
cannot be said that the appeal is not maintainable.
15. He argued that for the purpose of deciding as to whether an appeal
under Section 13 of the Act of 2015 is maintainable or not, the decisive
factor is not the provisions of the Act of 1966 dealing with the appeal, but
the provisions under Order XLIII Rule 1 of the CPC. And, in case the appeal
is maintainable under the provisions of CPC, the appeal shall indisputably
lie under Section 13 of the Act of 2015.
16. Mr. Kunal Tandon, learned senior counsel appearing for respondent
no.5 (defendant no.5), on the other hand practically conceded that the instant
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By:NAVEEN KUMAR
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appeal is maintainable. He submitted that it is a different matter altogether
that he may or may not agree with the order that has been passed by learned
Single Judge, but so far as maintainability of an appeal is concerned, there
cannot be any legal quarrel.
17. Heard learned counsel for the parties.
18. Before adverting to the rival submissions and rendering our answer to
the conundrum concerning the interpretation of provision under Order XLIII
of Rule 1 (r) of the CPC along with Section 13 of the Act of 2015 and
Section 10 of the Act of 1966, it will be apt to keep all the relevant
provisions handy so that the adjudication being made by us can be better
understood, and for that purpose, the said provisions are reproduced
hereunder:
Code of Civil Procedure, 1908:
1.Appeal from orders.—An appeal shall lie from the following orders under the
provisions of section 104, namely: —……………….
(r) an order under rule 1, rule 2 1[rule 2A], rule 4 or rule 10 of Order
XXXIX;………………….

Commercial Courts Act, 2015:
APPEALS
13. Appeals from decrees of Commercial Courts and Commercial Divisions. (1) [Any
person aggrieved by the judgment or order of a Commercial Court below the level of
a District Judge may appeal to the Commercial Appellate Court within a period of
sixty days from the date of judgment or order.
(1A) Any person aggrieved by the judgment or order of a Commercial Court at the
level of District Judge exercising original civil jurisdiction or, as the case may be,
Commercial Division of a High Court may appeal to the Commercial Appellate
Division of that High Court within a period of sixty days from the date of the
judgment or order:
Provided that an appeal shall lie from such orders passed by a Commercial Division
or a Commercial Court that are specifically enumerated under Order XLIII of the
Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of
the Arbitration and Conciliation Act, 1996 (26 of 1996).]
(2) Notwithstanding anything contained in any other law for the time being in force
or Letters Patent of a High Court, no appeal shall lie from any order or decree of a
Signature Not Verified
Digitally Signed
By:NAVEEN KUMAR
Signing Date:28.02.2026
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Commercial Division or Commercial Court otherwise than in accordance with the
provisions of this Act.

Delhi High Court Act, 1966:
10. Powers of Judges.-(1) Where a single Judge of the High Court of Delhi exercises
ordinary original civil jurisdiction conferred by sub-section (2) of section 5 on that
Court, an appeal shall lie from the judgment of the single Judge to a Division Court
of that High Court.
(2) Subject to the provisions of sub-section (1), the law in force immediately before
the appointed day relating to the powers of the Chief Justice, single Judges and
Division Courts of the High Court of Punjab and with respect to all matters ancillary
to the exercise of those powers shall, with the necessary modifications, apply in
relation to the High Court of Delhi.

19. So far as the argument of learned senior counsel for the respondent
no. 1 that the order dated 07.01.2026 does not finally decide the interim
application, much less the suit is concerned, we are cognizant/aware of the
fact that by way of the order dated 07.01.2026, the learned Single Judge has
directed that the title deeds of the property in question (which in any case
were being held by defendant no. 5) shall remain with defendant no. 5 and
the stay/interim application is still pending.
20. The edifice of the entire argument of Mr. Siddharth Yadav, learned
senior counsel for the respondent no. 1, rests upon the judgment of Hon’ble
the Supreme Court delivered in the case of Shah Babulal Khimji (supra)
wherein Hon’ble the Supreme Court has laid down that an appeal shall not
lie against an interlocutory order passed by learned Single Judge. We are not
required to be reminded that a judgment cannot be read as a statute; it has to
be read taking into account the contextual facts and relevant statutory
provisions involved in said case.
21. A careful reading of the judgment in the case of Shah Babulal Khimji
(supra) leaves no manner of doubt that Hon’ble the Supreme Court was
considering an appeal arising out of clause 15 of the Bombay High Court
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Signing Date:28.02.2026
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(Letters Patent) Act, 1866, wherein an interim order passed by learned
Single Judge in a petition in original jurisdiction was assailed and in such
circumstance Hon’ble the Supreme Court ruled that neither a revision under
Section 115 of the CPC nor a writ petition under Article 226/227 of the
Constitution of India would lie.
22. In the instant case, though the facts may at a first blush seem identical
but are materially distinguishable; because in the case of Shah Babulal
Khimji (supra) the order passed by learned Single Judge was in exercise of
original jurisdiction and a Letters Patent appeal was filed thereagainst under
the provisions of Letters Patent of Bombay High Court whereas in the
instant case, neither the order passed by learned Single Judge is in exercise
of original jurisdiction nor is the appeal under Section 10 of the Act of 1966.
23. It is noteworthy that instant appeal has been preferred under Section
13 of the Act of 2015, which provision in simple expression provides that an
appeal shall lie under Section 13 of the Act in a case, where an appeal
against such order has been provided under Order XLIII of the CPC. Had
the dispute not been a commercial dispute or the suit was not being tried by
any Commercial Court, the situation would have remained the same, when it
comes to maintainability of appeal.
24. The moot question which is required to be decided in the instant case
therefore is, whether an appeal could have been filed under the CPC, had the
order impugned been passed by a Civil Court of original jurisdiction and had
the Act of 2015 not come into force? The Act of 2015, in the present context,
is relevant only for the purpose of forum of adjudication of the suit, which
was essentially a suit for declaration seeking that the document dated
14.12.2022 be declared void in order to secure the right, interest and the title
Signature Not Verified
Digitally Signed
By:NAVEEN KUMAR
Signing Date:28.02.2026
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of the property coupled with consequent relief of injunction. The instant
appeal has come before the Division Bench, rather Commercial Appellate
Division, not because of Section 10 of the Act of 1966, but because of
provision contained in Section 13 & other provision of the Act of 2015.
25. For such relief, a plaintiff was otherwise required to file a suit which
would naturally lie before a competent Civil Court, had the Act of 2015 not
been there; prior to promulgation of the Act of 2015. If a party were to
challenge any ad-interim injunction which has been passed or refused by the
Court, an appeal would definitely lie perforce Order XLIII Rule 1(r) of the
Code.
26. The reason for taking this view is, that the language of Order XLIII
Rule 1 (r) of the CPC clearly provides that an appeal shall lie against an
Order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order
XXXIX . An Order would mean and embrace within its fold a final order so
also an ad-interim order and therefore regardless of the fact that the order
dated 07.01.2026 is an ad-interim order operative up to 06.04.2026, we are
of the view that an appeal would lie before an Appellate Court. Since this
suit and all suits of similar nature are required to be tried by the Commercial
Court constituted under Section 3 of the Act of 2015, an appeal against such
order in whichever forum prescribed, shall also be maintainable under the
Act of 2015.

27. Moving on to the judgments which have been cited by Mr. Siddharth
Yadav, learned senior counsel for the respondent no.1, we are of the view
that the same are of little help to him. The judgment in the case of Shah
Babulal Khimji (supra) is not applicable in the instant case, for which we
have given our reasons in earlier part of the judgment. Other judgments
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By:NAVEEN KUMAR
Signing Date:28.02.2026
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including the judgments of this Court rendered in the cases of Perpetual
Vision LLP (supra) and Sahil Singh Maniktala (supra) too are clearly
distinguishable inasmuch as the orders impugned therein had the effect of
issuing notice only, and considering such situation, this Court held that an
order of issuance of notice under Order XXXIX Rule 3 of CPC is not an
order within the meaning of Order XXXIX Rule 1 and 2 of the CPC so as to
maintain an appeal thereagainst since no such appeal has been provided
under sub-rule (r) or any other contingencies enumerated under Rule 1 of
Order XLIII. Since no appeal has been provided against issuance of notice
under the provisions of CPC, no appeal can naturally be maintained under
Section 13 of the Act of 2015.
28. As against the judgment which Mr. Siddharth Yadav has cited, we find
that the judgment in the case of A. Venkatasubbiah Naidu (supra)
particularly para 13 thereof clearly suggest that an order of injunction may
be an ad-interim order or for that matter any order under Order XXXIX Rule
1 of CPC can be challenged by way of an appeal under Order XLIII Rule
1(r) of CPC, subject of course to the fetters prescribed by the Courts of law
on the basis of various judicial pronouncement. It would not be out of place
to reproduce para no. 13 of the judgment in the case of A. Venkatasubbiah

Naidu (supra):
“13. It cannot be contended that the power to
pass interim ex parte orders of injunction does
not emanate from the said Rule. In fact, the said
Rule is the repository of the power to grant
orders of temporary injunction with or without
notice, interim or temporary, or till further
orders or till the disposal of the suit. Hence, any
order passed in exercise of the aforesaid powers
in Rule 1 would be appealable as indicated in
Order 43 Rule 1 of the Code. The choice is for
the party affected by the order either to move the
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appellate court or to approach the same court
which passed the ex parte order for any relief.”

29. In view of the discussion foregoing, we are unhesitatingly of the
opinion that as per Order XLIII Rule 1(r), an appeal shall lie against an ad-
interim order refusing or granting an ad-interim injunction if the suit is
governed by the CPC, irrespective of the nature of suit and regardless of the
forum. Hence, instant appeal under Order XLIII Rule 1(r) of CPC read with
Section 13 of the Act of 2015 is maintainable. However upon ultimate
analysis, the threshold for interference may be kept very high so as to
restrict the exercise of jurisdiction under appellate powers given under Order
XLIII Rule 1 of the CPC. We also hold and clarify that since language of
Section 10 of the Act of 1966 speaks of “judgment” passed in exercise of
ordinary original civil jurisdiction, the fetters on the powers of Division
Bench shall not apply as the suit was being tried under the provisions of the
Act of 2015, which itself provides right to appeal as provided under Order
XLIII of the CPC.
30. List this case for hearing on 09.03.2026.


DINESH MEHTA
(JUDGE)


VINOD KUMAR
(JUDGE)
FEBRUARY 27, 2026/ nk
Signature Not Verified
Digitally Signed
By:NAVEEN KUMAR
Signing Date:28.02.2026
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