Bombay High Court: A Division Bench of Justices Bharati Dangre and Manjusha Deshpande rejected a preliminary objection challenging the maintainability of a commercial appeal arising out of a trademark rectification dispute.
The respondents had contended that the appeal was not maintainable as the impugned order was not a “decree” and did not fall within the category of appealable orders under Order XLIII of the Code of Civil Procedure.
Dealing with this, the Court explained the distinction between “judgment”, “order” and “decree” under the CPC, observing that a decree is the formal expression of an adjudication conclusively determining the rights of parties, while a judgment contains the reasoning for such determination.
The Bench held that the crucial test is whether the decision finally determines the lis between the parties. It further clarified that while the proviso to Section 13(1-A) restricts appeals against certain orders to those enumerated under Order XLIII CPC, the main provision permits appeals against “judgments” of the Commercial Division.
Applying this, the Court noted that the Single Judge’s order directing removal of a registered trademark from the Register amounted to a conclusive determination of rights, and therefore possessed the character of a decree, notwithstanding that the proceedings arose from a miscellaneous petition.
The Court also observed that commercial disputes under the Act may arise in the form of suits, applications or proceedings, and the nature of the proceeding would not alter the character of a decision which finally determines rights.
Accordingly, the preliminary objection was rejected and the appeal was held to be maintainable.
The Commercial Appeal alongwith Interim Application has been listed on 30 April, 2026.
Appearances:
For the Appellants: Advocate Alankar Kirpekar, along with Advocates Lakshyaved R. Odhekar, Omkar N. Mhasde and Ayush Tiwari.
For the Respondents: Advocate Rohan Kadam, along with Advocates Rucha Vaidya, Manosij Mukherjee, Dominic Alvares, Ritik Gupta and Sneha Meghani, instructed by Suvarna Joshi.
