Promoshirt SM SA Vs. Armasuisse

# When Can You Appeal Twice? The Delhi High Court Clarifies the Scope of Section 100-A CPC in Trademark Appeals

## Introduction

Can a party dissatisfied with a Single Judge's ruling in a trademark appeal go a step further and appeal to a Division Bench of the same High Court? This apparently technical, procedural question carried significant practical stakes in *Promoshirt SM SA v. Armasuisse*, decided by a Division Bench of the Delhi High Court. The controversy centred on whether Section 100-A of the Code of Civil Procedure, 1908 — a provision designed to curb multiplicity of appeals — extinguishes the right to file a Letters Patent Appeal (LPA) against a Single Judge's decision rendered in an appeal from an order of the Registrar of Trade Marks under the Trade Marks Act, 1999.

The judgment is a rich, closely reasoned exposition on statutory interpretation, the doctrine of precedent, and the continuing vitality of the Letters Patent as a source of intra-court appellate jurisdiction. It untangles decades of conflicting case law from across India by identifying the precise thread that distinguishes cases where Section 100-A applies from those where it does not.

## Factual and Procedural Background

The dispute arose out of trademark registration proceedings between Promoshirt SM SA (the appellant, a Swiss entity) and Armasuisse (the principal respondent). The Deputy Registrar of Trade Marks, by an order dated 25 July 2022, rejected the notice of opposition filed by Armasuisse and directed that Promoshirt's applications for registration of its trademarks be accepted and processed further under the Trade Marks Act, 1999.

Armasuisse challenged this order by way of a statutory appeal to the High Court under Section 91 of the Trade Marks Act, 1999. A Single Judge of the Delhi High Court decided that appeal by a judgment dated 4 January 2023. Aggrieved by this outcome, Promoshirt preferred two connected intra-court appeals — LPA 136/2023 and LPA 137/2023, along with several connected applications (for stay, for summoning the complete record, and for placing additional documents on record) — before a Division Bench, invoking Clause 10 of the Letters Patent of the High Court.

At the threshold, Armasuisse raised a preliminary objection to the very maintainability of these Letters Patent Appeals. It contended that Section 100-A of the Code of Civil Procedure, 1908 — which contains a non-obstante clause overriding "any Letters Patent for any High Court" — bars any further appeal once an appeal from an original or appellate decree or order has been heard and decided by a Single Judge of a High Court. Since the Single Judge here was admittedly exercising appellate jurisdiction (hearing an appeal against the Registrar's order under Section 91), Armasuisse argued that no further appeal to a Division Bench could lie.

Given the divergence of judicial opinion on this issue across various High Courts and even within the Delhi High Court's own precedents, the Division Bench proceeded to examine the question in considerable depth, tracing the legislative history of Section 100-A, the appellate provisions of successive trade mark statutes (the Trade Marks Act, 1940, the Trade and Merchandise Marks Act, 1958, and the Trade Marks Act, 1999), and a long line of Supreme Court and High Court precedents. The order was reserved on 21 August 2023 and pronounced on 6 September 2023, with the Bench confining itself, at this stage, only to the preliminary objection regarding maintainability.

## Dispute Before the Court

At its core, the case required the Court to answer one central legal question: **Does Section 100-A of the Code of Civil Procedure bar a Letters Patent Appeal against a judgment of a Single Judge rendered in exercise of appellate powers under Section 91 of the Trade Marks Act, 1999, given that Section 91 does not expressly subject such appeals to the Code?**

For a lay reader, the dispute can be understood this way: ordinarily, if you lose before a Single Judge of the High Court after a first round of appeal, the law says "no more appeals within the High Court" — the matter is over unless you go to the Supreme Court. This rule exists to stop litigation from dragging on endlessly. But the Letters Patent — an old colonial-era charter that established the High Court and granted it certain powers — separately allows a further "appeal within the High Court" (an LPA) against a Single Judge's decision in specified situations. The question was whether the newer rule (Section 100-A) had silently swallowed up this older right (the LPA) in the specific context of trademark appeals.

**Armasuisse's position:** Section 100-A uses sweeping language ("notwithstanding anything contained in any Letters Patent... or any other law for the time being in force") and was intended to eliminate a further tier of intra-court appeal wherever a Single Judge decides an appeal. It relied on the fact that the 1999 Trade Marks Act, unlike its 1958 predecessor, contains no provision expressly allowing a further appeal against a Single Judge's order, suggesting Parliament intended to do away with that extra layer. It also invoked a body of case law (mostly involving Motor Accident Claims Tribunals, the Company Law Board, and proceedings originating in civil courts) holding that Section 100-A bars LPAs in analogous situations.

**Promoshirt's position:** Section 100-A applies only where the Single Judge has decided an appeal against a "decree" or "order" as those terms are specifically defined in the Code of Civil Procedure — and an "order," under Section 2(14) CPC, means the formal expression of a decision of a *civil court*. The Registrar of Trade Marks, they argued, is not a civil court — merely being vested with some of the powers of a civil court (for taking evidence, summoning witnesses, etc.) does not transform an administrative/quasi-judicial authority into a court. Since the order under appeal before the Single Judge did not emanate from a civil court, Section 100-A's bar simply never came into play, leaving the Letters Patent remedy intact.

## Reasoning and Analysis of the Court

### The statutory framework

The Court began by setting out Section 100-A of the Code in its various historical avatars — as introduced in 1976, and as substituted in 1999 and 2002 — noting that the provision has progressively widened, but has always retained its core non-obstante character overriding Letters Patent provisions. It also reproduced Clause 10 of the Letters Patent of the (then) Lahore High Court, applicable to the Delhi High Court, explaining that it permits an intra-court appeal against a Single Judge's judgment, subject to specified exceptions.

Crucially, the Bench undertook a comparative reading of the appellate provisions across the three successive trade mark statutes:

- **Section 76 of the Trade Marks Act, 1940** provided an appeal to the High Court, and Section 76(3) expressly applied the provisions of the Code of Civil Procedure to such appeals.

- **Section 109 of the Trade and Merchandise Marks Act, 1958** went further: Section 109(5) expressly provided for "a further appeal... to a Bench of the High Court" where the first appeal was heard by a Single Judge, and Section 109(8) also applied the Code to such appeals.

- **Section 91 of the Trade Marks Act, 1999**, the provision actually in force, contains neither an express right of further appeal (as under the 1958 Act) nor any provision subjecting the appeal to the Code (as under both the 1940 and 1958 Acts).

This comparison became pivotal to the Court's reasoning: the 1999 Act's silence cuts both ways, and the Bench had to determine which way it actually cut.

### Precedents on the applicability of Section 100-A

The Court undertook an exhaustive survey of precedent, which it eventually organised into three analytically distinct categories:

1. **Cases arising directly under the Code of Civil Procedure** — for instance, appeals from orders passed under Order XLIII Rule 1 CPC (as in the Supreme Court's decision in the *Mohd. Saud* line of cases, and Delhi High Court decisions such as *Vasanthi* and *N.G. Nanda*). In these cases, Section 100-A applied without controversy since the underlying decree or order was, by definition, one passed by a civil court.

2. **Cases arising from special enactments where the underlying dispute had, from its inception, been before a civil court** — such as *Avtar Narain Behal v. Subhash Chander Behal* (a Full Bench decision of the Delhi High Court concerning Section 299 of the Indian Succession Act, 1925), *Satish Chander Sabharwal v. State* (also under the Succession Act), and the Kerala Full Bench decision in *Kesava Pillai Sreedharan Pillai v. State of Kerala* [2003 SCC OnLine Ker 293] (concerning Section 54 of the Land Acquisition Act, 1894). The Court noted that both Section 299 of the Succession Act and Section 54 of the Land Acquisition Act expressly subjected appeals to the Code of Civil Procedure, making Section 100-A's application unavoidable.

3. **Cases involving tribunals deemed by statutory fiction to be civil courts** — most notably *Kamal Kumar Dutta v. Ruby General Hospital Ltd.* [(2006) 7 SCC 613], where the Supreme Court held that Section 100-A barred a further appeal against a Single Judge's order in an appeal from the Company Law Board, because the Board possessed "all the trappings of a court" and Section 10E(4D) of the Companies Act, 1956 deemed its proceedings to be judicial proceedings. Similarly, the Full Bench decisions of the Andhra Pradesh High Court in *Gandla Pannala Bhulaxmi v. Managing Director, A.P. SRTC* [2003 SCC OnLine AP 525] and its later reaffirmation in *United India Insurance* dealt with Motor Accident Claims Tribunals, which Section 169 of the Motor Vehicles Act, 1988 deems to be civil courts for specified purposes.

The Bench distinguished all of the above from the case at hand by holding that the Registrar of Trade Marks does not fall into any of these three categories. There is no deeming provision in the 1999 Act clothing the Registrar with the status of a civil court, and Section 91 does not subject the appeal to the Code.

### The "civil court" versus "court" distinction

A significant portion of the judgment is devoted to unpacking the difference between a "court," a "civil court," and a body with mere "trappings of a court" — a distinction with a long pedigree in Indian jurisprudence. The Court extensively relied on:

- ***The Anglo French Drug Co. (Eastern) Pvt. Ltd. v. R.D. Tinaikar*** [1957 SCC OnLine Bom 165], where the Bombay High Court held that the Registrar of Trade Marks, despite possessing some evidentiary powers of a civil court, is not himself a "Court," drawing on the Privy Council's classic exposition in *Shell Co. of Australia v. Federal Commissioner of Taxation* [1931 AC 275] on the indicia that separate courts from administrative tribunals.

- ***Khoday Distilleries Ltd. v. Scotch Whisky Association*** [(2008) 10 SCC 723], where the Supreme Court reaffirmed, citing its earlier decision in *Sakura v. Tanaji* [(1985) 3 SCC 590], that the Registrar of Trade Marks is not a court.

- ***Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation*** [(2009) 8 SCC 646], a comprehensive Supreme Court decision explaining that although all civil courts are courts, not all courts (or tribunals with trappings of a court) are civil courts — a distinction the Delhi High Court found determinative, since Section 2(14) CPC defines "order" specifically by reference to a decision of a "civil court," not merely a "court."

- ***Paramjeet Singh Patheja v. ICDS Ltd.*** [(2006) 13 SCC 322] (cited via the discussion on arbitral awards), reinforcing that only a "court," in the strict sense engaged in adjudication of a "suit," can render a "decree" or "order" as defined by the Code.

Applying these principles, the Bench held that even applying the "trappings of a court" test urged by the respondents, the Registrar of Trade Marks does not meet the threshold, since Section 91 makes no provision subjecting appeals to the CPC and there is no statutory fiction deeming the Registrar (or its orders) to have the status of a civil court.

### Distinguishing and reading down Avtar Narain Behal

Since the Full Bench decision in *Avtar Narain Behal* had made broad observations suggesting that Section 100-A is not confined to matters arising under the Code alone, the Division Bench had to carefully reconcile this precedent rather than simply disregard it. Applying settled principles on ascertaining the *ratio decidendi* of a judgment — drawing support from the Constitution Bench's guidance in ***In Re: Natural Resources Allocation, Special Reference No. 1 of 2012*** [(2012) 10 SCC 1] on distinguishing binding principle from broader observations — the Bench held that *Avtar Narain Behal* must be read in light of its own facts: it arose under Section 299 of the Indian Succession Act, 1925, which (like Section 76(3) of the 1940 TM Act and Section 109(8) of the 1958 TM Act) expressly imported the CPC into the appellate process. The ratio of *Avtar Narain Behal*, properly understood, was therefore that the LPA remedy is excluded when the special statute itself subjects the appeal to the Code — not that Section 100-A applies universally regardless of the source of the order under appeal.

The Bench also drew support from an earlier Full Bench decision in *Mahli Devi*, concerning Section 54 of the Land Acquisition Act, which had held that unless a statute itself bars a second appeal or makes a Single Judge's decision final, the Letters Patent remedy survives. This, in turn, traced back to the seminal Supreme Court ruling in ***National Sewing Thread Co. Ltd. v. James Chadwick & Bros.*** [AIR 1953 SC 357], decided under Section 76 of the 1940 Trade Marks Act itself, which held that once a statutory appeal reaches the High Court, it must be conducted "according to the rules of practice and procedure of that Court" — including its Letters Patent — unless the statute expressly excludes such further recourse.

### The Constitution Bench in P.S. Sathappan and other authorities

The Court also examined ***P.S. Sathappan (Dead) by LRs v. Andhra Bank Ltd.*** [(2004) 11 SCC 672], a Constitution Bench decision heavily relied upon by the respondents. It clarified that while *Sathappan* had recognised that Section 100-A, once validly invoked, bars an LPA, the case itself turned on the saving provisions of Section 104 CPC as they stood at the relevant time (before the 2002 amendment), and did not concern appeals arising outside the framework of the Code. Similarly, ***Subal Paul v. Malina Paul*** [(2003) 10 SCC 361] was found to be a case concerning proceedings squarely governed by the Code.

The Bench additionally engaged with two recent, more directly relevant Delhi High Court decisions specifically on the maintainability of LPAs against Single Judge orders under the 1999 Trade Marks Act: ***Resilient Innovations Pvt. Ltd. v. Phonepe Pvt. Ltd.*** [2023 SCC OnLine Del 2972] and ***V.R. Holdings v. Hero Investocorp Ltd.*** [2023 SCC OnLine 4673]. Both decisions had held that, absent a provision analogous to Section 76(3) of the 1940 Act or Section 109(8) of the 1958 Act applying the Code to appeals under Section 91, the Letters Patent remedy remains available, and that Section 13 of the Commercial Courts Act, 2015 does not curtail this remedy where the Single Judge was not exercising original civil jurisdiction. The Division Bench found itself in agreement with this line of reasoning.

### The Court's ultimate synthesis

Bringing these threads together, the Bench held that Section 100-A operates to bar a Letters Patent Appeal only in two situations: (i) where the order appealed from before the Single Judge is, in substance, a decree or order of a civil court as understood under the Code; or (ii) where the special enactment under which the original proceeding arose expressly subjects appeals to the High Court to the provisions of the Code relating to appeals. Since neither condition was satisfied — the Registrar of Trade Marks is not a civil court, and Section 91 of the 1999 Act contains no provision applying the CPC to such appeals — the bar under Section 100-A did not extend to the LPAs filed by Promoshirt.

## Final Decision of the Court

The Division Bench rejected the preliminary objection raised by Armasuisse regarding the maintainability of the two Letters Patent Appeals. It held that Section 100-A of the Code of Civil Procedure does not bar an LPA against a judgment of a Single Judge rendered in exercise of appellate jurisdiction under Section 91 of the Trade Marks Act, 1999, because the Registrar of Trade Marks is not a civil court and Section 91 does not subject such appeals to the provisions of the Code. Consequently, LPA 136/2023 and LPA 137/2023 were held to be maintainable, the preliminary objection was overruled, and the appeals were directed to be listed for further consideration (on their merits) on 19 September 2023.

## Point of Law Settled

This judgment settles, at least for the Delhi High Court, the important question of when Section 100-A of the Code of Civil Procedure operates to bar a Letters Patent Appeal against a Single Judge's order passed in exercise of appellate jurisdiction under a special statute. The principle it establishes may be summarised as follows:

- The bar under Section 100-A CPC is confined to appeals from a "decree" or "order" as those expressions are defined in the Code — meaning, in the case of an "order," a formal expression of a decision of a *civil court*.

- Where the authority whose decision was under challenge before the Single Judge (such as the Registrar of Trade Marks) is not a civil court, and possesses at most some incidental "trappings" of a court without a statutory fiction deeming it to be one, Section 100-A does not apply merely because the Single Judge exercised "appellate" jurisdiction in a loose sense.

- The Letters Patent remedy stands excluded only where (a) the special statute itself expressly bars a further appeal, or (b) the special statute subjects appeals before the High Court to the provisions of the Code relating to appeals (as the 1940 and 1958 Trade Marks Acts, the Indian Succession Act, and the Land Acquisition Act did, but the 1999 Trade Marks Act does not).

- Judicial precedents dealing with tribunals statutorily deemed to be civil courts (such as the Company Law Board or Motor Accident Claims Tribunals) are not straightforwardly applicable to authorities, like the Registrar of Trade Marks, that enjoy no such deeming fiction.

The ruling has significant practical implications for intellectual property litigation and beyond: it preserves a valuable additional layer of intra-court scrutiny for parties aggrieved by Single Judge decisions in trademark appeals, and more broadly, it offers a structured, replicable framework for resolving similar maintainability disputes arising under other special statutes that are silent on the applicability of the Code to appeals before the High Court.

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**Case Details:** *Promoshirt SM SA Vs. Armasuisse & Anr.*, Order pronounced on 6 September 2023, LPA 136/2023 and LPA 137/2023 (with connected CM Appl. Nos. 8810/2023, 8811/2023, 8813/2023 and 14104/2023), High Court of Delhi at New Delhi, coram of Hon'ble Mr. Justice Yashwant Varma and Hon'ble Mr. Justice Dharmesh Sharma.