The Supreme Court of India, in an order delivered on 21 September 2026, referred to a larger bench the question of whether a state notification under the Commercial Courts Act, 2015 can shift trade mark suits away from the forum prescribed by Section 134 of the Trade Marks Act, 1999. A Bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran, in I.S.D.S. Private Limited v. M/s Khemka Food Products Pvt. Ltd., found its own precedents in direct conflict and stayed the underlying suit pending the reference.
Background
Section 134 of the Trade Marks Act, 1999 bars any court inferior to a District Court from entertaining a suit for trade mark infringement. In Jharkhand, however, the High Court has notified the Civil Judge (Senior Division) as a Commercial Court under Section 3 of the Commercial Courts Act, 2015 for disputes valued between Rs 3 lakh and Rs 1 crore — a category that, by virtue of Section 2(1)(c)(xvii) of that Act, includes intellectual property disputes such as registered and unregistered trade marks. The appellants, facing a trade mark suit before the Civil Judge (Senior Division)-1, Jamshedpur rather than the District Court, argued that Section 134's mandate could not be diluted by a state notification, since the appellate route available under the general Commercial Courts Act regime — appeal to the District Court, with only a restrictive Article 227 challenge thereafter — deprived litigants of the full High Court appeal that a District Court suit under the Trade Marks Act would carry.
The respondents relied on Section 21 of the Commercial Courts Act, 2015, a non-obstante clause giving that Act overriding effect "notwithstanding anything inconsistent" in any other law, arguing that as the later special enactment for commercial disputes, it prevails over the earlier Trade Marks Act forum provision.
Key holdings
1. Two lines of this Court's own precedent conflict. The Bench examined Kandla Export Corporation and Anr. v. OCI Corporation and Anr., (2018) 14 SCC 715, which held that Section 50 of the Arbitration and Conciliation Act, 1996 — as "a self-contained code... exhaustive in nature" — prevails over Section 13(1) of the Commercial Courts Act, 2015, since Parliament was "conscious of Section 50" when it enacted both statutes on the same day without amending it. Against this, the Bench set Jaycee Housing Private Limited and Ors. v. Registrar (General), Orissa High Court and Ors., (2023) 1 SCC 549, which held that Sections 9, 14 and 34 of the Arbitration Act "concede insofar as jurisdiction is concerned" to the Commercial Courts Act, reasoning that the 2015 Act, "being the Act later in time", prevails per Section 21's overriding effect.
2. The Trade Marks Act forum provision squarely raises the same conflict. The Court reasoned: "[I]ntellectual property rights including that of trade marks is only a species [2(c)(xvii)] of the larger genus of commercial disputes... when another special enactment like the Trade Marks Act confers jurisdiction on the District Court by prohibiting institution of suits for specified reliefs in any Court inferior to that of a District Judge, it is not inconsistent with the Commercial Courts Act... The problem occurs only when the notification[s] constitute[] Civil Judges as Commercial Courts. The apparent conflict in the two decisions, according to us, needs to be looked into by a larger bench."
3. State-level divergence compounds the uncertainty. The Bench noted that pecuniary thresholds for Commercial Courts vary by state — in Jharkhand, Civil Judges (Senior Division) handle suits between Rs 3 lakh and Rs 1 crore, so a Section 134 suit valued below Rs 3 lakh still goes to the District Court while one above that threshold goes to the Civil Judge. Kerala, by contrast, initially notified Civil Judges (Senior Division) but later designated District Courts and Additional District Courts as Commercial Courts for the same categories, including trade marks, patents and copyright disputes — "[p]resumably reckoning the anomaly as coming out from the two enactments". The Court held: "[T]he jurisdiction [ought] not to be left to the different notifications issued in the various States... the legislative imprimatur cannot be diluted by the notifications issued by the High Courts."
4. Disposition. The Court held that the conflict between Kandla Export Corporation and Jaycee Housing "needs to be looked into by a larger bench" and that the question "has to be referred to the Larger Bench for resolving the conflict and also settling the law to be uniform throughout the States." Along the way, the Bench also noted its own earlier ruling as the Gujarat High Court in Fun N. Fud v. GLK Associates (authored by Pardiwala, J., as he then was), holding that a Section 9 Arbitration Act application must go to the District Court even where a Civil Judge (Senior Division) is notified as a Commercial Court — consistent with, not a second question referred alongside, the single Kandla Export/Jaycee Housing conflict sent up. It directed the papers be placed before the Chief Justice of India, and stayed Commercial Suit No. 11 of 2023 pending before the Civil Judge (Senior Division)-1, Jamshedpur.
Implications for practitioners
This reference creates immediate uncertainty for intellectual property litigants in every state that has notified subordinate judges as Commercial Courts — a pattern now common well beyond Jharkhand. Counsel filing or defending a trade mark, copyright or patent suit in such a state should check the specific pecuniary threshold and forum notification currently in force locally, since the Court's own survey shows states have taken divergent approaches (Jharkhand retaining Civil Judges; Kerala reverting to District Courts) precisely because of this unresolved conflict.
Litigants with suits currently pending before a Commercial Court constituted at the Civil Judge level should consider whether a forum objection is worth raising now, preserving the point for the eventual larger-bench ruling, particularly where the value of an unrestricted High Court appeal — as opposed to the narrower appellate and Article 227 remedies available under the Commercial Courts Act route — is significant to the client's litigation strategy.
More broadly, the reference reopens the general question of how Kandla Export Corporation's "special code prevails" reasoning interacts with Section 21's non-obstante clause across every special IP and commercial statute, not only trade marks — patent, copyright and design litigation before subordinate Commercial Courts may face parallel challenges once the larger bench rules.