Orissa High Court
Binaya Kumar Naik vs Sanjay Kumar Naik & on 12 August, 2024
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.18217 of 2024
(In the matter of an application under
Article 227 of the Constitution of India, 1950)
Binaya Kumar Naik ....... Petitioner
-Versus-
Sanjay Kumar Naik &
another ....... Opp. Parties
Advocate for the parties
For Petitioner : Mr. B.C. Panda,
Advocate
For Opp. Party No.1 : Mr. S. Dash,
Advocate
For Opp. Party No.2 : Mr. S.K. Mohanty,
Advocate
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CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing: 08.08.2024 Date of Judgment: 12.08.2024
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S.K. Mishra, J. The Writ Petition has been preferred challenging
the order dated 18.07.2024 in ARBP No.02 of 2024 passed by
the District Judge, Cuttack, vide which it was ordered that
the said Court lacks jurisdiction over the subject to entertain
the application filed under Section 9 of the Arbitration and
Conciliation Act, 1996, shortly hereinafter, 'the Act, 1996' and
ordered to transfer the matter to the Commercial Court,
Cuttack.
2. The factual matrix, which led to filing of the
present Writ Petition, is that on 17.05.2022, the Petitioner
and the Opposite Party Nos.1 & 2 entered into a Partnership
Agreement for smooth running of the movie business
inherited from their father in the name and style as M/s.
Brajaraj Movies. The said partnership agreement was reduced
to writing in shape of Deed of Agreement and subsequently
registered with the I.G.R., Odisha, Cuttack on 31.05.2022,
vide registration No.720202200555. The Opposite Party No.1,
instead of extending his cooperation for smooth running of
the business of the firm, allegedly violated the terms of the
said Deed of Agreement and committed breach of trust, as
has been detailed in the Writ Petition. When the Petitioner
tried to contact the Opposite Party No.1 to ascertain the fact
and resolve the issue amicably, the Opposite Party No.1 did
not come forward to resolve the said dispute. Hence, the
Petitioner and the Opposite Party No.2 were constrained to
lodge an F.I.R. against the Opposite Party No.1 in Purighat
W.P.(C) No.18217 of 2024 Page 2 of 36
P.S. on 05.02.2024. They also issued a legal notice on
07.02.2024 for appointment of an Arbitrator in terms of
Clause-15 of the Deed of Agreement dated 17.05.2022, which
was received by the Opposite Party No.1 on 08.01.2024. The
Petitioner and the Opposite Party No.2 thereby requested to
extend consent within seven days from the date of receipt of
the said notice for appointment of an Arbitrator to arbitrate
and resolve the said dispute. However, the Opposite Party
No.1, after receipt of the said legal notice dated 07.02.2024
for appointment of an Arbitrator, gave a reply vide letter dated
22.02.2024 expressing his unwillingness for giving his
consent for appointment of the Arbitrator to resolve the said
dispute. Finding no other way out, the Petitioner preferred an
application under Section 11(6) of the Act, 1996 before this
Court praying for appointment of an Arbitrator in terms of
Clause 15 of the Deed of Agreement dated 17.05.2022, which
has been registered as ARBP No.09 of 2024 and the same is
still pending for consideration before this Court. As the
Opposite Party No.1 has failed to perform his duties in
contravention of terms and conditions of Deed of Agreement,
the Petitioner, pending consideration of his application for
W.P.(C) No.18217 of 2024 Page 3 of 36
appointment of an Arbitrator by this Court, was being
constraint to approach the District Judge, Cuttack by filing
an application under Section 9 of the Act, 1996 for grant of an
order of interim injunction against the Opposite Party No.1,
thereby restraining the Opposite Party No.1 or his agents from
telecasting the movies and songs of M/s. Brajaraj Movies in
any form through television media, satellite broadcasting,
F.M. channels, mobile operator, cinema halls, DVD & You
Tube Channels and to restrain him from proceeding with the
production of the Movie "I Love You-2" and also using the title
and logo of M/s. Brajaraj Movies in any manner till the
dispute is resolved through arbitration.
3. The said petition, registered as ARBP No.02 of
2024, was admitted and notice was issued to the Opposite
Parties. Being noticed, the Opposite Party No.1 duly appeared
and filed objection/show cause on 27.06.2024. On the very
day, the District Judge, Cuttack was pleased to pass an
interim order restraining the Opposite Party No.1 from
proceeding with the release of the film "I Love You-2" and
using the logo and banner of M/s. Brajaraj Movies till the
next date and the matter stood adjourned to 11.07.2024. On
W.P.(C) No.18217 of 2024 Page 4 of 36
the said date, the Petitioner filed another application for grant
of interim order as well as an application for continuance of
the interim order dated 27.06.2024 whereas, the Opposite
Party No.1 filed applications under Order 7, Rule11 of C.P.C.
for rejection of the ARBP No.02 of 2024 and for vacating the
stay order dated 27.06.2024. However, the District Judge,
Cuttack was pleased to extend the interim order and posted
the matter to 18.07.2024. On the said date, the Petitioner
filed his Reply in response to the application filed by the
Opposite Party No.1 under Order 7 Rule, 11 of C.P.C. so also
to the application for vacation of stay. However, the District
Judge, Cuttack, though extended the interim order till the
next date, but on a wrong noting and misconstruing the
provisions enshrined under the Act, 1996 as well as the
Commercial Courts Act, 2015, shortly hereinafter, 'CC Act,
2015' and relying on the Judgment of the Supreme Court in
Jaycee Housing Pvt. Ltd. & others Vrs. Registrar
(General), Orissa High Court, Cuttack & others, reported in
2022 Live Law (SC) 860, transferred the case to the Court of
the Senior Civil Judge (Commercial Court), Cuttack on the
ground of lack of jurisdiction. While passing the said order,
W.P.(C) No.18217 of 2024 Page 5 of 36
the District Judge, Cuttack also directed to dispose of the said
matter on or before 23.07.2024 on merit in accordance with
law, with an observation not to extend the interim order in a
causal manner. Hence this Writ Petition.
4. The said order passed by the District Judge,
Cuttack dated 18.07.2024 passed in ARBP No.02 of 2024 has
been challenged on the following grounds:
(i) The same is contrary to the provisions of law
enshrined under the Act, 1996 as well as the
CC Act, 2015.
(ii) The Court below completely misconstrued
the decision rendered by the Supreme Court
in Jaycee Housing Pvt. Ltd. (supra).
(iii) The Court below misconstrued the facts and
circumstances of the Petitioner's case and
wrongly rendered a finding that the case
involved is pertaining to violation of
intellectual property right and loss and the
valuation of the same appears to be more
than five lakhs, forgetting the fact that the
Petitioner has filed the application under
W.P.(C) No.18217 of 2024 Page 6 of 36
Section 9 of the Act, 1996 for grant of interim
relief till disposal of the dispute through
arbitration in which there is no specified
value, as envisaged under section 3 of the
Commercial Courts Act, 2015.
(iv) The order passed by the District Judge,
Cuttack is also contrary to Section 6 of the
CC Act, 2015 which mandates that the CC
Act shall have jurisdiction to try all suits and
applications relating to a commercial dispute
of a specified value, though, in the instant
case, there is no specified value as on the
date.
(v) The impugned order is also in contravention
to the provisions enshrined under Sections
10, 12 & 15 of the CC Act, 2015 and section
2(1)(e) of the Act, 1996.
(vi) Since the dispute has no specified value, as
required under the provisions of the CC Act,
2015, the application under Section 9 of the
Act, 1996 cannot come under the definition
W.P.(C) No.18217 of 2024 Page 7 of 36
of Section 2(b),(c), vii, xv and xvii of the CC
Act, 2015, as referred to in the impugned
order, and the said order suffers from
illegalities and infirmities and is liable to be
quashed.
5. Reiterating the grounds agitated in the Writ
Petition, Mr. Panda, learned Counsel for the Petitioner,
drawing attention of this Court to the provisions enshrined
under section 2 (1)(e) of the Act, 1996 so also under Section 6,
10 and 15 of the C.C Act, 2015 submitted that the District
Judge, Cuttack, being the Principal Civil Court, is only
competent to hear the application filed under section 9 of the
Act, 1996. The section 9 application being in the nature of
interlocutory application, having no valuation, the District
Judge should not have transferred the said application to the
Commercial Court, Cuttack, which lacks jurisdiction to try
the said petition. In view of the provisions enshrined under
section 6 read with section 15 of the CC Act, 2015, only suits
and applications, including applications under the Act, 1996
relating to a commercial dispute of a specified value can only
be tried by the Commercial Court. The specified value, as per
W.P.(C) No.18217 of 2024 Page 8 of 36
the amended provisions under the CC Act, 2015, being
Rs.3,00,000/- and admittedly the section 9 application filed
by the Petitioner having no valuation and with a prayer for
interim injunction, cannot be heard by the Commercial
Court. Only the District Judge, Cuttack, being the Principal
Civil Court, is competent to hear and decide the said
application. Hence, the Impugned order dated 18.07.2024
passed in ARBP No.02 of 2024, being contrary to the legal
provisions enshrined under the Act, 1996 so also the CC Act,
2015, deserves interference and be quashed and direction be
given to the District Judge, Cuttack to hear the said
application filed under section 9 of the Act, 1996 and dispose
of the same on merit in the interest of justice.
6. To substantiate his submission, Mr. Panda,
learned Counsel for the Petitioner, relying on the judgment of
the Supreme Court in Jaycee Housing Pvt. Ltd. (supra),
submitted that though the District Judge, Cuttack relied on
the said judgment in the impugned order, but misconstrued
the said decision of the Supreme Court. Mr. Panda submitted
that, vide the said decision, it was never held by the Supreme
Court that all the cases under sections 9, 14, and 24 of the
W.P.(C) No.18217 of 2024 Page 9 of 36
Act, 1996 have to be filed and adjudicated by the Commercial
Court irrespective of the valuation. Mr. Panda, relying on
para-10 of the said judgment of the Supreme Court,
submitted that it was also held vide the said judgment that as
per section 15 of the CC Act, 2015, all suits and applications,
including applications under the Act, 1996, relating to a
commercial dispute of "specified value" shall have to be
transferred to the Commercial Court.
7. Mr. Panda, learned Counsel, referring to para-15 of
the order of the Madhya Pradesh High Court at Jabalpur,
reported in 2021 SCC OnLine MP 457 (Yashwardhan
Raghuwanshi Vs. District & Sessions Judge and Another)
submitted that the Court of District Judge, being the Principal
Civil Court of original jurisdiction, would be competent to
decide the matters/disputes filed under the provisions of
section 9 , 14, 34 and 36 of the Act, 1996 so also under the
provisions of the CC Act, 2015, regardless of the value of
claim and it can only distribute such work amongst any of the
Additional District Judges under his supervision, but not to
any Court of Civil Judge Class-I or Senior Civil Judge, or any
Court of Small Causes.
W.P.(C) No.18217 of 2024 Page 10 of 36
8. In response to the argument advanced by Mr.
Panda, learned Counsel for the Petitioner, Mr. Dash, learned
Counsel for Opposite Party No.1, drawing attention of this
Court to the definition of "Commercial Court", "commercial
dispute" and "Specified Value", as defined under sections
2(1)(b), 2(1)(c) & 2(1)(i) respectively, so also section 3(3), 6 and
10(3) of the C.C. Act, 2015, submitted that in view of the
definition of commercial dispute under the CC Act, 2015 read
with section 6 and 10(3) of the CC Act, 2015, all applications
and appeals, arising out of such arbitration under the
provisions of the Act, 1996, that would ordinarily lie before
any principal Civil Court of original jurisdiction in a district
(not being High Court), has to be filed in and heard and
disposed of by the Commercial Court exercising territorial
jurisdiction over such arbitration, where such Commercial
Court has been constituted. Since ARBP No.02 of 2024 has
been preferred under section 9 of the Act, 1996, instead of
filing such an application before the Commercial Court,
Cuttack, the Petitioner wrongly filed such an application
before the District Judge, Cuttack. Hence, the Opposite Party
No.1, in addition to filing an application for vacation of stay,
W.P.(C) No.18217 of 2024 Page 11 of 36
also filed an application under Order-7, Rule 11 of C.P.C. for
rejection of the said petition on the ground of lack of
jurisdiction of the District Judge, Cuttack so also on some
other grounds. However, the District Judge, Cuttack, instead
of hearing such application first, ordered for disposing of all
the applications together with section 9 application. However,
the District Judge ultimately thought it prudent to transfer
the said proceeding to the Commercial Court, in terms of the
legal provisions under the CC Act, 2015, referring to the
Judgment of the Supreme Court in Jaycee Housing Pvt. Ltd.
(supra).
9. Mr. Dash, learned Counsel for the Opposite Party
No.1, drawing attention of this Court to the legal provisions
under Section 10(3) of the CC Act, 2015, submitted that any
application under the Act, 1996, pertaining to a commercial
dispute, has to be moved before the Commercial Court after
formation of the Commercial Court and not before the
Principal Civil Court of original jurisdiction in a district and
the District Judge, Cuttack should have returned the
application filed under Section 9 of the Act, 1996 to the
Petitioner. However, on being so pointed out by his client, the
W.P.(C) No.18217 of 2024 Page 12 of 36
District Judge, Cuttack ordered for transfer of the said
proceeding to the Commercial Court, Cuttack. There being no
infirmity in the impugned order and the same having been
passed in terms of the legal provisions under the CC Act,
2015, the Writ Petition deserves to be dismissed.
10. From the pleadings made in the Writ Petition,
grounds urged therein to challenge the impugned order so
also submissions made at the Bar, the following points
emerge to be answered in the present Writ Petition.
(i) In absence of any valuation, in an application
filed under section 9 of the Act, 1996,
whether the Commercial Court, constituted
under sub-section (1) of section 3 of the CC
Act, 2015, is competent to hear such
application?
(ii) Whether the District Judge was justified to
transfer the section 9 application, registered
as ARBP No.02 of 2024, to the Court of
Senior Civil Judge (Commercial Court),
Cuttack?
W.P.(C) No.18217 of 2024 Page 13 of 36
11. Since both points are interrelated, the same are
dealt with together for the sake of brevity and clarity. Before
answering the points as detailed above, this Court deems it
appropriate to reproduce below section 2(1)(e)(i) and 9 of the
Act, 1996 and Section 2(1)(b),(c),(i), 3,6,10,12, 15 and 21 of
the CC Act, 2015 for ready reference:
"Section 2(1)(e)(i) & 9 of the Arbitration Act, 1996:
2. Definitions-(1) In this Part, unless the context
otherwise requires,-
(e) "Court" means -
(i) in the case of an arbitration other than
international commercial arbitration, the principal Civil
Court of original jurisdiction in a district, and includes the
High Court in exercise of its ordinary original civil
jurisdiction, having jurisdiction to decide the questions
forming the subject matter of the arbitration if the same
had been the subject matter of a suit, but does not include
any Civil Court of a grade inferior to such principal Civil
Court, or any Court of Small Causes;
9. Interim measures, etc., by Court.--(1) A party may,
before or during arbitral proceedings or at any time after
the making of the arbitral award but before it is enforced
in accordance with section 36, apply to a court--
(i) for the appointment of a guardian for a minor or
person of unsound mind for the purposes of
arbitral proceedings; or
(ii) for an interim measure of protection in respect of
any of the following matters, namely:--
(a) the preservation, interim custody or sale of
any goods which are the subject-matter of
the arbitration agreement;
(b) securing the amount in dispute in the
arbitration;
(c) the detention, preservation or inspection of
any property or thing which is the subject-
matter of the dispute in arbitration, or as to
W.P.(C) No.18217 of 2024 Page 14 of 36
which any question may arise therein and
authorising for any of the aforesaid
purposes any person to enter upon any land
or building in the possession of any party,
or authorising any samples to be taken or
any observation to be made, or experiment
to be tried, which may be necessary or
expedient for the purpose of obtaining full
information or evidence;
(d) interim injunction or the appointment of a
receiver;
(e) such other interim measure of protection as
may appear to the Court to be just and
convenient, and the Court shall have the
same power for making orders as it has for
the purpose of, and in relation to, any
proceedings before it.
(2) Where, before the commencement of the arbitral
proceedings, a Court passes an order for any interim
measure of protection under sub-section (1), the arbitral
proceedings shall be commenced within a period of ninety
days from the date of such order or within such further
time as the Court may determine.
(3) Once the arbitral tribunal has been constituted,
the Court shall not entertain an application under sub-
section (1), unless the Court finds that circumstances exist
which may not render the remedy provided under section
17 efficacious.]
Sections 2(1)(b),(c),(i), 3, 6, 10, 15 & 21 of the
Commercial Courts Act, 2015:
2. Definitions.--(1)
(b) "Commercial Court" means the Commercial
Court constituted under sub-section (1) of section 3;
(c) "commercial dispute" means a dispute
arising out of--
(i) ordinary transactions of merchants, bankers,
financiers and traders such as those relating
to mercantile documents, including
enforcement and interpretation of such
documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft
engines, aircraft equipment and helicopters,
W.P.(C) No.18217 of 2024 Page 15 of 36
including sales, leasing and financing of the
same;
(v) carriage of goods;
(vi) construction and infrastructure contracts,
including tenders;
(vii) agreements relating to immovable
property used exclusively in trade or
commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
(xiii) subscription and investment agreements
pertaining to the services industry including
outsourcing services and financial services;
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development agreements;
(xvii) intellectual property rights relating to
registered and unregistered trademarks,
copyright, patent, design, domain names,
geographical indications and
semiconductor integrated circuits;
(xviii) agreements for sale of goods or provision of
services;
(xix) exploitation of oil and gas reserves or other
natural resources including electromagnetic
spectrum;
(xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the
above; and
(xxii) such other commercial disputes as may be
notified by the Central Government.
Explanation.--A commercial dispute shall not cease
to be a commercial dispute merely because--
(a) it also involves action for recovery of
immovable property or for realisation of monies
out of immovable property given as security or
involves any other relief pertaining to
immovable property;
(b) one of the contracting parties is the State or
any of its agencies or instrumentalities, or a
private body carrying out public functions;
(i) "Specified Value", in relation to a commercial
dispute, shall mean the value of the subject-matter
in respect of a suit as determined in accordance
with section 12 1[which shall not be less than three
W.P.(C) No.18217 of 2024 Page 16 of 36
lakh rupees] or such higher value, as may be notified
by the Central Government.
3. Constitution of Commercial Courts (1) The
State Government, may after consultation with the
concerned High Court, by notification, constitute such
number of Commercial Courts at District level, as it may
deem necessary for the purpose of exercising the
jurisdiction and powers conferred on those courts under
this Act:
Provided that with respect to the High Courts having
ordinary original civil jurisdiction, the State Government
may, after consultation with the concerned High Court, by
notification, constitute Commercial Courts at the District
Judge level:
Provided further that with respect to a territory over
which the High Courts have ordinary original civil
jurisdiction, the State Government may, by
notification, specify such pecuniary value which
shall not be less than three lakh rupees and not
more than the pecuniary jurisdiction exercisable by
the District Courts, as it may consider necessary.]
(1A) Notwithstanding anything contained in this Act,
the State Government may, after consultation with the
concerned High Court, by notification, specify such
pecuniary value which shall not be less than three
lakh rupees or such higher value, for whole or part of
the State, as it may consider necessary.]
(2) The State Government shall, after consultation,
with the concerned High Court specify, by notification, the
local limits of the area to which the jurisdiction of a
Commercial Court shall extend and may, from time to time,
increase, reduce or alter such limits.
(3) The [State Government may], with the concurrence
of the Chief Justice of the High Court appoint one or more
persons having experience in dealing with commercial
disputes to be the Judge or Judges, of a [Commercial Court
either at the level of District Judge or a court below the
level of a District Judge].
6. Jurisdiction of Commercial Court.--The
Commercial Court shall have jurisdiction to try all suits
and applications relating to a commercial dispute of a
Specified Value arising out of the entire territory of the
State over which it has been vested territorial jurisdiction.
Explanation.--For the purposes of this section, a
commercial dispute shall be considered to arise out of the
W.P.(C) No.18217 of 2024 Page 17 of 36
entire territory of the State over which a Commercial Court
has been vested jurisdiction, if the suit or application
relating to such commercial dispute has been instituted as
per the provisions of sections 16 to 20 of the Code of Civil
Procedure, 1908 (5 of 1908).
10. Jurisdiction in respect of arbitration
matters.- Where the subject matter of an arbitration is a
commercial dispute of a specified value and--
(1) If such arbitration is an international
commercial arbitration, all applications or
appeals arising out of such arbitration under
the provisions of the Arbitration and
Conciliation Act, 1996 (26 of 1996) that have
been filed in a High Court, shall be heard
and disposed of by the Commercial Division
where such Commercial Division has been
constituted in such High Court.
(2) If such arbitration is other than an
international commercial arbitration, all
applications or appeals arising out of such
arbitration under the provisions of the
Arbitration and Conciliation Act, 1996 (26 of
1996) that have been filed on the original
side of the High Court, shall be heard and
disposed of by the Commercial Division
where such Commercial Division has been
constituted in such High Court.
(3) If such arbitration is other than an
international commercial arbitration, all
applications or appeals arising out of
such arbitration under the provisions of
the Arbitration and Conciliation Act,
1996 (26 of 1996) that would ordinarily
lie before any principal civil court of
original jurisdiction in a district (not
being a High Court) shall be filed in, and
heard and disposed of by the
Commercial Court exercising territorial
jurisdiction over such arbitration where
such Commercial Court has been
constituted.
12. Determination of Specified Value.--(1) The
Specified Value of the subject-matter of the commercial
dispute in a suit, appeal or application shall be determined
in the following manner:--
(a) where the relief sought in a suit or
application is for recovery of money, the
W.P.(C) No.18217 of 2024 Page 18 of 36
money sought to be recovered in the suit or
application inclusive of interest, if any,
computed up to the date of filing of the suit or
application, as the case may be, shall be
taken into account for determining such
Specified Value;
(b) where the relief sought in a suit, appeal or
application relates to movable property or to
a right therein, the market value of the
movable property as on the date of filing of
the suit, appeal or application, as the case
may be, shall be taken into account for
determining such Specified Value;
(c) where the relief sought in a suit, appeal or
application relates to immovable property or
to a right therein, the market value of the
immovable property, as on the date of filing
of the suit, appeal or application, as the case
may be, shall be taken into account for
determining Specified Value; 1[and]
(d) where the relief sought in a suit, appeal
or application relates to any other
intangible right, the market value of the
said rights as estimated by the plaintiff
shall be taken into account for
determining Specified Value;
(2) The aggregate value of the claim and
counterclaim, if any as set out in the statement of claim
and the counterclaim, if any, in an arbitration of a
commercial dispute shall be the basis for determining
whether such arbitration is subject to the jurisdiction of a
Commercial Division, Commercial Appellate Division or
Commercial Court, as the case may be.
(3) No appeal or civil revision application under
section 115 of the Code of Civil Procedure, 1908 (5 of
1908), as the case may be, shall lie from an order of a
Commercial Division or Commercial Court finding that it
has jurisdiction to hear a commercial dispute under this
Act.
15. Transfer of Pending Cases-- (1) All suits and
applications, including applications under the Arbitration
and Conciliation Act, 1996 (26 of 1996), relating to a
commercial dispute of a Specified Value pending in a
High Court where a Commercial Division has been
constituted, shall be transferred to the Commercial
Division.
(2) All suits and applications, including applications
under the Arbitration and Conciliation Act, 1996 (26 of
1996), relating to a commercial dispute of a specified
W.P.(C) No.18217 of 2024 Page 19 of 36
value pending in any civil court in any district or area in
respect of which a Commercial Court has been constituted,
shall be transferred to such Commercial Court:
Provided that no suit or application where the final
judgment has been reserved by the court prior to the
constitution of the Commercial Division or the Commercial
Court shall be transferred either under subsection (1) or
subsection (2)
(3) Where any suit or application, including an
application under the Arbitration and Conciliation
Act, 1996 (26 of 1996), relating to a commercial
dispute of specified value shall stand transferred to
the Commercial Division or Commercial Court under
subsection (1) or subsection (2), the provisions of this
Act shall apply to those procedures that were not
complete at the time of transfer.
(4) The Commercial Division or Commercial Court, as
the case may be, may hold case management hearings in
respect of such transferred suit or application in order to
prescribe new timelines or issue such further directions as
may be necessary for a speedy and efficacious disposal of
such suit or application in accordance [with Order XVA] of
the Code of Civil Procedure, 1908 (5 of 1908):
Provided that the proviso to sub rule (1) of Rule 1 of
Order V of the Code of Civil Procedure, 1908 (5 of 1908)
shall not apply to such transferred suit or application and
the court may, in its discretion, prescribe a new time
period within which the written statement shall be filed.
(5) In the event that such suit or application is not
transferred in the manner specified in subsection (1),
subsection (2) or subsection (3), the Commercial Appellate
Division of the High Court may, on the application of any of
the parties to the suit, withdraw such suit or application
from the court before which it is pending and transfer the
same for trial or disposal to the Commercial Division or
Commercial Court, as the case may be, having territorial
jurisdiction over such suit, and such order of transfer shall
be final and binding.
21. Act to have overriding effect --Save as
otherwise provided, the provisions of this Act shall have
effect, notwithstanding anything inconsistent therewith
contained in any other law for the time being in force or in
any instrument having effect by virtue of any law for the
time being in force other than this Act."
(Emphasis supplied)
W.P.(C) No.18217 of 2024 Page 20 of 36
12. Though "Court" is defined under Section 2(1)(e) of
the Act, 1996 to be the principal Civil Court of original
jurisdiction in the district, but in the provisions enshrined
under Section 10(3) of the CC Act, 2015, it has been clearly
enumerated that, where the subject matter of an arbitration is
a "commercial dispute" of "Specified Value" and such
arbitration is other than the international commercial
arbitration, all applications or appeals arising out of such
arbitration under the provisions of the Act, 1996, that would
ordinarily lie before any principal Civil Court of original
jurisdiction in a district (not being a High Court) shall be filed
in, and heard and disposed of by the Commercial Court
exercising territorial jurisdiction over such arbitration where
such Commercial Court has been constituted.
13. The word "commercial dispute" has been defined
under section 2(1)(c) of the C.C. Act, 2015, which clearly
includes a dispute arising out of partnership agreements in
terms of sub-clause (xv) under clause (c) of section 2(1) of the
C.C Act, 2015. Similarly, the word "Specified Value" used in
various provisions of the C.C Act, 2015 has been defined
under section 2(1)(i). Specified Value, in relation to a
W.P.(C) No.18217 of 2024 Page 21 of 36
commercial dispute, shall mean the value of the subject
matter in respect of a "suit", which is to be determined in
accordance with section 12 and the same shall not be less
than three lakh rupees or such higher value, as may be
notified by the Central Government.
14. So far as the Order of Madhya Pradesh High Court
in Yashwardhan Raghuwanshi (supra) cited by the learned
Counsel for the Petitioner, it was held as follows:
"15. In view of the above discussions, the
present petition deserves to succeed. The Entry No.45
of the impugned order dated 20.10.2020 is set aside.
It is hereby declared that the Court of District Judge as
the Principal Civil Court of original jurisdiction would
be competent to decide the matters/disputes filed
under the provisions of Sections 9, 14, 34 & 36 of the
Arbitration Act and also under the provisions of the
Commercial Courts Act regardless of the value of
claim. However, the District Judge by virtue of Section
7 read with Section 15 of the Civil Courts Act would be
entitled to distribute such work amongst any of the
Additional District Judges under his supervision, but
not to any Court of Civil Judge Class-I or Senior Civil
Judge, or any Court of Small Causes."
15. However, the High Court of Bombay in Gaurang
Manguesh Suctancar Vs. Sonia Gaurang Suctancar,
reported in MANU/MH/2578/2020, dealing with an issue as
to whether the Commercial Court under the CC Act, 2015 was
justified to refuse to entertain an application under Section 9
W.P.(C) No.18217 of 2024 Page 22 of 36
of the Act, 1996 and return it to the Petitioner/Applicant to be
presented before the appropriate Court, held as follows:
"Issue:
2. For adjudicating an application under
Section 9 of the Arbitration Act, which is the
forum: Is it the court as defined under Section 2
(1) (e) of the Arbitration Act, read with Section 5
of the Goa Civil Courts Act 1965 or is it the
Commercial Court under Section 3 (1) of the
Amended Commercial Courts Act 2015?
92. Evidently, the Commercial Courts Act is a later
enactment, but it does not work at cross purpose with
the Arbitration Act. In fact, both aim at speedy
adjudication. The Commercial Courts Act covers all the
commercial disputes, whereas the Arbitration Act
covers only those disputes that involve arbitration. As
Kandla Export Corporation has held, both the
enactments call for a harmonious interpretation. If at
all there is any conflict, as to the substantive
provisions, the Arbitration Act prevails; but it has left
the procedural niceties to the Commercial Courts Act.
Section 10 (3) of the Commercial Courts act and the
Remote Conditional:
93. Let us revisit Section 10 (3) of the Commercial
Courts Act. "If it is a domestic arbitration, all
applications or appeals arising out of arbitration "that
would ordinarily lie before any principal civil court of
original jurisdiction" in a district (not being a High
Court) shall be filed in, and heard and disposed of by
the Commercial Court".
94. Sub-section (3) begins with a conditional "if.
Then, it delineates on how "all applications or appeals"
arising out of arbitration should be adjudicated. They
"would ordinarily" lie before the "principal civil court of
original jurisdiction." In that sentence, "ordinarily" is
an adverbial emphasiser; let us keep it aside. Now the
sentence is "they would lie before the principal civil
court of original jurisdiction." It is, grammatically
speaking, the 'second conditional' employing the
subjunctive "would". If refers to an unlikely or
improbable future event or arrangement. What could
have been an ordinary course of remedial event now
stands altered. This uncertainty or altered course
under sub-section (3) is because of a statutory
development-the advent of the Commercial Courts Act.
W.P.(C) No.18217 of 2024 Page 23 of 36
So, to repeat, what could have been the subject of
adjudication before the principal civil court of original
jurisdiction, now "shall be filed in, and heard and
disposed of by the Commercial Court exercising
territorial jurisdiction over such arbitration where such
Commercial Court has been constituted."
95. Because, now, the Commercial Courts have
been established, "all applications" under the
Arbitration Act should lock, stock, and barrel go before
the Commercial Courts. So the concept of" the principal
civil court of original jurisdiction" no longer applies.
Instead, what matters is the "Commercial Court". That
accepted, which is the Commercial Court-the Senior
Civil Judge's Court or the District Court? In Goa, the
District Court is no longer the primary Commercial
Court; it is, in fact, a Commercial Appellate Court.
96. In this context, I may once again quote G.P.
Singh, G.P. Singh (n 13) 91, who says that "the words
of a statute are first understood in their natural,
ordinary or popular sense and phrases and sentences
are construed according to their grammatical meaning,
unless that leads to some absurdity or unless there is
something in the context, or in the object of the statute
to suggest the contrary." Here, if sub-section (3) is not
read in its ordinary grammatical sense, it will lead to
absurdity.
The Decisions:
97. The respondent wants me to treat co-equal
Bench decisions in D.M. Corporation and Jaiswal
Ashoka Infrastructure as per incuriam. They have
been rendered, as she points out, in ignorance of
Kandla Export Corporation. As the Supreme Court has
held in B. Satyanarayana Rao, the rule of per incuriam
can be applied "where a Court omits to consider a
binding precedent of the same court or the superior
court rendered on the same issue or where a court
omits to consider any statute while deciding that
issue."
98. In D.M. Corporation, a learned Single Judge
(Dr. Shalini Phansalkar-Joshi, J.) has, on facts, noted
that the dispute concerns an arbitration agreement,
the subject-matter of which is above Rs. 1 crore; it is a
dispute of commercial nature. So even if the relief
claimed is mere injunction, because of Section
10(3) of the Commercial Courts Act, the Principal
District Judge has correctly transferred the
arbitration application to the Commercial Court.
The impugned order passed by the District Court
W.P.(C) No.18217 of 2024 Page 24 of 36
being just, legal, and correct; it warranted no
interference.
99. In Jaiswal Ashoka Infrastructure, another
learned Single Judge (A.S. Chandurkar, J) has
observed that because of Section 15(2) of the
Commercial Courts Act, suits and applications in
relation to a commercial dispute pending in any civil
court must be transferred to the Commercial Court.
That is, the civil court "ceases to have jurisdiction to
entertain an application under the provisions of the
[Commercial Courts] Act in relation to a commercial
dispute of a specified value." Once the court lacks
inherent jurisdiction, express or implied consent,
failure to raise jurisdictional object, or even
acquiescence cannot clothe the court with jurisdiction.
100. I have already elaborately discussed
Kandla Export Corporation, and I see no
precedential transgression in D.M. Corporation or
Jaiswal Ashoka Infrastructure.
Conclusion:
(1) Contrary to the respondent's contentions,
the Notification, dt. 05.05.2020, issued by
the Government of Goa, is in tune with the
legislative mandate under Sections 3 and 3A
of the Commercial Courts Act, 2015.
(2) In the State of Goa, the designated
District Courts are the Appellate Commercial
Courts, and the Senior Civil Judges' Courts
are the Commercial Courts.
(3) Even adjudication of an application
under Section 9 of the Arbitration Act
must be before the Commercial Court,
and that Commercial Court need not be
the principal civil court of original
jurisdiction.
(4) There is no conflict between the
Arbitration and Conciliation Act 1996
and the Commercial Courts Act 2015. If
at all we maintain the distinction, the
former Act deals with the substantive
rights of the parties to the arbitration,
and the latter Act with the procedural
essentials, the choice of the forum being
a part of it.
W.P.(C) No.18217 of 2024 Page 25 of 36
(5) As Kandla Export Corporation has held,
regarding any commercial arbitral dispute,
the Arbitration and Conciliation Act 1996
determines, among other things, the
appellate remedies and the Commercial
Courts Act 2015 provides for the forum and
adjudicatory procedure.
Result:
As a result, I hold that the Ad-hoc Senior Civil
Judge, "A" Court, Panaji, has failed to exercise
the jurisdiction vested in it as the Commercial
Court. Its returning the petitioner's application to be
presented "before proper court" is erroneous and
unsustainable, for it is, by itself, the proper court. The
impugned Order, dt. 08.07.2020, is set aside.
So the Commercial Court at North Goa, Panaji, will
have the CMA Stamp No. 243/2020 restored to file
and adjudicated on merits, after giving the regular
number."
(Emphasis supplied)
16. The Division Bench of this Court in M.G. Mohanty
and others Vs. State of Odisha and others, reported in
2022(III)ILR-CUT-992, while deciding the issue regarding
constitutional validity of section 10(3) of the CC Act, 2015 in a
batch of cases, took note of both the said Orders of Madhya
Pradesh High Court so also Bombay High Court. The Division
Bench disagreed with the reasoning of the High Court of
Madhya Pradesh in Yashwardhan Raghuwanshi (supra),
whereas, respectfully agreed with the views of Bombay High
Court in Gaurang Manguesh Suctancar (supra) and observed
as follows:
W.P.(C) No.18217 of 2024 Page 26 of 36
"39. In Yashwardhan Raghuwanshi v.
District & Sessions Judge (supra), the Madhya
Pradesh High Court relied on the decision of the
Supreme Court of India in State of Maharashtra,
through Executive Engineer v. Atlanta Limited (2014)
11 SCC 619 to hold that the Court of superior most
jurisdiction in a district is the Court of the District
Judge. It concluded that:
"14......Segregation of an arbitration
matters on the basis of a pecuniary
limit is not what the law provides for.
All the arbitration matters,
irrespective of the value of claim, are
required to be adjudicated by
Principal Civil Court of original
jurisdiction. Therefore, it is clear that
in respect of commercial disputes
involving an arbitration dispute only
the Commercial Court of the status of
District Judge or Additional District
Judge would be the competent court
to entertain the matters under
Sections 9, 14, 34 & 36 of the
Arbitration Act."
42. In any event, this Court is unable to
agree with the reasoning of the High Court of
Madhya Pradesh in Yashwardhan Raghuwanshi
(supra). In particular, the Court would like to refer to
the Parliamentary intent in enacting the CC Act in
2015 much after the A&C Act of 2016 and the SOR not
only of the Bill introduced in 2015 but also the SOR of
the Bill introduced in 2018, amending the said statute.
The debates in the Parliament in this regard are
instructive. In defending its decision to expand the
scope of commercial disputes beyond those which
were of high value, three aspects that were mentioned
on behalf of the Government defending the Bill in the
Parliament, which read as under:
"Now, what really has transpired in
December 2017? As has already been
mentioned by the hon. Minister, in
December, 2017, the Government had
established a total of 247 commercial
courts across the country. But, the non-
exhausted list of 22 disputes, termed as
commercial disputes, has also been
brought in. To increase the efficiency of the
system, there are still many enactments
and many things which we need to correct
W.P.(C) No.18217 of 2024 Page 27 of 36
and this is just one part of the correction to
improve the ease of doing business. By
bringing the jurisdiction to three lakhs, we
will actually be bringing judicial
accessibility to a wider audience and to a
larger number of people. By making it
available to a larger number of people, we
will be resolving a larger number of
disputes. It is in this context that the
jurisdiction has been reduced after
studying the data in detail.
This particular amendment has been brought in
with the specific value which was determined under
Section 2 (1) (i), where the minimum pecuniary
jurisdiction is mentioned, which was one crore earlier
before the Ordinance, now it has been brought to three
lakhs. This jurisdiction will initiate more such disputes
to have a faster disposal.
As I have mentioned earlier, under the Charter,
there are Chartered High Courts and non-Chartered
High Courts. So, certain original jurisdictions are
vested with certain High Courts and not with every
High Court. This was one impediment in establishing
commercial divisions. So, there was a bar of some sort.
To do away with the bar, this particular enactment
has been brought in and this is another major change
which has been brought in through this
particular Bill.
The third aspect of the commercial
appellate court is that normally at the District
Level, either a District Judge or a Judge below
the level of District Judge, will be notified as the
Commercial Court Judge. Then the appeal need
not go to the High Court. The appeal can go to
the District Judge. That is also a part of this
particular enactment."
43. The legislature appears to have left it open to
the High Court and the State government either to
appoint a Civil Judge (Senior Division) or an Additional
District Judge as the Commercial Court of first
instance to expedite the adjudication of commercial
disputes. It is interesting to note that there are
several States that have constituted Commercial
Courts both at the District Judge level as well as
below the District Judge level. In Gujarat, the
Courts of the Additional District Judges in Bhuj, Anjar,
Gandhidham and Bhachau have been constituted for
hearing arbitration matters whereas the Courts of the
Principal Senior Civil Judge in these places are for
W.P.(C) No.18217 of 2024 Page 28 of 36
hearing other commercial disputes. In Karnataka, in
some districts, it is the Principal D&SJ and in others
the AD&SJ. In Bihar, depending on the pecuniary
value, it could be the District Judge or the Sub-Judge.
In Uttarakhand, it is the Additional District Judge
Commercial Court, Dehradun. The intent clearly
was to expand the power and to bring in more
Courts under the rubric of 'Commercial Courts'.
Considering that the specified value was being
lowered, it was but natural to allow Courts below
the rank of the District Judge to be designated
as such.
44. Section 10(3) of the CC Act specifically
deals with arbitrations, 'other than international
commercial arbitrations'. The jurisdiction in
respect of such disputes would now be based
with the Commercial Courts, although earlier it
was with a principal Civil Court, which would
ordinarily exercise jurisdiction under Section
2(1)(e) of the A&C Act. The orders passed by the
D&SJ on 7th July 2021, transferring the
arbitration petitions to the Court of the Senior
Civil Judge Commercial Court, was only by way
of implementation of these provisions.
46. There might be an anomaly inasmuch as
arbitral disputes of a commercial value of less than
Rs.3 Lacs may have to be dealt with directly by the
D&SJ in terms of the definition under Section 2(1)(e) of
the A&C Act and appeal against which would lie to the
commercial appellate division in the High Court. But
none of the petitions before this Court has that fact
situation. The questions is, therefore, purely academic.
Nevertheless, it will be open to the State Government
to revise its notification in view of the above anomaly.
48. At this stage, it must be pointed out that this
Court's attention has been drawn to the Judgment of
the Bombay High Court in Gaurang Mangesh
Suctancar v. Sonia Gaurang Suctancar (Supra).
The Bombay High Court, on analyzing these very
provisions, came to the conclusion that it is the CC Act
provisions that would prevail. The Court is in
respectful concurrence with the said view. As
rightly noted by the Bombay High Court both Sections
42 of the A&C Act and Section 21 of the CC Act
appeared to be similar provisions inasmuch as they
begin with a non-obstante clause, precluding the
applicability of any other law for the time being in
force. The following observations of the Bombay High
Court in this regards are relevant, which reads as
under:
W.P.(C) No.18217 of 2024 Page 29 of 36
"60. G.P. Singh, in his cerebral
commentary, Principles of Statutory
Interpretation (G.P. Singh, Interpretation of
Statutes, (reprint, 14 edn., Lexis Nexis,
2018) 403), has explained that "the
expression 'notwithstanding anything in
any other law' occurring in a section of an
Act cannot be construed to take away the
effect of any provision of the Act in which
that section appears. In other words, 'any
other law' will refer to any law other than
the Act in which that section occurs." In
contrast, the expression 'notwithstanding
anything contained in this Act' may be
construed to take away the effect of any
provision of the Act in which the section
occurs but it cannot take away the effect
of any other law.
61. Indeed, a special enactment or Rule
cannot be held to be overridden by a
later general enactment or simply because
the latter opens up with a non obstante
clause. There should be a clear
inconsistency between the two before
giving an overriding effect to the non
obstante clause.
62. The learned author G.P. Singh has
also remarked that sometimes one finds
two or more enactments operating in the
same field and each containing a non
obstante clause. Each clause, in fact,
declares that its provisions will have effect
'notwithstanding anything inconsistent
therewith contained in any other law for
the time being in force'. The conflict in such
cases is resolved on consideration of
purpose and policy underlying the
enactments and the language used in
them. Another test applied is that the later
enactment normally prevails over the
earlier one. It is also relevant to consider
as to whether either of the two enactments
can be described a special one; in that
case the special one may prevail over the
more general one notwithstanding that the
general one is later in time.
63. In fact, the Arbitration Act and the
Commercial Courts Act, both central
enactments, have employed this 'non-
obstante clause' at more than one place.
W.P.(C) No.18217 of 2024 Page 30 of 36
Precisely for this reason, Kandla Export
Corporation has harmoniously resolved
this imbroglio: that the Arbitration Act
prevails when it concerns the parties'
substantive rights, and the Commercial
Courts Act does when it concerns the
parties' procedural rights."
49. The Bombay High Court then undertook an
analysis of the un-amended provisions of the CC Act
and noted that there is a two-tier Court at the district
level. One is the Commercial Court of original
jurisdiction and another at the District Judge level of
the Commercial Appellate Court. The approach in
Kandla Exports (supra) about the CC Act being
procedural in nature and therefore having
retrospective effect, found support in the decision in
New India Assurance Company Limited v. Shanti
Misra (1975) 2 SCC 840, where a three-Judge Bench
held that once there was a change not in the
substantive law but in the procedural law, it would
operate retrospectively and 'the person has to go to the
new forum even if his cause of action or right of action
accrued prior to the change of forum'. The relevant
passage of the decision of the Bombay High Court in
Gaurang Mangesh Suctancar v. Sonia Gaurang
Suctancar, reads as under:
"92. Evidently, the Commercial Courts Act
is a later enactment, but it does not work
at cross purpose with the Arbitration Act.
In fact, both aim at speedy adjudication.
The Commercial Courts Act covers all the
commercial disputes, whereas the
Arbitration Act covers only those disputes
that involve arbitration. As Kandla Export
Corporation has held, both the enactments
call for a harmonious interpretation. If at
all there is any conflict, as to the
substantive provisions, the Arbitration Act
prevails; but it has left the procedural
niceties to the Commercial Courts Act."
50. The Court finds merit in the contention on
behalf of the Opposite Parties that the A&C Act must
yield to the CC Act and not vice versa given that the
objective of both enactments is the speedy disposal of
the cases and the CC Act was a later enactment. There
is no apparent conflict between the A&C Act and the
CC Act for being resolved. The objective of both is the
speedy resolution of the disputes. As far as challenge
to the vires of Section 10 of the CC Act is concerned,
W.P.(C) No.18217 of 2024 Page 31 of 36
indeed no ground has been made out before this Court
to show how Section 10 of the CC Act is ultra vires the
legislative powers of the Parliament or how it is
'manifestly arbitrary'. The identification of
commercial disputes as distinct from ordinary
civil disputes is based on an intelligible
differentia and subjecting them to a special
expedited procedure can neither be considered to
be arbitrary nor ultra vires the A&C Act. That
prayer, therefore, has to be rejected.
51. Incidentally, there is no challenge to either
Section 15 or 21 of the CC Act. If indeed commercial
cases involving arbitral disputes have
necessarily to be transferred under Section 10(3)
read with Section 15(2) of the CC Act, then as a
natural corollary the Commercial Court alone
will have to decide those disputes and not of the
Court in terms of the A&C Act. In passing the
impugned orders transferring the cases, the D&SJ has
not committed any illegality nor has the Senior Civil
Judge, Commercial Court, Bhubaneswar committed
any illegality in accepting the cases on transfer and
proceeding with them in accordance with law."
(Emphasis supplied)
17. The Judgment of this court in M.G. Mohanty
(supra) being challenged before the Supreme Court, the same
was upheld in Jaycee Housing Pvt. Ltd. (supra). Paragraphs
6, 10 & 11 of the said judgment, being relevant, are
reproduced below:
"6. The question of law arising for consideration
in the present appeal is, whether in exercise of
powers under Section 3 of the Commercial Courts
Act, 2015, the State Government can confer
jurisdiction to hear applications under Sections
9, 14 and 34 of the Arbitration and Conciliation
Act, 1996, upon Commercial Courts which are
subordinate to the rank of the Principal Civil
Judge in the District, contrary to the provisions
of Section 2(1)(e) of the Arbitration Act?
W.P.(C) No.18217 of 2024 Page 32 of 36
10. Thus, the Objects and Reasons of Commercial
Courts Act, 2015 is to provide for speedy disposal of
the commercial disputes which includes the arbitration
proceedings. To achieve the said Objects, the
legislature in its wisdom has specifically conferred the
jurisdiction in respect of arbitration matters as per
Section 10 of the Act, 2015. At this stage, it is
required to be noted that the Act, 2015 is the Act
later in time and therefore when the Act, 2015
has been enacted, more particularly Sections 3 &
10, there was already a provision contained in
Section 2(1)(e) of the Act, 1996. As per settled
position of law, it is to be presumed that while
enacting the subsequent law, the legislature is
conscious of the provisions of the Act prior in
time and therefore the later Act shall prevail. It is
also required to be noted that even as per Section 15 of
the Act, 2015, all suits and applications including
applications under the Act, 1996, relating to a
commercial dispute of specified value shall have to be
transferred to the Commercial Court. Even as per
Section 21 of the Act, 2015, Act, 2015 shall have
overriding effect. It provides that save as
otherwise provided, the provisions of this Act
shall have effect, notwithstanding anything
inconsistent therewith contained in any other
law for the time being in force.
11. Therefore, considering the afore stated provisions
of the Act, 2015 and the Objects and Reasons for
which the Act, 2015 has been enacted and the
Commercial Courts, Commercial Division and
Commercial Appellate Division in the High Courts are
established for speedy disposal of the commercial
disputes including the arbitration disputes, Sections 3
& 10 of the Act, 2015 shall prevail and all
applications or appeals arising out of arbitration
under the provisions of Act, 1996, other than
international commercial arbitration, shall be
filed in and heard and disposed of by the
Commercial Courts, exercising the territorial
jurisdiction over such arbitration where such
commercial courts have been constituted. If the
submission on behalf of the appellants that all
applications/appeals arising out of arbitration under
the provisions of Act, 1996, other than the
international commercial arbitration, shall lie before
the principal civil Court of a district, in that case, not
only the Objects and Reasons of enactment of Act,
2015 and establishment of commercial courts shall be
W.P.(C) No.18217 of 2024 Page 33 of 36
frustrated, even Sections 3, 10 & 15 shall become
otiose and nugatory. If the submission on behalf of
the appellants is accepted, in that case, though
with respect to other commercial disputes, the
applications or appeals shall lie before the
commercial courts established and constituted
under Section 3 of Act, 2015, with respect to
arbitration proceedings, the applications or
appeals shall lie before the principal civil Court
of a district. There cannot be two fora with
respect to different commercial disputes.
Under the circumstances, notification issued by
the State of Odisha issued in consultation with the
High Court of Orissa to confer jurisdiction upon the
court of learned Civil Judge (Senior Division)
designated as Commercial Court to decide the
applications or appeals arising out of arbitration under
the provisions of Act, 1996 cannot be said to be illegal
and bad in law. On the contrary, the same can be said
to be absolutely in consonance with Sections 3 & 10 of
Act, 2015. We are in complete agreement with the view
taken by the High Court holding so."
(Emphasis supplied)
18. Law is well settled that the Court under section 9
of the Act, 1996 is only to formulate interim measure so as to
protect the right under adjudication before the Arbitral
Tribunal from being frustrated. In view of the provisions
enshrined under section 10(3) read with the definition of
"Commercial Dispute" and "Specified Value", as defined under
section 2(1)(c) & (i) of the CC Act, 2015 respectively, in
addition to the settled position of law, as detailed above, this
Court is of the view that only Suits and Applications, which
require to give a declaration regarding the valuation of
Suit/Application, which will be further subjected to valuation,
W.P.(C) No.18217 of 2024 Page 34 of 36
if so required, to be determined in terms of section 12 of the
CC Act, 2015, will be the decisive factor to approach the fora
under the CC Act, 2015. This Court is of further view that, in
view of definition of "Specified Value" under section 2(1)(i) of
the CC Act, 2015, the same is not applicable to a section 9
application for determination of the jurisdiction of a
Commercial Court to consider such application and the
Commercial Courts, where such Courts have been established
in the state, are only competent to hear and decide the
section 9 application filed under the Act, 1996.
19. This Court is of further view that section 15 of the
CC Act, 2015 regarding transfer of suits and applications
being only applicable to pending cases, the District Judge,
Cuttack ought to have returned the section 9 application to
the Petitioner for its presentation before the Court of the
Senior Civil Judge (Commercial Court), Cuttack. However,
during hearing of the said application, realizing the fact that
the said Court lacks jurisdiction to hear the said application,
after assessing the cost of such application to be more than
rupees five lakhs, as is permissible under section 12 of the CC
Act, 2015 (though it was not so required in a section 9
W.P.(C) No.18217 of 2024 Page 35 of 36
application), it was rightly ordered to transfer the matter to
the Commercial Court.
20. In view of the detailed discussions made in the
forgoing paragraphs, this Court is also of the view that the
plea of the Petitioner regarding lack of jurisdiction of the
Commercial Court to adjudicate an application under section
9 of the Act, 1996, in absence of any valuation, is
misconceived. Both the points emerged, detailed above, are
answered accordingly.
21. There being no infirmity in the impugned order
passed in ARBP No.02 of 2024, the Writ Petition stands
dismissed. No order as to cost.
...................................
S.K. MISHRA, J.
Orissa High Court, Cuttack The 12th August, 2024 /Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 12-Aug-2024 17:43:22 W.P.(C) No.18217 of 2024 Page 36 of 36