Rajasthan High Court - Jodhpur
Rajasthan State Mines And Minerals ... vs Ankur Minmine Product Private Limited on 7 March, 2019
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ No. 920/2019 Raj. State Mines And Minerals Ltd., (Project Of State Government), Corporate Office, 4-Meera Marg, Udaipur Through Senior Manager Shri Dinesh Dargar S/o Shri Chandmal, Aged 48 Years, R/o 4-Meera Marg, Udaipur.
----Petitioner Versus Ankur Minmine Product Pvt. Ltd., Registered Office And Factory F-232, Mewar Industrial Area, Mandi, Udaipur.
----Respondent Connected With S.B. Civil Writ No. 939/2019 Rajasthan State Mines And Minerals Limited, (Project Of State Government), Corporate Office, 4-Meera Marg, Udaipur Through Senior Manager Shri Dinesh Dargar S/o Shri Chandmal, Aged 48 Years, R/o 4- Meera Marg, Udaipur.
----Petitioner Versus Ankur Minmine Product Private Limited, Registered Office And Factory F-232, Mewar Industrial Area, Mandi, Udaipur.
----Respondent
For Petitioner(s) : Mr. Pradhuman Singh
Mr. Richin Surana
For Respondent(s) : Mr. Sanjay Nahar
JUSTICE DINESH MEHTA
Order
07/03/2019
Heard learned counsel for the parties on the following question, which was formulated by this Court on 30.01.2019 :-
"Whether a writ petition under Article 227 of the Constitution of India will lie against an interlocutory (2 of 7) [CW-920/2019] order passed by a Commercial Court, particularly in view of the embargo contained in Section 8 of Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 ?"
Both the counsel, more or less, agree that as far as powers of this Court under Article 227 of the Constitution of India are concerned, there is no fetter in entertaining a writ petition against an interlocutory order passed by the Commercial Court, notwithstanding the prohibition contained in Section 8 of the Act.
For the purposes of deciding the question aforesaid, it will not be out of place to reproduce Section 8 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereafter referred to as "the Act of 2015"), which reads thus :-
"8. Bar against revision application or petition against an interlocutory order.- Notwithstanding anything contained in any other law for the time being in force, no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, and any such challenge, subject to the provisions of section 13, shall be raised only in an appeal against the decree of the Commercial Court."
Mr. Sanjay Nahar, learned counsel for the respondent assisting the Court on the above question submits that a writ petition under Article 227 of the Constitution of India is maintainable and to buttress such stand, he relies upon a Division Bench judgment dated 07.05.2018, passed by Gujarat High Court in case of State of Gujarat Vs. Union of India, whereby the said High Court held that the writ petition under Article 227 of the (3 of 7) [CW-920/2019] Constitution of India, against an interlocutory order passed by the Commercial Court is maintainable. It will not be out of place to reproduce the relevant excerpt of the judgment aforesaid, which run as under :-
"9. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid decisions, we are of the opinion that bar contained under Section 8 of the Commercial Courts Act shall not affect the jurisdiction of the High Court under Article 227 of the Constitution of India. If the contention on behalf of the respondents that considering Section 8 of the Commercial Courts Act, even the writ jurisdiction under Article 227 of the Constitution of India is barred, in that case, such a provision would suffer from the vice of unconstitutionality as observed by the Hon'ble Supreme Court in the aforesaid decisions. The power vested in the High Courts to exercise judicial superintendence over the decisions of the courts and Tribunals within their respective jurisdictions is part of the basic structure of the Constitution and no legislature can take away such power of superintendence conferred under Article 227 of the Constitution of India. It is required to be noted that therefore, even the legislature, while enacting Section 8 of the Commercial Courts Act, seems to have wisely not used the word "maintainable" but has used the word "entertained". At this stage, it is also required to be noted that where the statute specifically provided that against the decision of the Tribunal, only an appeal under Article 136 of the Constitution before the Hon'ble Supreme Court would be maintainable, the Hon'ble Supreme Court in the case of L.Chandra Kumar v. Union of India And Others (supra) has specifically observed and held that the powers of the supervisory jurisdiction of the High Court under Article 227of the Constitution against the decision of the Tribunals shall still be available and the aggrieved party can approach (4 of 7) [CW-920/2019] the High Court under Article 227 of the Constitution. Therefore, it is observed and held that Section 8 of the Commercial Courts Act shall not affect the powers of the High Court under Article 227 of the Constitution of India against the order passed by the Commercial Court. However, at the same time, the powers under Article 227 of the Constitution of India must be exercised sparingly and in exceptional cases only, more particularly, looking to the object and purpose of Section 8 of the Commercial Courts Act, i.e. speedy disposal of commercial disputes.
Mr. Nahar further invites attention of this Court towards the Division Bench Judgment dated 02.07.2018, rendered by this Court in case of Shri Balaji Industrial products Vs. Aia Engineering Ltd & Ors. (DB Civil Writ Petition No.4411/2018), wherein, while holding that the writ petition under Article 227 of the Constitution of India is maintainable, the Division Bench observed thus :-
"... ... ... The impugned order to that extent suffers from jurisdictional error entitling this Court to rectify the same in exercise of its power of judicial superintendence under Article 227 of the Constitution of India and eschew manifest injustice to the petitioner-defendant. In view of the conclusion that we have arrived at, the other questions including those relating to delayed filing of 'Statement of Truth', its omission from the Act as originally passed by the Parliament and the effect of its inclusion in the subsequent Ordinance of 2018 with retrospective effect need not be gone into. However, in the overall facts of the case, we deem it appropriate to compensate Respondent No. 1-plaintiff with costs, quantified at Rs. 50,000/-."
(5 of 7) [CW-920/2019] In view of the law laid by Division Benches of Gujarat High Court and this Court and keeping in view the judgment of Hon'ble the Supreme Court in L. Chandra Kumar Vs. Union of India & Ors., (1997) 3 SCC 261, I am of the firm view that the powers conferred by the High Court under Articles 226 and 227 of the Constitution of India are unfettered and cannot be curtailed by any statutory provisions.
Hence, the writ petition under Article 227 of the Constitution of India is maintainable, even against an interlocutory order passed by Commercial Court, irrespective of what has been contained in Section 8 of the Act of 2015; albeit with self imposed restrictions and restraints imposed by the Courts in light of various judicial pronouncements.
Now, I proceed to decide whether such writ petition would lie before a Single Bench or before a Division Bench.
Mr. Sanjay Nahar, learned counsel for the respondents submits that the judgment of this Court in the matter of Shri Balaji Industrial Products (supra), has been passed by a Division Bench, rather a Commercial Appellate Division. He further submits that not only in Rajasthan High Court, even in Gujarat High Court and other High Courts, all such matters arising out of the Commercial Courts are being heard and decided by the Division Benches/or the Commercial Appellate Division, constituted under the Act of 2015.
In order to contend that the writ petition would go before a Division Bench, while navigating the Court through Section 4 and 5 of the Act of 2015, he submits that the writ petition, if held maintainable, the same would lie before Division Bench/ Commercial Appellate Division and not before a Single Bench of this Court.
(6 of 7) [CW-920/2019] However, neither any rule nor any order of the Chief Justice etc. has been placed before me, vide which it can be inferred that the matters like the present one are required to be placed before the Commercial Appellate Division.
A bare reading of Section 4 and 5 of the Act of 2015 reveals that these provisions only contemplate constitution of Commercial Division of High Court and Commercial Appellate Division of the High Court. As far as Section 5 which deals with the constitution and jurisdiction of the Commercial Appellate Division is concerned, the same unequivocally provides that the Commercial Appellate Division shall exercise the jurisdiction and powers conferred on it by the Act.
It is pertinent that by virtue of Section 13 of the Act of 2015, Appellate Division of a High Court comes into picture only in case(s) of an appeal against the decision of the Commercial Court or Commercial Division of High Court. It is also noteworthy that such appeal is only confined qua the orders, against which an appeal has been provided under Order XLIII Rule 1 of the Code. It will be profitable to reproduce Section 13 of the Act of 2015, which reads as under :-
"13. Appeals from decrees of Commercial Courts and Commercial Divisions.- (1) Any person aggrieved by the decision of the Commercial Court or 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 judgment or order, as the case may be:
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).
(7 of 7) [CW-920/2019] (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 Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act."
A close and conjoint reading of Section 5 and 13 of the Act of 2015 leaves no room for ambiguity that the matter would go before Commercial Appellate Division only in those cases, where the Act of 2015 provides a remedy or an appeal to be heard by Commercial Appellate Division. Since, the Act of 2015 does not provide any appeal against interlocutory order passed by the Commercial Court (rather an impediment has been created even qua maintainability of a revision or appeal against the interlocutory order), this Court is of the firm view that writ petition under Article 226/227 of the Constitution would not go before the Commercial Appellate Division of the High Court and is required to be heard by a Court authorized to hear writ petition under Article 227 of the Constitution of India, albeit as per the roster.
List both the matters on 14.03.2019.
In the meanwhile, Registrar (Judicial) to seek clarification/appropriate orders from Hon'ble the Chief Justice as to whether writ petitions under Article 227 of the Constitution of India, emanating from Commercial Courts are also required to be laid before the Bench hearing "SB Civil Writ Petitions under Article 227 of the Constitution of India from Civil Court's order."
(DINESH MEHTA),J 105 & 106-ArunV/-
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