TaxTMI 
TaxTMI 
TaxTMI 
2019 (11) TMI 1722
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....ncipal Senior Civil Judge, Dahod. 3. The facts giving rise to this application may be summarized as under: 3.1. The applicant herein preferred an application under Section 9 of the Act 1996 in the Court of the District Judge at Dahod, which came to be registered as the Civil Misc. Application No. 45 of 2019. In the said application preferred by the applicant herein, the applicant has prayed for the following reliefs: 22(A) That the opponents their representatives, agents, employees, assignees and every person claiming for, through and on behalf of them till the constitution of the Arbitral Tribunal may kindly be prohibited/restrained from disturbing, dispossessing or causing any disturbance/obstruction/obstacle in exclusive actual physical possession of the Possessed Leased Premises being legitimately held possessed by the applicant firm as a Lessee herein and accordingly the opponents, its agents, employees, attorneys, assignees, transferees and every person claiming for, through and on behalf of them may kindly be restrained from doing, causing or including in any acts, things or deeds amounting to disturbance, obstruction, invasion in the exclusive possessi....
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.... their representatives, agents, employees, assignees and every person claiming for, through and on behalf of them till the constitution of the Arbitral Tribunal may kindly be prohibited/restrained from doing every act, thing or deed which can result or likely to result in disturbance, damage or adverse effect or likely to result in restriction, deprivation and or denial or constraint against the applicant in respect of its entire leasehold rights subsisting in the Possessed Leased Premises in any manner whatsoever; (G) That opponents and or every person claiming for and through on behalf of them may kindly be positively ordered to cease, desist and stop indulging in the prohibitory preventive actions having resulted in obstruction, disturbance, obstacle in the exclusive possession of the part of the possessed lease premises i.e. Part I as mentioned in the main petition and thereby the necessary orders and or mandatory directions may kindly be issued and passed to ensure restitution/continuation of the lawful and exclusive possession in respect of the part of the possession leased premises i.e. Part I as mentioned in the main petition. (H) any....
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....plicant is a commercial dispute and for that dispute in the Dahod District Principal Senior Civil Judge has been vested jurisdiction by virtue of above said notification. (5) Ld. Advocate Mr. Sumant for the applicant has argued that the notification has no effect when the Arbitration Act speaks about the definition of the Court and it is prescribed that the Court means Principal Civil Court and according to the provision of Gujarat Civil Courts Act, District Court is a Principal Civil Court. But this Court is of the view that the above mentioned notification of Legal Department issued in consultation with the Hon'ble Gujarat High Court is in existence and the said notification is not quashed and set aside and all the Principal Senior Civil Judges in the State of Gujarat are vested with the powers to deal with dispute in the nature of commercial disputes as a commercial Court. Therefore, the said notification has binding effect and hence following order is passed. ORDER 1. This Civil Misc. Application is hereby returned to the applicant as this Court has no jurisdiction to deal with and applicant is directed to present ....
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.... original jurisdiction within the local limits of its jurisdiction. Mr. Mehta thereafter invited the attention of this Court to Sections 2(b), 3 and 10 of the Act, 2015. Mr. Mehta also invited the attention of this Court to a Notification dated 15th April, 2019 issued by the Legal Department of the Government of Gujarat specifying the Courts in the area of local limits of their jurisdiction for dealing with the disputes of Commercial nature having valuation of not less than rupees three lakh. 7. Mr. Mehta submitted that Section 2(e)(i) of the Act 1996 expressly excludes any Civil Court of a grade inferior to such Principal Civil Court, or any Court of small Causes. According to Mr. Mehta, in view of Section 11 of the Act 2015, which bars a Commercial Court from deciding any suit, application or proceedings relating to any commercial dispute in respect of which the jurisdiction of the Civil Court is either expressly or impliedly barred under any other law for the time being in force; read with the provisions of Section 9 of the Act 1996 any Commercial Court which is a Civil Court of a grade inferior to such Principal Civil Court, or any Court of Small Causes, would be barred from e....
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....Section 3 read with sub-section (1A) of the said section 3 of the Commercial Courts Act, 2015 (4 of 2015), and in supersession of the Government Notification, Legal Department No. GK/52/2017/GOI44/D. Dated the 16th August, 2017, the Government of Gujarat, after consultation with the High Court of Gujarat, hereby specifies the following Courts shown in Column 2 of Schedule appended here to in the area of local limits of their jurisdiction specified in column 3 of the said Schedule for dealing with disputes of Commercial nature having valuation of not less than rupees three lakhs rupees, as follows: By order and in the name of the Governor of Gujarat. [H.H. Varma] Deputy Secretary to Government. ***** ***** ***** ***** ***** NOTIFICATION Legal Department Sachivalaya, Gandhinagar. Dated the, 15th April, 2019. Commercial Courts, Act, 2015. No. GK/10/2019/SPC/102017/GOI44/D: In exercise of the powers conferred by sub-section 3A read with sub-section (1) of the section 13 of the Commercial C....
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.... 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 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 arbi....
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....ch 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]. &nb....
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....red under any other law for the time being in force. Section 11 reads thus: 11. Bar of jurisdiction of Commercial Courts and Commercial Divisions.-Notwithstanding anything contained in this Act, a Commercial Court or a Commercial Division shall not entertain or decide any suit, application or proceedings relating to any commercial dispute in respect of which the jurisdiction of the civil court is either expressly or impliedly barred under any other law for the time being in force. 20. Section 21 of the Commercial Courts Act, 2015 reads thus: 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. [21A. Power of Central Government to make rules.-(1) The Central Government may, by notification, make rules for carrying out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may pro....
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.... of this Court in paragraph 15 of the judgment. Paragraph 15 reads thus: 15. Mr. Anshin Desai, Senior Advocate, learned counsel with Mr. Aditya Pandya, learned advocate for the petitioner, invited the attention of the court to the facts of the case as noted hereinabove and narrated in detail in the memorandum of petition. It was submitted that the impugned order passed by the learned Principal District Judge is without jurisdiction inasmuch as the learned Principal District Judge did not have the power to entertain such application under section 37 of the Arbitration Act. The attention of the court was invited to the provisions of section 37 of the Arbitration Act, to submit that an appeal lies against the orders referred to therein to the court authorised by law to hear appeals from original decrees of the court passing the order. Reference was made to the provisions of section 10 of the Commercial Courts Act, 2015 which provides the jurisdiction in respect of arbitration matters and lays down the courts which would have jurisdiction to decide applications and appeals in the matters referred to therein. Reference was made to sub-section (3) section of 10 of the....
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.... case is preferred under clause (b) of sub-section (2) of section 37, which provides for an appeal to a court from an order of an Arbitral Tribunal granting or refusing to grant an interim measure under section 17 of that Act. It was submitted that the expression employed in sub-section (2) of section 37 is "court". Reference was made to clause (e) of section 2 of the Arbitration Act, which defines "court" to mean, 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 question 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. It was submitted that therefore clause (e) of section 2 of the Arbitration Act lays down that "court" shall mean the principal Civil Court of original jurisdiction in a district, and specifically excludes any civil court of a grade inferior to such principal Civil Court or any court of Small ....
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.... or decide any suit, application or proceedings relating to any commercial dispute in respect of which the jurisdiction of the civil court is either expressly or impliedly barred under any other law for the time being in force. It was pointed out that section 2(e) of the Arbitration Act clearly excludes any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes from the meaning of the expression "court", to submit that, therefore, in view of section 11 of the Commercial Courts Act, a Commercial Court other than the Principal Civil Court of original jurisdiction in the district, would have no jurisdiction to decide an appeal under section 37 of the Act. It was submitted that, therefore, the appeal was rightly transferred to the District Court which is otherwise the concerned appellate court. 23. This Court ultimately held as under: 20.1 In the present case, the appeal under section 37 of the Arbitration Act has been preferred by the respondents before the Commercial Court at Vadodara, against an order granting interim measures under section 17 of the Arbitration Act. Therefore, the appeal preferred by the respondents was unde....
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....ate 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 no Commercial Court shall be constituted for the territory over which the High Court has ordinary original civil jurisdiction. (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 shall, 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, from amongst the cadre of Higher Judicial Service in the State." "10. Jurisdiction in respect of arbitration matters.- W....
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....ge and 2nd Senior Civil Judges in terms of the above notification issued by the State Government. Reference is also made to section 21 of the Commercial Courts Act to submit that the provisions of the Commercial Court Act would have an overriding effect over the provisions of the Arbitration Act and, accordingly, would override the provisions of section 37(2)(b) of the Arbitration Act. 20.5 In this regard it may be noted that section 11 of the Commercial Courts Act provides that a Commercial Court or a Commercial Division shall not entertain or decide any suit, application or proceedings relating to any commercial dispute in respect of which the jurisdiction of the civil court is either expressly or impliedly barred under any law for the time being in force. Clause (i) of section 2(e) of the Arbitration Act which defines the expression 'court' not only vests jurisdiction in the principal Civil Court of original jurisdiction in a district, including 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 su....
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....f a grade inferior to such principal Civil Court, or any Court of Small Causes. A comparison of the two definitions makes it clear that in the new Act not only there is reference to "Principal Civil Court of original jurisdiction in a district" but also there is an exclusionary clause which excludes any civil Court of a grade inferior to such Principal Civil Court. Whatever doubt could have been there, has been dispelled by a specific clause to the effect "it does not include any Civil Court of a grade inferior to Principal Civil Court." 20.8 The Supreme Court in Kandla Export Corporation and Anr. v. OCI Corporation AIR 2018 SC (Supp) 789 (supra), has held thus: "27. The matter can be looked at from a slightly different angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison d'etre for the enactment of the Commercial Courts A....
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....r Civil Judge and 2nd Senior Civil Judges as Commercial Courts for Surat District for deciding disputes of commercial nature having valuation of not less than rupees three lakhs, would have no applicability to the facts of the present case as section 2(e) of the Arbitration Act ousts their jurisdiction to decide appeals under the Arbitration Act. The first question is, therefore, required to be decided in favour of the respondents, namely that the learned Principal District Judge had the jurisdiction to decide the appeal under section 37(2)(b) of the Arbitration Act. 24. Thus, the dictum of law as laid by this Court in paragraph 20.6 as referred to above is very clear. In view of the said dictum, the impugned order in the present case is not sustainable in law. 25. At this stage we may also refer to and rely upon a Full Bench decision of the Bombay High Court in the case of M/s. Fountain Head Developers and etc. etc. v. Mrs. Maria Arcangela Sequeira deceased by L.R.'s and Ors., etc. reported in AIR 2007 Bombay 149, wherein, the Full Bench observed as under: 7. The definition of "Court" under Section 2(e) could be divided in the following manner: (i) The pr....
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.... arbitral process. This object will have to be borne in mind while interpreting the term "Court" under Section 2(e) of the Act of 1996. A reference to the statement of objects and reasons in the process of interpretation of a Statute is held permissible by a catena of decisions of the Supreme Court. Even the preamble of a Statute is equally an important part and can be pressed into service to aid the construction thereof. 9. It is against tin's backdrop, we now proceed to consider the definition of "Court" in the Act of 1996. The intendment of the Parliament is clearly reflected in the language employed in defining the term "Court" under Section 2(e) of the Act of 1996. The Parliament intended to have only one Court as the forum for arbitral proceedings, that is, the "principal Court of original jurisdiction" in a district. In this group of matters we are not concerned with inclusive definition as occurring in Section 2 (e) of the Act of 1996 relating to the jurisdiction of the High Court also being the Court of ordinary original civil jurisdiction. The principal Court of original jurisdiction in a district does not include any civil Court to a grade inferio....
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....ate of Andhra Pradesh, AIR 1989 Supreme Court 335, while interpreting the definition of "Tobacco", wherein all the aforesaid three words/expressions, as occurring in the definition of "Court" are there, has stated the word "means" is a term of restriction, while the word "includes" is a term of enlargement. When both these words are used together to define a thing, the intendment of the Parliament is to supply restricted meaning to the terms. The expression "does not include any civil Courts of a grade inferior to such principal civil Court or any Court of small causes" occurring in Section 2(e) further restricts the meaning of the term "Court" defined therein. It clearly excludes the Courts inferior to the principal Court of original jurisdiction. The Allahabad High Court in M/s. I.T.I. Ltd. AIR 1998 All 313 (supra) had an occasion to deal with very same section and while so doing has taken a similar view. 11. We would also like to consider two more expression/words in the definition of "Court", that is, "grade inferior" and "principal". According to Black's Law Dictionary "inferior" means "one who, in relation to another, has less power and is below him; o....
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.... doubt that Section 21 of the Act 2015 starts with anon obstante clause. As regard the non obstante clause, this Court deems it fit to consider few decisions: 28. In State of West Bengal v. Union of India, AIR 1963 SC 1241, it is observed as under: "The Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs." 29. In Union of India v. Maj I.C. Lala, AIR 1973 SC 2204, the Supreme Court held that the non obstante clause does not mean that the whole of the said provision of law has to be made applicable or the whole of the other law has to be made inapplicable. It is the duty of the Court to avoid the conflict and construe the provisions to that they are harmonious. 30. In Union of India v. G.M. Kokil, AIR 1984 SC 1022, the Supreme Court, at Paragraph 10, held as follows: "It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provision over some contrary pr....
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....ary to determine the purport and object for which the same was enacted.... 36. The non obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy.... 37. A non obstante clause must be given effect to, to the extent the Parliament intended and not beyond the same." 34. The Supreme Court, in the case of Central Bank of India v. State of Kerala (2009) 4 SCC 94 : (2010 AIR SCW 2436), held as follows: "103. Anon obstante clause is generally incorporated in a statute to give overriding effect to a particular section or the statute as a whole. While interpreting non obstante clause, the Court is required to find out the extent to which the legislature intended to do so and the context in which the non obstante clause is used. This rule of interpretation has been applied in several decisions. 35. In State Bank of West Bengal v. Union of India [ (1964) 1 SCR 371] : AIR 1963 SC 1241, it was observed that: "68... the Court must ascertain the intention of the legislature by directing its attention not merely to the clauses t....
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.... case. The Court while interpreting the non obstante clause contained in Section 21A of Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 held: "It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369], Patanjali Sastri, J. observed: "The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously;"" 39. A non obstante clause is generally appended to a section with a view to give the enacting part of the section, in case of conflict, an overriding effect over the provision in the same or other Act mentioned in the non obstante clause. It is equivalent to saying that inspite of the provisions or Act mentioned in the non obstante clause, the provision following it will have ....
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....ict. It must certainly be taken to have been conscious of the object to be achieved while framing the definition of the term "Court". Besides, it intended to minimize the supervisory role of the Courts in the arbitral process. It also intended to add the greatest credibility to this process. We find support for the view in the judgments of the Supreme Court. The Supreme Court while dealing with the provisions of Section 11 of the Act of 1996, in S.B.P. and Company (AIR 2006 SC 450)(supra) in paragraph 12 of the judgment has observed that "the Court is defined in the Act to be the principal Civil Court of original civil jurisdiction of the district and includes the High Court in exercise of its ordinary original civil jurisdiction. The principal Civil Court of original civil jurisdiction is normally the District Court. The High Courts in India exercising ordinary original civil jurisdiction are not too many. So in most of the States the concerned Court would be the District Court". Similarly, the Supreme Court in Garhwal Mandal v. M/s. Krishna Travel Agency in Special Leave Petition (Civil) No. 18344 of 2004 decided on 24-1-2007 (Reported in(2008) 13 Scale 273), while dealing with t....