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2022 (10) TMI 872
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....of the Commercial Courts Act, 2015 (hereinafter referred to as the Act, 2015), the State Government on the recommendation of and after consultation with the High Court of Orissa has established the Courts of Civil Judge (Senior Division) as Commercial Courts for the purposes of exercising the jurisdiction and powers under the Act, 2015. 2.1 The original writ petitioners - appellants herein initially filed the proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act, 1996) in the Court of learned District Judge. However, on establishment of the Commercial Courts under the aforesaid notification, the said proceedings were transferred to the Commercial Court i.e., the Court of Civil Judge (Senior Division) [designated as Commercial Court]. Therefore, the appellants herein challenged the aforesaid notification and designating the Courts of Civil Judge (Senior Division) as Commercial Courts under the Act, 2015 before the High Court by way of present writ petitions. It was the case on behalf of the appellants - original writ petitioners that constituting and/or designating the Courts of Civil Judge (Senior Division) as ....
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.... under Sections 9, 14, 34 of the Arbitration Act, 1996, is conferred on commercial courts which are subordinate to the Principal Civil Court of original jurisdiction in the district, there is a clear conflict with the provisions of Section 2(1)(e) of the Arbitration Act, 1996. 3.3 It is further submitted by Ms. Babbar, learned counsel appearing on behalf of the appellants that the "Court" under Section 2(1)(e) of the Arbitration Act, 1996 is the superior most court in the district and as such legislature intended to minimize the supervisory role of the courts in the arbitral process. Reliance is placed on the decisions of this Court in the cases of State of Maharashtra and Anr. Vs. Atlanata Ltd.; (2014) 11 SCC 619 and State of West Bengal and Ors. Vs. Associated Contractors; (2015) 1 SCC 32. 3.4 It is further submitted by Ms. Babbar, learned counsel appearing on behalf of the appellants that the Arbitration and Conciliation Act, being a special statute visàvis the Commercial Courts Act, shall prevail over the Commercial Courts Act in the case of any conflict as held by this Court in the cases of Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd.; (2011) 8 SCC 333 and Kandl....
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....igh Court have taken a contrary view. 3.8 Making the above submissions and relying upon the above decisions, it is prayed to declare and hold that the notification issued by the State of Odisha conferring the powers upon the Commercial Court - Court of Civil Judge (Senior Division) to exercise the powers under the Commercial Courts Act in respect of arbitration disputes as illegal, bad in law and consequently to quash and set aside the impugned common judgment and order passed by the High Court. 4. Shri Gaurav Aggarwal, learned counsel and Amicus Curiae has taken us to the object and purpose of enactment of Commercial Courts Act and establishment of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Court. It is submitted that the Commercial Courts Act and the establishment of Commercial Courts are with a view to facilitate early disposal of the high value disputes/commercial disputes. It is submitted that with a view to achieving the object of speedy disposal of the commercial disputes, the legislature has enacted the Commercial Courts Act, 2015. It is submitted that under Section 3 of the Commercial Courts Act, 2015, a commercial Court ....
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....vides forum of filing appeal. 4.3 Making the above submissions it is prayed to dismiss the present appeals and hold that in the present case the notification issued by the State Government conferring powers upon the Commercial Court - Court of Civil Judge (Senior Division) to exercise the powers under the Commercial Courts Act is neither illegal nor bad in law. 5. We have heard Ms. Uttara Babbar, learned counsel appearing for the appellants and Shri Gaurav Aggarwal, learned Amicus Curiae. 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? 7. While considering the aforesaid question of law, relevant provisions of the Arbitration Act, 1996 and the Commercial Courts Act, 2015 are required to be referred to and considered, namely, Section 2(1)(e) of the Arbitrat....
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.... (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]. 10. Jurisdiction in respect of arbitration matters Where the subjectmatter 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 commer....
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....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 subrule (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 inconsisten....
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....rt submitted in January, 2015 suggested a new approach for expediting commercial disputes and therefore proposed a new Bill. The Law Commission made the following recommendations qua arbitration matters involving the commercial disputes: "3.24.4 Second, in the case of domestic arbitrations concerning a commercial dispute of more than Rupees One Crore, applications or appeals may lie either to the High Court or a Civil Court (not being a High Court) depending upon the pecuniary jurisdiction. It is recommended that all applications or appeals arising out of such arbitrations under the A& C Act, that have been filed on the original side of the High Court shall be heard by the Commercial Division of the High Court where such Commercial Division is constituted in the High Court. However, in the absence of a Commercial Division being constituted, the regular Bench of the High Court will hear such applications or appeals arising out of domestic arbitration. If the application or appeal in such domestic arbitration is not within the jurisdiction of the High Court and would ordinarily lie before a Civil Court (not being a High Court) and there is a Commercial Court exercising terri....
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....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 aforestated 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 e....