Point of law: Section 2(1)(c) which forms the fulcrum of the issue in the lis defines what is commercial dispute.

ORDER :

The petitioner is before this Court seeking a writ in the nature of prohibition restraining the LXXXV Additional City Civil and Sessions Judge, Commercial Court, Bengaluru from proceeding further in the case bearing Commercial Miscellaneous Appeal No.1 of 2023 filed by the respondent.

2. Heard Sri A.V. Nishanth, learned counsel appearing for the petitioner and Sri K.G. Raghavan, learned senior counsel appearing for the respondent.

3. Facts in brief germane are as follows:

The respondent/Elior India Food Services LLP (hereinafter referred to as ‘the firm’ for short) employs the petitioner under an employment agreement on 26-10-2016. The firm later designates the petitioner as partner and minor partner with a particular share in the firm. The firm owing to certain omissions and commissions on the part of the petitioner initiates inquiry by issuance of a charge sheet on 10-05-2022. Calling upon the said proceedings, the petitioner files a Commercial Arbitration Application in Com.AA.No.88 of 2021 invoking Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’ for short) in furtherance of an arbitration clause in the employment agreement before the Commercial Court on 13-05-2021.

4. During the pendency of the proceedings invoked by the petitioner under Section 9, the petitioner was terminated from service by the firm. At that stage, on 08-06-2021, the petitioner invokes arbitration under Section 21 of the Act and issues a notice to the firm. During the pendency of further proceedings under Section 21 of the Act, the application under Section 9 of the Act filed before the concerned Court comes to be dismissed. The petitioner then files a commercial appeal before this Court in Com.A.P.No.161 of 2021 which also comes to be dismissed by an order dated 22-10-2021 by a Division Bench affirming the order passed by the concerned Court in a case that was filed by the petitioner invoking Section 9 of the Act. The petitioner did not challenge the said order passed by the Division Bench of this Court. Therefore, a three member Arbitral Tribunal comes to be constituted in furtherance of clause 24 of the Arbitration Clause under the Employment Agreement.

5. The first hearing of the Arbitral Tribunal was scheduled to be conducted on 08-12-2021. The parties were represented and the Tribunal directed completion of pleadings. The Arbitral Tribunal on 15-12-2022 answering the claimant’s application under Section 17 of the Act passed an order, against which the firm files a Commercial Miscellaneous Application before the Commercial Court in Commercial M.A.No.1 of 2023 in which the petitioner herein files his objections contending that the Commercial Court has no jurisdiction to entertain the application. The Commercial Court in terms of its order dated 30-01-2023 directs the counsel for the petitioner to furnish a copy of the objections filed to the application under Order 7 Rule 10 of the CPC, to hear the matter on merits as also on jurisdiction and posted it to 01-02-2023. The order which directs that the matter would be heard both on jurisdiction and on merits is what drives the petitioner to this Court in the subject petition.

6. The learned counsel appearing for the petitioner submits that in terms of Section 2(1)(c) of the Commercial Courts Act, 2015 (hereinafter referred to as ‘the 2015 Act’ for short) the Commercial Court would get jurisdiction only if it is a commercial dispute. Commercial dispute is also defined under the 2015 Act. In terms of Section 2(1)(c)(i) thereof the Commercial Court does not get jurisdiction to entertain a challenge to the order passed by the Arbitral Tribunal as it is not a commercial dispute. The learned counsel would contend that since the issue of jurisdiction goes to the root of the matter, the concerned Court ought to have decided the issue of jurisdiction and after