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2018 Supreme(Bom) 1395
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
S.B. SHUKRE, J.
M/s. Kandla Cargo Handlers – Petitioner
Versus
M/s. Container Corporation of India Ltd. & Ors. – Respondents
Writ Petition No.4129 of 2018
Decided On : 01-08-2018
For the Petitioner:Shri. Shyam Dewani, Advocate
For the Respondents:Shri. Anil Mardikar, Senior Advocate
Headnote:
Constitution of India,1950 - Article 227 - Civil Procedure Code,1908 - Section 24 - Arbitration and Conciliation Act, 1996 - Section 34 - Transferring application - Court of original jurisdiction - Petition challenges order passed below application filed Section of Code Civil Procedure for transferring application filed Section of Arbitration and Conciliation Act in short Arbitration Act and proceedings initiated Section Arbitration Act for execution of arbitral award to one and same Court - This order has been passed by Principal District Judge exported granting stay to execution proceedings till next date - Next date was on which petitioner filed an application for vacating stay as proceedings initiated for execution of what was basically money decree were stayed by Principal District Judge without imposing any condition of depositing of any amount by respondents - However this application was also rejected by Principal District Judge - Aggrieved by these orders that petitioner is now before this Court in present petition – Held, Case when dispute is partly commercial and partly noncommercial in terms of this definition - In such casein my considered opinion it would be doubtful if it could only be tried by commercial Court rather it would not rule out possibility dispute being capable of being tried even by Court of Principal District Judge - But this would of course would depend on facts of each case - This would make it necessary for us to consider nature of dispute involved in instant arbitration award - It is seen from arbitration award that basic contract which gave rise to arbitral dispute between parties was of performing tasks of handling transporting and packaging as an agent of respondents - This contract was not of carriage of goods placatory as contemplated Section Commercial Courts - Basically contract was for tasks to be performed by petitioner as an agent of respondents which arose from out of handling and packaging works performed for purpose of transporting and it was not fundamentally for transport - Such being nature of contract one has to say that at least part of contract which was its main part was out of purview Section Commercial Courts which defines commercial dispute - It would then follow that Section application filed by respondents not being strictly based upon commercial dispute as contemplated Commercial Courts would also be friable by Court of Principal District Judge Nagpur – Therefore court of view that agreement between parties as evidenced in joint purses requires consideration by this Court in exercise of its extraordinary jurisdiction Article Constitution of India - This purses shows willingness parties to go before Court of Principal District Judge – Court have already expressed my opinion on nature of dispute - So cumulative effect of agreement of parties and my opinion would be that court must express my inclination to accept joint Purses filed by parties and it is so accepted – Order accordingly
1. Heard. Rule. Rule made returnable forthwith.
2. Heard finally by consent.
3. This petition challenges the order dated 27.6.2018 passed below application filed under Section 24 of the Code of Civil Procedure for transferring the application filed under Section 34 of the Arbitration and Conciliation Act, 1996 (in short, “Arbitration Act”) and proceedings initiated under Section 36 of the Arbitration Act for execution of the arbitral award to one and the same Court. This order has been passed by the learned Principal District Judge exparte granting stay to the execution proceedings till next date.
4. The next date was of 3rd July, 2018 on which the petitioner filed an application for vacating the stay as the proceedings intiated for execution of what was basically a money decree were stayed by the learned Principal District Judge without imposing any condition of depositing of any amount by respondents. However, this application was also rejected by the learned Principal District Judge. Aggrieved by these orders that the petitioner is now before this Court in the present petition.
5. After hearing Shri Shyam Dewani, learned counsel for the petitioner and Shri Anil Mardikar, learned Senior Counsel for the respondents what has been found is that the issue involved in this petition can also be resolved by considering the Pursis filed by both the sides being Stamp No.9309/2018 dated 26.7.2018 and also the nature of dispute involved in the proceedings pending before the Courts below.
6. By the Pursis dated 26.7.2018, the rival parties have stated that they would have no objection if both the matters being Special Darkhast No.1262/2015 and M.C.A. No.593/2015 are transferred to the Court of Principal District Judge, Nagpur for a decision on merits of the case. It is also stated in the Pursis that the rival parties would not raise any objection based on the provisions of the Arbitration Act and the Commercial Courts, Commercial Division and commercial Appellate Division of High Courts Ordinance, 2015 (in short, “Commercial Courts, 2015”)
7. While there can be no dispute about the fact that the execution proceedings initiated under Section 36 of the Arbitration Act can be instituted before any Court of the District Judge including that of the Principal District Judge, the position is quite different when it comes to filing of an application under Section 34 of the Arbitration Act. In terms of Section 2(1)(e) of the Arbitration Act, such an application has necessarily to be filed before the principal Civil Court of original jurisdiction which has been held to be the Court of Principal District Judge. However, such an application, by virtue of Section 10(3) of the Commercial Courts, 2015, on and from the date on which this Act came into being, would now lie before the Commercial Court. But, it has to be borne in mind that such application would be maintainable before the Commercial Court constituted under the Commercial Courts Act only if the dispute in respect of which arbitral award has been passed is strictly a commercial dispute as defined under Section 2(1)(c) of the Arbitration Act. There can also be a case when the dispute is partly a commercial and partly a noncommercial in terms of this definition. In such a case, in my considered opinion it would be doubtful if it could only be tried by a commercial Court, rather, it would not rule out the possibility of the dispute being capable of being tried even by the Court of Principal District Judge. But, this would of course would depend on facts of each case. This would make it necessary for us to consider the nature of the dispute involved in the instant arbitration award.
8. It is seen from the arbitration award that the basic contract which gave rise to arbitrable dispute between the parties was of performing tasks of handling, transporting and packaging as an agent of the respondents. This contract was not of carriage of goods simplicitor as contemplated under Section 2(c)(v) of
