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2024 Supreme(Pat) 936

IN THE HIGH COURT OF JUDICATURE AT PATNA
ARUN KUMAR JHA, J.
Civil Misc. Juri. Nos.752 with 755 of 2023 and 305 of 2024
(29.11.2024)
Bihar State Power (Holding)
Company Ltd. (in 752, 755)
M/s Hindustan Construction
Company Ltd. (in 305) ... Petitioners
vs.
Gammon India Ltd. & Ors. (in both)
Bihar Rajya Pul Nirman Nigam Ltd.
(in 305) ...Respondents

Advocates:
For the Petitioners: M/s Umesh Prasad Singh, Sr. Adv., Kumar Manish, Vaibhava Veer Shanker, Kumar Saurav, Arun Kumar Prasad, Aishwarya Shankar(in 752, 755); M/s Anurag Saurav, Inderjeet Sinha, Prity Kumari, Sharda Raje Singh, Ankesh Bibhu (in 305).
For the Respondent No.1:M/s Shyam Kishore Sharma, Sr. Advocate Ashok Kumar Sinha, Advocate Nilesh Kumar Nirala(in 752, 755); Md. Nadim Seraj (in 305).

Headnote:

Arbitration & Concilliation Act, 1996 – Section 2(e) & 34 read with Commercial Courts Act, 2015 – Section 3 – Competent Court in arbitration proceeding relating to commercial disputes – District Judge alone would be competent to exercise original jurisdiction in respect of commercial disputes where the value of the suit or dispute exceeds Rs. 1 crore in respect of the entire territorial area of the district – If such matter is below Rs. 1 crore and not less than 3 lacs, the same should be filed before the court of learned Civil Judge (Senior Division), which would hear and dispose of the same. (Paras 50 & 51)

Arbitration & Concilliation Act, 1996 – Section 34 read with Code of Civil Procedure, 1908 – Section 39 – And Commercial Courts Act, 2015 – Section 10 – Execution of award – Transfer of execution case by the District Judge – Section 36 of the 1996 Act specifically provides that in execution of an award, the provisions of the Code of Civil Procedure, 1908 would be applicable – Section 39 of the Code provides for transfer of decree – Thus, the court where decree has been filed for execution can transfer the same to other courts having pecuniary jurisdiction – So far as the A & C Act, 1996 is concerned, undoubtedly the original court is empowered to transfer the decree to any other court in terms of Section 39 of the Code – But the bar created under Sections 3(3) & 10(3) of the C.C. Act would come into play in the light of Notification issued by the State Government – If a petition under Section 34 of the A & C Act, 1996 involving commercial dispute is to be compulsorily filed, heard and disposed of by the Commercial Court, a petition under Section 36 of the A & C Act, 1996 would not have a different fate because allowing the execution for awards under the A & C Act, 1996 to be transferred to other Court would give rise to in congruous situation – It has been held by the DB of the High Court that it is the District Judge alone who being notified as Commercial Court has the jurisdiction to hear all such matters and not the Addl. District Judge – The word 'Court' could not have two different meanings under Sections 34 and 36 of the A & C Act, 1996 unless so differentiated by statute or by any authoritative judicial pronouncement – So, even in execution matters in commercial disputes arising out of arbitrariness, it is the Commercial Court so designated whether the Court of District Judge or the Court of Civil Judge (Senior Division) which alone would retain the jurisdiction over such matters – In this manner the Notification issued by the State Government makes the provision of Section 39 of the C.P.C. is otiose and nugatory – therefore, the learned District Judge committed an error of jurisdiction in transferring the records of Misc. Arbitration Case to ADJ – Impugned order set aside. (Paras 54 & 57)

PASL Wind Solutions Pvt. Ltd. Vs. GE Power Conversion India Pvt. Ltd., (2021) 7 SCC 1; Shivam Housing Pvt. Ltd. Vs. Thakur Mithilesh Kumar Singh, 2015 SCC OnLine Pat 6005; Sundaram Finance Ltd. Vs. Abdul Samad, (2018) 3 SCC 622 – Relied.

Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd., (2011) 8 SCC 333; Kandla Export Corporation Vs. OCI Corporation, (2018) 14 SCC 715; R.S. Raghunath Vs. State of Karnataka, (1992) 1 SCC 335; SBP & Co. Vs. Patel Engineering Ltd., (2005) 8 SCC 618; Uttar Pradesh Vs. Sabir Ali, AIR 1964 SC 1673; State of Jharkhand Vs. Hindustan Construction Company, (2018) 2 SCC 602; State of West Bengal Vs. Associated Contractors, (2015) 1 SCC 32; MSP Infrastructure Ltd. Vs. Madhya Pradesh Road Development Corporation Ltd. (2015) 13 SCC 713; Shri Sudhir Chandra Ghose Vs. Patna Municipal Corporation, 1998 (1) BLJ 3; Jaycee Housing Pvt. Ltd. Vs. Registrar (General) Orissa High court, Cuttak & Ors. (2023) 1 SCC 549 – Referred.

Arun Kumar Jha, J.—In these three cases, the issues are common and interrelated, as such, all have been heard together and are being disposed of by this common judgment. The reliefs sought by the petitioners are as under :

Civil Misc. No. 752 of 2023

2. The instant petition has been filed by the petitioner under Article 227 of the Constitution of India seeking following reliefs:—

“(i) To issue a rule NISI in the nature of writ of certiorari to quash and cancel the order dated 09.06.2023 passed by the Ld. District Judge, Civil Court, Patna, in Miscellaneous (Arbitration) Case No. 04/2018 (M/s Bihar State Power Holding Company Ltd. vs. Gammon India Ltd. & Ors.) by which the Ld. District Judge has been pleased to transfer this case to Ld. Additional District Judge-27, Patna along with Execution Case No. 382/2019, a ‘Court’ having no jurisdiction;

(ii) To issue a writ of mandamus commanding the ‘District Judge’ being the Principal Civil Court in terms of section 2 (e) defining ‘Court’ as per Arbitration & Conciliation Act, 1996 and also having been declared a Commercial Court by notification as contained in memo no. 5080 dated 25.07.2019 by the order of Governor of Bihar in terms of section 3 of the Commercial Court Act 2015 (Act 4 of 2016) to transfer such cases to any other court which are covered u/s 2 (c) being the commercial disputes read with section 10 of the Commercial Court Act, 2015 (Act 4 of 2016);

(iii) To issue order/orders, direction/directions and restore the Miscellaneous (Arbitration) Case No. 04/2018 (Bihar State Power Holding Company Ltd. vs. Gammon India Ltd. & Ors.) to the court of Ld. District Judge presently pending in the Court of Ld. Additional District Judge-27, Patna;

(iv) To issue a writ of prohibition restraining the Additional District Judges from deciding the cases u/s 2 (c) of the Arbitration and Conciliation Act 1996 read with section 10 (2) & (3) of the Commercial Court Act 2015;

(v) To issue an interim order granting stay of the further proceedings in the aforementioned case and/or to stay the operation of the impugned order during pendency of the present application;

(vi) To issue other appropriate writ or writs, order or orders, direction or directions as this Hon’ble Court may deem fit and proper in the facts and circumstances of this case”.

Civil Misc. No. 755 of 2023

3. The instant petition has been filed by the petitioner under Article 227 of the Constitution of India seeking following reliefs :—

“(i) To issue a rule NISI in the nature of writ of certiorari to quash and cancel the order dated 09.06.2023 passed by the Ld. District Judge, Civil Court, Patna, in Execution Case No. 382/2019 (M/s Gammon Engineering & Construction Pvt. Ltd. vs. M/s Bihar State Power Holding Company Ltd.) by which the Ld. District Judge has been pleased to transfer this case to Ld. Additional District Judge-27, Patna along with Miscellaneous (Arbitration) Case No. 04/2018 , a ‘Court’ having no jurisdiction along;

(ii) To issue a writ of mandamus commanding the ‘District Judge’ being the Principal Civil Court in terms of Section 2 (e) defining ‘Court’ as per Arbitration & Conciliation Act, 1996 and also having been declared a Commercial Court by notification as contained in memo no. 5080 dated 25.07.2019 by the order of Governor of Bihar in terms of Section 3 of the Commercial Court Act 2015 (Act 4 of 2016) to transfer such cases to any other court which are covered u/s 2 (c) being the commercial disputes read with Section 10 of the Commercial Court Act, 2015 (Act 4 of 2016);

(iii) To issue order/orders, direction/directions and restore the Execution Case No. 382/2019 (M/s Gammon Engineering & Construction Pvt. Ltd. vs. M/s Bihar State Power Holding Company Ltd.) to the court of Ld. District Judge presently pending in the Court of Ld. Additional District Judge-27, Patna;

(iv) To issue a writ of prohibition restraining the Additional District Judges from deciding the cases u/s 2 (c) of the Arbitration and Conciliation Act, 1996 r

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