A miscellaneous appeal lies against rejection of an application under Order 9 Rule 9 CPC; writ under Article 227 is not maintainable due to the statutory remedy.

ORDER :

Rakesh Mohan Pandey, J.

1. The petitioner has challenged an order passed by the learned Commercial Court (District Judge Level) in MJC No. 4 of 2024, dated 31.7.2024, whereby an application moved under Order 9 Rule 9 read with Section 151 of CPC has been dismissed.

2. A specific query was raised as to whether a Miscellaneous Appeal under provisions of Order 43 Rule 1(c) of CPC would lie against the rejection of an application moved under Order 9 Rule 9 of CPC or not?

3. In the present case, an award was passed on 4.4.2021 by the Arbitrator against the petitioner. An application under Section 34 of the Arbitration and Conciliation Act, 1996 , was moved before the learned Commercial Court, Raipur, to set aside the said award. The petition filed under Section 34 of the Act, 1996, was dismissed for want of prosecution vide order dated 14.10.2022. Thereafter, an application for restoration under Order 9 Rule 9, read with Section 151 of CPC, along with an application for condonation of delay, was filed. Learned Commercial Court rejected the said application vide order dated 31.7.2024. Against the said order, the present petition has been preferred.

4. Learned counsel for the petitioner would argue that the appeal would lie according to the provisions of Section 37 of the Act, 1996, against an order passed in a petition filed under Section 34 of the Act, 1996. He would contend that all provisions of the Civil Procedure Code do not apply in arbitration proceedings. He has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of MMTC Limited vs. Vedanta Limited , (2019) 4 SCC 163, wherein it is held that the appeal would lie under Section 37 of the Act, 1996, against an order made under Section 34 of the Act, 1996. He would further submit that there is no provision in the Act, 1996, to prefer a miscellaneous appeal against the rejection of an application moved under Order 9 Rule 9 of CPC.

5. Mr. Shobhit Koshta, Advocate, would submit that the petition under Section 34 of the Act, 1996, was preferred before the learned Commercial Court; therefore, the provisions of the Commercial Courts Act, 2015 (for short ‘Act, 2015’) would apply. He would contend that, according to the provisions of Section 13 of the Act, 2015, an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order 43 of the CPC as amended by this Act and Section 37 of the Arbitration and Conciliation Act, 1996 . He has placed reliance on the decision of the High Court of Allahabad rendered in the matter of General Manager, Telecom vs. M/s Prashant Kumar and Brothers and Another Neutral Citation No. 2024:AHC:119954-DB, wherein it was held that an appeal would be maintainable in light of the proviso to Section 13 (1A) of the Act, 2015; the said proviso provides that an appeal shall lie from such orders passed by a Commercial Court that are specifically enumerated under Order 43 of CPC. He would further argue that, according to the provisions of Order 43 Rule 1(c) of CPC, an order rejecting an application under Order 9 Rule 9 of CPC is appealable, and thus, a miscellaneous appeal against the impugned order is maintainable.

6. I have heard learned counsel for the parties and perused the documents present on the record.

7. Admittedly, an arbitral award was passed against the petitioner, and the petitioner filed a petition under Section 34 of the Act, 1996, before the learned Commercial Court, which was dismissed for want of prosecution on 14.10.2022. Thereafter, an application under Order 9 Rule 9 of CPC was filed, which has been rejected vide order dated 31.7.2024.

8. In the matter of MMTC Limited (supra), the Hon’ble Supreme Court has held that the appeal under Section 37