2015 Supreme(Del) 3401
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRADEEP NANDRAJOG & MUKTA GUPTA, JJ.
Roger Shashoua & Others – Petitioners
Versus
Mukesh Sharma & Others – Respondents
O.M.P. (COMM) Nos. 1 & 2 of 2015 and W.P. (C) No. 10954 of 2015
Decided On : 30.11.2015
For Petitioner:Mr. Abhinav Vasistha, Senior Advocate, Mr. D.K. Vijay, Mr. Gaurav M. Libahan and Mr. Neeraj Kumar Gupta, Advocates.
For Respondent:Ms. Neeru Sharma, Advocate.
Headnote:
Arbitration and Conciliation Act, 1996 - Commercial Dispute - Section 10, Section 15, Section 13 - The court discussed the interpretation of Section 10 and Section 15 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015, and its implications on pending applications and appeals arising out of arbitration. The court highlighted the need for harmonious interpretation to preserve the mandate of Section 15 and the vested right of appeal. The court also emphasized the preservation of appellate rights under Section 37 of the Arbitration and Conciliation Act, 1996.
Fact of the Case:
The case involved the enforcement of a foreign award and a challenge to an award under Section 34 of the Arbitration and Conciliation Act, 1996. The court addressed the placement of the matters before the Division Bench based on the interpretation of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015.
Finding of the Court:
The court found that pending applications and appeals arising out of arbitration should be placed before the Commercial Division and not the Commercial Appellate Division to preserve the mandate of Section 15 of the ordinance and the vested right of appeal. The court emphasized the need for harmonious interpretation and the preservation of appellate rights under Section 37 of the Arbitration and Conciliation Act, 1996.
Issues: The issues involved the interpretation of Section 10 and Section 15 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015, and the placement of pending applications and appeals arising out of arbitration before the appropriate division.
Ratio Decidendi: The court's decision was based on the need for harmonious interpretation to preserve the mandate of Section 15 and the vested right of appeal, as well as the preservation of appellate rights under Section 37 of the Arbitration and Conciliation Act, 1996.
Final Decision: The court directed the matters to be placed before the learned Single Judge as per roster to ensure the proper placement of pending applications and appeals arising out of arbitration.
PRADEEP NANDRAJOG, J.
1. O.M.P. No. 255 of 2010 and O.M.P. No. 914 of 2011, filed in the year 2010 and 2011 respectively were being heard by a learned Single Judge of this Court. Whereas O.M.P. No. 255 of 2014 has been re-renumbered as O.M.P. (Comm.) No. 1 of 2015, O.M.P. No. 914 of 2015 has been re-numbered as O.M.P. (Comm.) 2 of 2015. Vide O.M.P. No. 255 of 2010 enforcement of a foreign award dated 5.1.2010 has been prayed for. Vide O.M.P. No. 914 of 2011 challenge has been made to an award dated 1.8.2011 by filing objections under Section 34 of the Arbitration and Conciliation Act, 1996.
2. A writ petition filed before the High Court of Judicature at Allahabad on 7.4.2014 registered as W.P. (C) No. 10954 of 2015 laying a challenge to an order dated 6.7.2011 passed by the Court of District Judge, Gautam Budha Nagar returning objections filed under Section 34 of the Arbitration and Conciliation Act, 1996 to be filed in the Court of proper jurisdiction, on being transferred to this Court has been directed by the Supreme Court to be heard by this Court and the Registry listed the same before the Division Bench in view of the order passed by the learned Single Judge on 20.11.2015.
3. By an order dated 20.11.2015 O.M.P. No. 255 of 2010 and O.M.P. No. 914 of 2011 were directed by the learned Single Judge along with the transferred writ petition to be placed before the Division Bench. No reasons have been given as to why the two Original Miscellaneous Petitions and the writ petition should be placed before the Division Bench. The order dated 20.11.2015 reads as under:-
“Learned counsels for the parties submit that vide order dated 15th September, 2015, the Supreme Court has directed this Court to decide these matters by the end of November 2015 and therefore, these matters along the writ petition transferred by the Supreme Court to this Court be listed before the Commercial Appellate Division on 24th November, 2015.
Subject to the orders of the Hon’ble the Chief Justice, list these matters along with the writ petition received from Allahabad Court before Commercial Appellate Division on 24th November, 2015.
Copy of this order be given to counsels for the parties under signatures of Court Master.”
4. In our opinion the matters have to be placed before the learned Single Judge who appears to have directed that the three matters be placed before the Division Bench based on Section 10 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015. The Section reads as under:-
“10. Whereas the subject matter of an arbitration is a commercial dispute of a Specified Value ––
(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 that have been filed in a High Court, shall be heard and disposed of by the Commercial Appellate Division where such Commercial Appellate Division has been constituted in such High Court.
(2) If such arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 that have been filed on the original side of the High Court, shall be heard and disposed of by the Commercial Appellate Division where such Commercial Appellate Division has been constituted in such High Court.
(3) If such arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 that would ordinarily lie before any principal civil court of original jurisdiction in a district (not being a High Court) shall be filed in, and heard and disposed of by the Commercial Court exercising territorial jurisdiction over such arbitration where such Commercial Court has been constituted.”
5. At first blush the impre