The judgment emphasizes the vested right of appeal and the principle that a general provision does not derogate a special one.

PRADEEP NANDRAJOG, J.

1. The above captioned OMP (I) (Comm.) 16/2015 is an application filed under Section 9 of the Arbitration and Conciliation Act, 1996 by the petitioner concerning a hire agreement dated January 20, 2012, having an arbitration clause. Pleading that on account of non-payment of hire charges by the respondent the agreement in question has been determined, prayer made is to appoint a receiver to take possession of the assets which were hired. The subject matter of the dispute is concededly a Commercial dispute of the specified value as per the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015.

2. Being filed on November 20, 2015, after the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015 (hereinafter referred as 'Ordinance') was promulgated on October 23, 2015, which provided for Constitution of Commercial Court, Commercial Division and Commercial Appellate Division, concerning Commercial disputes of the specified value, vesting exclusive jurisdiction concerning said disputes in the Commercial Court, Commercial Division and Commercial Appellate Division, the Registry has placed the OMP before the Division Bench, and the reason for which is Section 10 of the Ordinance, which reads as under:-

“10. Whereas the subject matter of an arbitration is a commercial dispute of a Specified Value and –

(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.”

3. On November 30, 2015, this Bench noted that an issue arises concerning right of appeal conferred by Section 37 of the Arbitration and Conciliation Act, 1996, and thus while issuing notice to the respondent we had issued notice to the learned Additional Solicitor General of India returnable for December 07, 2015, on which date the matter was adjourned for today to enable the learned Additional Solicitor General to obtain instructions. The respondent was directed to file a reply to the petition within two days, which we note has not been filed, and as prayed we grant three further days’ time for reply to be filed concerning the averments made in the petition. But because of the fact the issue involves the jurisdiction of whether it is the Commercial Division or the Commercial Appellate Division which would hear the instant petition as also other applications and petitions filed under the Arbitration and Conciliation Act, 1996 after October 23, 2015, with consent of learned counsel for the parties, including the learned Additional Solicitor General of India, we have heard arguments on the issue : whether Section 10 of the Ordinance takes away the right of appeal conferred by Section 37 of the Arbitration and Conciliation Act, 1