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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, VIRESHKUMAR B. MAYANI, JJ.
M/s Fun N. Fud – Petitioner
Versus
M/s GLK Associates – Respondent
Special Civil Application No. 19522 of 2019
Decided On : 11-11-2019
Constitution of India - Article 227 - Arbitration and Conciliation Act, 1996 – Section 9 – Arbitration Agreement – Jurisdiction – Definition of "Court", that is, "grade inferior" and "principal" -Commercial dispute falling within the provisions of the Act 2015 - Application under Section 9 of the Act 1996 has to be filed only before the Commercial Court and not before the District Court –legality and validity of the order passed by the 2nd Additional District Judgeby which, the Court below declined to hear the Civil Misc. Application preferred by the applicant herein under Section 9on the ground that it had no jurisdiction to hear and entertain such application. The Court below returned the application preferred by the applicant to be presented before the Court of the Principal Senior Civil Judge
Finding of the Court:
Language of the definition of the term the "Court" under Section 2 (e) of the Act of 1996 the Parliament apparently intended to confer the power on the highest judicial authority in a district. It must certainly be taken to have been conscious of the object to be achieved while framing the definition of the term "Court" - It means the district Court is the principal civil Court of original jurisdiction in a district and not a civil Court of a grade inferior to such principal civil Court. The Court of Civil Judge, Senior Division may also be a civil Court of original jurisdiction, but in any case it could not be termed as the principal civil Court of original jurisdiction in a district - ct to have overriding effect.-Save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Act.There is no doubt that Section-21 of the Act 2015 starts with a non-obstante clause - Application preferred by the applicant under Section-9 of the Act, 1996 could have been entertained only by the District Court at Dahod in view of the specific definition of the term 'Court' as defined under Section-2(e) of the Act, 1996 to be read with the Section-11 of the Act, 2015.
Result: Application allowed
JUDGMENT :
J.B. PARDIWALA, J.
1. Rule returnable forthwith. Mr. Ruchir Patel, the learned counsel waives service of notice of rule for and on behalf of the respondents except the respondent no. 7 who is dead and gone.
2. By this application under Article 227 of the Constitution of India, the applicant calls in question the legality and validity of the order passed by the 2nd Additional District Judge, Dahod dated 22.10.2019 below Exh.7 in the Civil Misc. Application No. 45 of 2019, by which, the Court below declined to hear the Civil Misc. Application preferred by the applicant herein under Section 9 of the Arbitration and Conciliation Act, 1996 [for short ‘The Act 1996’] on the ground that it had no jurisdiction to hear and entertain such application. The Court below returned the application preferred by the applicant to be presented before the Court of the Principal Senior Civil Judge, Dahod.
3. The facts giving rise to this application may be summarized as under:
22(A) That the opponents their representatives, agents, employees, assignees and every person claiming for, through and on behalf of them till the constitution of the Arbitral Tribunal may kindly be prohibited/restrained from disturbing, dispossessing or causing any disturbance/obstruction/obstacle in exclusive actual physical possession of the Possessed Leased Premises being legitimately held possessed by the applicant firm as a Lessee herein and accordingly the opponents, its agents, employees, attorneys, assignees, transferees and every person claiming for, through and on behalf of them may kindly be restrained from doing, causing or including in any acts, things or deeds amounting to disturbance, obstruction, invasion in the exclusive possession of the Possessed Leased Premises as held by the applicant firm.
(B) That the opponents, their representatives, agents, employees, assignees and every person claiming for, through and on behalf of them till the constitution of the Arbitral Tribunal may kindly be prohibited/restrained from doing, carrying or indulging in any act, process or action either in or at or over the Possessed Leased Premises causing or likely to cause any obstacle, obstruction, disturbance and or dispossession of the Possession Leased Premises in any manner qua the applicant firm herein.
(C) That the opponents, their representatives, agents, employees, assignees and every person claiming for, through and on behalf of them till the constitution of the Arbitral Tribunal may kindly be prohibited/restrained from doing carrying out indulging in any act, thing or process amounting to or likely to result in any disturbance, obstruction, prevention/prohibition in the ongoing business/occupation/activities/operations of the restaurant, hotel, banquet hall as run, managed and conducted by the applicant by virtue of the leasehold rights in the Possessed Leased Premises.
(D) That the opponents, their representatives, agents, employees, assignees and every person claiming for, through and on behalf of them till the constitution of the Arbitral Tribunal may kindly be prohibited/restrained from doing, indulging or carrying out any act or process amounting to any change, modification and or any alteration in the Possessed Leased Premises and exclusive peaceful possession of the applicant as Lessee of the Possessed Leased Premises in any manner whatsoever.
(E) That the opponents, their representatives, agents, employees, assignees and every person claiming for, through and on behalf of them till the constitution of the Arbitral Tribunal may kindly be prohibited/
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