Back
2019 Supreme(Raj) 828
IN THE HIGH COURT OF RAJASTHAN
Dinesh Mehta, J.
Raj. State Mines and Minerals Ltd. - Appellants
Vs.
Ankur Minmine Product Pvt. Ltd. - Respondent
S.B. Civil Writ Petition No. 920 of 2019
Decided On : 07-03-2019
For the Appellant : Pradhuman Singh and Richin Surana, Advs.
For the Respondents: Sanjay Nahar, Adv.
Headnote:
Constitution of India, 1950 - Articles 227, 136, 226 and 227 - Commercial Division and Commercial Appellate Division of High Courts Act, 2015 – Sections 8, 13, 4 and 5 - Arbitration and Conciliation Act, 1996 - Section 37 – Agricultural - There is no fetter in entertaining a writ petition against an interlocutory order passed by Commercial Court not withstanding prohibition contained of Act - Purposes of deciding question aforesaid it will not be out of place to reproduce of Commercial Courts Bar against revision application or petition against an interlocutory order not withstanding anything contained in any other law for time being in force no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court including an order on issue of jurisdiction and any such challenge subject to provisions shall be raised only in an appeal against decree of Commercial Court – Held, However neither any rule nor any order of the Chief Justice etc – It has been placed before me vide which it can be inferred that the matters like the present one are required to be placed before the Commercial Appellate Division - Close and conjoint reading of leaves no room for ambiguity that matter would go before Commercial Appellate Division only in those cases where Act provides a remedy or an appeal to be heard by Commercial Appellate Division – Since Act does not provide any appeal against interlocutory order passed by Commercial Court - This Court is of firm view that writ petition would not go before Commercial Appellate Division of High Court and is required to be heard by a Court authorized to hear writ petition albeit as per roster- meanwhile Registrar to seek clarification appropriate orders from Honble Chief Justice as to whether writ petitions emanating from Commercial Courts are also required to be laid before Bench hearing SB Civil – Order Accordingly.
Key Points: - The High Court held that a writ petition under Article 227 is maintainable against an interlocutory order of a Commercial Court, notwithstanding the embargo in Section 8 of the Act, with certain self-imposed restrictions. (!) (!) - Section 8 bars civil revision petitions or petitions against interlocutory orders of a Commercial Court, requiring challenges to be raised only in an appeal against a decree, but the court found this does not ban Article 227 petitions in exceptional circumstances. (!) (!) - Appeals from decrees or orders of the Commercial Court can go to the Commercial Appellate Division only if specifically provided by the Act, i.e., via Section 13 and Order XLIII CPC enumerations; there is no provision for appeals against interlocutory orders under the Act. (!) (!) (!) - The matter if maintainable under Article 227 would be heard by a court authorized to hear writ petitions, not by the Commercial Appellate Division, due to the absence of a remedy in the Act for interlocutory orders. (!) - The judgment discusses whether such writ petitions should be heard by a Single Bench or Division Bench, noting lack of rules or orders mandating placement before the Commercial Appellate Division. (!) (!) - The Registrar is to seek clarification from the Chief Justice regarding whether writ petitions emanating from Commercial Courts must be laid before SB Civil Writ Petitions or bench hearing. (!)
What is the maintainability of a writ petition under Article 227 of the Constitution of India against an interlocutory order passed by a Commercial Court, in light of Section 8 of the Commercial Courts Act, 2015?
What is the appropriate forum (Single Bench vs. Division Bench/Commercial Appellate Division) for hearing a writ petition under Article 227 challenging such interlocutory orders, given Sections 4, 5 and 13 of the Act, and the lack of an express provision for such interlocutory orders?
JUDGMENT :
Dinesh Mehta, J.
1. Heard learned counsel for the parties on the following question, which was formulated by this Court on 30.01.2019:-
"Whether a writ petition under Article 227 of the Constitution of India will lie against an interlocutory order passed by a Commercial Court, particularly in view of the embargo contained in Section 8 of Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015?"
2. Both the counsel, more or less, agree that as far as powers of this Court under Article 227 of the Constitution of India are concerned, there is no fetter in entertaining a writ petition against an interlocutory order passed by the Commercial Court, notwithstanding the prohibition contained in Section 8 of the Act.
3. For the purposes of deciding the question aforesaid, it will not be out of place to reproduce Section 8 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereafter referred to as "the Act of 2015"), which reads thus
"8. Bar against revision application or petition against an interlocutory order.-Not withstanding anything contained in any other law for the time being in force, no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, and any such challenge, subject to the provisions of Section 13, shall be raised only in an appeal against the decree of the Commercial Court."
4. Mr. Sanjay Nahar, learned counsel for the respondent assisting the Court on the above question submits that a writ petition under Article 227 of the Constitution of India is maintainable and to buttress such stand, he relies upon a Division Bench judgment dt. 07.05.2018, passed by Gujarat High Court in case of State of Gujarat vs. Union of India, whereby the said High Court held that the writ petition under Article 227 of the Constitution of India, against an interlocutory order passed by the Commercial Court is maintainable. It will not be out of place to reproduce the relevant excerpt of the judgment aforesaid, which run as under:-
"9. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid decisions, we are of the opinion that bar contained under Sec. 8 of the Commercial Courts Act shall not affect the jurisdiction of the High Court under Article 227 of the Constitution of India. If the contention on behalf of the respondents that considering Section 8 of the Commercial Courts Act, even the writ jurisdiction under Article 227 of the Constitution of India is barred, in that case, such a provision would suffer from the vice of unconstitutionality as observed by the Hon'ble Supreme Court in the aforesaid decisions. The power vested in the High Courts to exercise judicial superintendence over the decisions of the Courts and Tribunals within their respective jurisdictions is part of the basic structure of the Constitution and no legislature can take away such power of superintendence conferred under Article 227 of the Constitution of India. It is required to be noted that therefore, even the legislature, while enacting Section 8 of the Commercial Courts Act, seems to have wisely not used the word "maintainable" but has used the word "entertained". At this stage, it is also required to be noted that where the statute specifically provided that against the decision of the Tribunal, only an appeal under Article 136 of the Constitution before the Hon'ble Supreme Court would be maintainable, the Hon'ble Supreme Court in the case of L. Chandra Kumar vs. Union of India And Others (supra) has specifically observed and held that the powers of the supervisory jurisdiction of the High Court under Article 227 of the Constitution against the decision of the Tribunals shall still be available and the aggrieved party can approach the High Court under Article 227 of the Constitution. Therefore, it is observed and held that Section 8 of the
