The provisions of the CC Act prevail over the provisions of the A&C Act in relation to the jurisdiction and powers of Commercial Courts to deal with commercial disputes, including arbitral disputes.

JUDGMENT

Dr. S. Muralidhar, CJ. - These five writ petitions raise interesting questions of law concerning the interpretation as well as interplay of the provisions of the Commercial Courts Act, 2015 (CC Act) with the provisions of the Arbitration and Conciliation Act, 1996 (A&C Act). These petitions also question a Notification dated 13th November 2020, issued by the State of Odisha through its Principal Secretary, Law Department in establishing the Court of the Civil Judge (Senior Division) for the purposes of exercising jurisdiction and powers under the CC Act.

2. The question posed for consideration by this Court is whether for the purposes of the dealing with applications under Sections 9, 14, 34 and so on of the A&C Act jurisdiction can be conferred on a judicial officer subordinate to the rank of a District Judge, i.e., the Principal Civil Judge in the district notwithstanding Section 2 (1) (e) of the A&C Act? An incidental question is whether the power exercised by the State Government under Section 3(3) read with Section 10(3) and 15(2) of the CC Act can override Section 42 of the A&C Act?

Facts in W.P. (C) Nos. 3523, 5491 and 5493 of 2022

3. Three of the five writ petitions are by M/s. M.G. Mohanty, a registered partnership firm (Petitioner No.1) and its managing partner Mr. Rajiv Lochan Mohanty (Petitioner No.2). The background facts in these three petitions are that due to the disputes between the partners of the firm i.e. Petitioner No.2 and proforma Opposite Party Nos.4 to 8, applications under Section 9 were filed before the District & Sessions Judge (D&SJ), Bhubaneswar. These were the Arbitration Petition Nos.56, 57 and 58 of 2020. The learned D&SJ admitted Arbitration Petition No.56 of 2020 by an order dated 12th November, 2020 and on 17th November, 2020 passed an interim order in favour of the Petitioners. He issued notice in the remaining two petitions on 2nd December, 2020.

4. Meanwhile, on 13th November 2020, the impugned notification was issued by the Law Department of the State Government in consultation with the High Court establishing the Court of the Civil Judge (Senior Division) and conferring the powers and jurisdiction of the Commercial Courts under the CC Act on such Court. Following this, on 7th July 2021, the learned D&SJ transferred Arbitration Petitions Nos.56, 57 and 58 of 2020 to the Court of the Senior Civil Judge (Commercial Court), Bhubaneswar.

5. It is further stated that an application was filed before the learned D&SJ, challenging the jurisdiction of the Commercial Court in adjudicating the matter under the A&C Act particularly, since the Presiding Officer of the Commercial Court is subordinate to the rank of a District Judge and that hearing of the application under Section 9 of the A&C Act by the Senior Civil Judge (Commercial Court) would be against the spirit of the A&C Act in terms of the recent definition of the expression, "Principal Civil Court", in the A&C Act. By an order dated 25th October 2021, the learned D&SJ rejected that application inter alia on the ground that the order dated 7th July 2021, passed by the D&SJ transferring the matter to the Senior Civil Judge (Commercial Court) was an order under Section 15 of the A&C Act, and that order had not been challenged before a higher forum.

6. In the present petitions, a challenge has been raised not only to the notification dated 13th November, 2020 but also the order dated 7th July, 2021 passed by the learned D&SJ transferring the cases pending before him to the Court of the Senior Civil Judge (Commercial Court) as well as the above order dated 25th October, 2021. A direction is sought for the establishment of the Commercial Court by conferring the power on the Presiding Officer in the cadre of the District Judge, not subordinate to the rank of the District Judge.

7. In the aforementioned three petitions by M/s. M.G. Mohanty