Back
IN THE HIGH COURT OF MEGHALAYA AT SHILLONG
H.S. THANGKHIEW, W. DIENGDOH, JJ.
National Thermal Power Corporation – Petitioner
Versus
Meghalaya Power Distribution Limited (NTPC) Corporation Ltd. – Respondent
Arb. Appeal No. 1 of 2021
Decided On : 06-07-2021
Arbitration and Conciliation Act, 1996 - Sections 37 (1)(b), 9, 37 and 50 - Commercial Courts Act, 2015 - Section 13 (1A) - Electricity Act - Sections 158 and 79 (1) (f) - Civil Procedure Code,1908 - Order 39 Rule 4 - Granting ad-interim measures - Whether interim, final, ex-parte, ad-interim or otherwise is appealable under Section 37 of Arbitration Act maintenance of status quo - Whether there was a suppression of facts or change circumstances, inasmuch - Whether respondents had sought invocation of arbitration or even expressed a clear intention to do so - whether appeal under Commercial Courts Act, 2015 read with Arbitration Act is maintainable against impugned interlocutory order - Whether learned Commercial Court had rightly refused to vacate ad-interim stay in terms of Order 39 Rule 4 CPC - Whether this Court can examine matter on merit in absence of challenge to interim border of status quo/injunction - Whether it is interlocutory in nature or whether it has determined competing rights of parties in Section 9 application - Whether approved for reporting in Law journals - Whether approved for publication in press - Appellant for vacation of the ex-parte ad- interim order an application under Section 9 of Arbitration and Conciliation Act, 1996 in Arbitration Case which was filed by the respondent interim order - Learned Commercial Court directed for maintenance of status quo regarding encashment of Letter of Credit had been opened in favour of appellant by respondent - Application for vacation of interim order, had raised the issue of jurisdiction and a dispute between appellant, a generating company and respondent a licensee, should strictly be adjudicated under the provisions of Electricity Act, 2003 - Central Electricity Regulatory Commission can adjudicate dispute itself, or choose to refer the same to arbitration, and should dispute be referred to arbitration - Grievance of the appellant is though pertinent issues on jurisdiction and maintainability.
Finding of the Court:
Application is not under challenge in appeal in our opinion is a core issue, proceedings commenced before learned Commercial Court below on Section 9 application itself - Appellant herein has yet to contest same on merits to enable learned Commercial Court to bring the proceedings to a conclusion - Appellant by choosing to impugn only the order filing appeal under Section 37 (1)(b) of the Arbitration Act read with Section 13 (1A) of Commercial Courts Act - Commercial Court Act, inasmuch as, an appeal has to be only against a decree and further it has to meet requirements of Section 37(1)(b) - Exercise has only resulted in lengthening process which should not be case in commercial matters - Court find instant appeal is not maintainable and alternative arguments as noted at paragraph 10 of judgment are also rejected - Parties with regard to jurisdiction of the Commercial Court to entertain Section 9 application under Arbitration Act, argument and other arguments will be best made before the learned Commercial Court at time of hearing of Section 9 application, wherein question of maintainability of Section 9 application apart from the merits, will necessarily have to be gone into - Needed to be added herein, that though in the impugned order it has been observed that the Section 9 application is maintainable.
Result: Appeal is dismissed.
ORDER :
1. Matter taken up via Video Conferencing.
2. The present appeal has been preferred by the appellant (NTPC) under Section 37 (1)(b) of the Arbitration and Conciliation Act, 1996 as amended, read with Section 13 (1A) of the Commercial Courts Act, 2015 against the order dated 11.05.2021 passed by the Judge, Commercial Court, East Khasi Hills District, Shillong in Commercial Misc. Case No. 8 of 2021 filed in Commercial (Arbn.) Case No. 2 of 2021.
3. The impugned order came to be passed on an application under Order 39 Rule, 4 CPC, filed by the appellant for vacation of the ex-parte ad-interim order dated 22.04.2021, on an application under Section 9 of the Arbitration and Conciliation Act, 1996 in Arbitration Case No. 2 of 2021 which was filed by the respondent. By way of the interim order, the learned Commercial Court directed for maintenance of status quo regarding the encashment of Letter of Credit that had been opened in favour of the appellant by the respondent.
4. The appellant before the learned Commercial Court, Shillong in the application for vacation of the interim order, had raised the issue of jurisdiction and that a dispute between the appellant, a generating company and the respondent a licensee, should strictly be adjudicated under the provisions of the Electricity Act, 2003, wherein it is provided in Section 79 (1) (f) that the Central Electricity Regulatory Commission can adjudicate the dispute itself, or choose to refer the same to arbitration, and that should the dispute be referred to arbitration, the same should be under the stipulation as provided in Section 158 of the Electricity Act, 2003.
5. The grievance of the appellant is that though pertinent issues on jurisdiction and maintainability, were raised by the appellant before the learned Commercial Court, the impugned order was passed by holding that no case was made out for vacating the order dated 22.04.2021 under Order 39 Rule 4 CPC, either under the question of suppression of facts or on the question of maintainability of the application under Section 9 of the Arbitration and Conciliation Act, 1996. Hence the appeal.
6. We have heard the learned Counsels for the parties who have both argued at length and placed various authorities in support of their respective arguments and in fact have touched upon the merits of the case itself. Though at the commencement of the admission hearing, Mr. A. Kumar, learned Advocate General had raised a preliminary objection as regards maintainability of the appeal and the same was partly heard, however with the counsel for the appellant Mr. V.K. Jindal, learned Senior advocate resisting the same, the appeal was then heard in its entirety.
7. Mr. V.K. Jindal, learned Senior counsel assisted by Mr. S. Jindal, learned counsel for the appellant, has advanced arguments on three main issues, firstly on the maintainability of the instant appeal, secondly the maintainability of the Section 9 application under the Arbitration and Conciliation Act, 1996 before the learned Commercial Court below and thirdly, on the merits of the impugned order dated 11.05.2021. On the question of maintainability of the appeal, it has been submitted by the learned Senior counsel that though Section 8 of the Commercial Courts Act bars the filing of a civil revision application, the instant application being an appeal, cannot be equated with a civil revision application or petition. Reliance has been placed by the learned Senior counsel on three judgments to illustrate this point: namely Pranathmaka Ayurvedics Pvt. Ltd. and Others vs. Cocosath Health Products, 2020 SCC Online Ker 5476 : (2021) 1 KLJ 293, Sigmarq Technologies Pvt. Ltd. and Others vs. Manugrah India Limited and Others, 2017 SCC Online Bom 9191 : (2018) 1 Bom CR 202 and Antrix Corporation vs. Devas Multimedia, 2018 (6) RAJ 235. Learned Senior counsel submits that the above judgments bring out the fact that an appeal is to be differentiated from a civil revision application and that an a
Granting or refusing to grant any measure and set aside an arbitral award - No final adjudication of Section 9 application nor does impugned order finally decide same - Decision in application under ....
Power to refer parties to arbitration where there is an arbitration agreement - Application of any of the parties to the suit, withdraw such suit or application from the court before which it is pend....
Once an Arbitral Tribunal is constituted, Section 9 of the Arbitration Act prohibits further applications for interim relief unless the party shows that the remedy under Section 17 is ineffective.
Orders granting or refusing ex-parte interim measures under Section 9 of the Arbitration and Conciliation Act, 1996 are appealable under Section 37, despite the Commercial Courts Act, 2015.
It is well settled that where more than one court has jurisdiction, it is open for parties to exclude all other courts.
The main legal point established in the judgment is the interpretation of the definition of 'Court' in section 2(1)(e) of the Arbitration and Conciliation Act, 1996, and its application to determine ....
Venue of arbitration does not equate to its jurisdictional seat; petitions under the Arbitration Act must be filed where arbitration took place, as established in prior Supreme Court rulings.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
