Patna High Court
M/S Hindustan Construction Company … vs Bihar Rajya Pul Nirman Nigam Limited on 29 November, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.752 of 2023
======================================================
Bihar State Power (Holding) Company Limited (A Government of Bihar
Company) having its registered Office at Vidyut Bhawan, Jawahar Lal Nehru
Marg, P.S Kotwali, Town and District -Patna-800021, through its Deputy Law
Advisor.
... ... Petitioner/s
Versus
1. Gammon India Limited a Public Limited Company registered under the
Companies Act, 1956, having its registered office at Gammon House, Veer
Savarkar Marg, Post Box No. 9129, Prabha Devi, Mumbai, through its
Managing Director.
2. Sri Madan Lal, Father's name not known, Presiding Arbitrator, Resident of
Pratiksha Vatika Parisar, Vijay Nagar, Patna- 800014.
3. Sri K.B. Rajoria, Father's name not known, FIE Arbitrator, resident of B-25,
Greater Kailash Enclave-II, New Delhi- 110048.
4. Sri L.N. Roy Son of Ram Gahan Roy, Resident of Mitra Mandal Colony,
P.O. Anishabad, Patna- 800002,
... ... Respondent/s
======================================================
with
CIVIL MISCELLANEOUS JURISDICTION No. 755 of 2023
======================================================
Bihar State Power (Holding) Company Limited (A Government of Bihar
Company) having its registered office at Vidyut Bhawan, Jawahar Lal Nehru
Marg, P.S. Kotwali, Town and District-Patna-800021, through its Deputy Law
Advisor.
... ... Petitioner/s
Versus
M/s Gammon Engineering and Construction Pvt. Ltd. a Public Limited
Company registered under the Companies Act, 1956, having its registered
office at Gammon House, Veer Savarkar Marg, Post Box No. 9129, Prabha
Devi, Mumbai, through its Managing Director.
... ... Respondent/s
======================================================
with
CIVIL MISCELLANEOUS JURISDICTION No. 305 of 2024
======================================================
M/S Hindustan Construction Company Limited, having its Office at HINCON
House, Lal Bahadur Shastri Marg, Vikhroli (West), Mumbai- 400083.
... ... Petitioner/s
Versus
Bihar Rajya Pul Nirman Nigam Limited, having its registered office at-7,
Sardar Patel Marg, Patna, Bihar- 800015 through its Managing Director.
... ... Respondent/s
======================================================
Appearance :
(In CIVIL MISCELLANEOUS JURISDICTION No. 752 of 2023)
For the Petitioner/s : Mr. Umesh Prasad Singh, Sr. Advocate
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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Mr. Kumar Manish, Advocate
Mr.Vaibhava Veer Shanker, Advocate
Mr. Kumar Saurav, Advocate
Mr. Arun Kumar Prasad, Advocate
Ms Aishwarya Shankar, Advocate
For the Respondent no.1 : Mr. Shyam Kishore Sharma, Sr. Advocate
Mr. Ashok Kumar Sinha, Advocate
Mr.Nilesh Kumar Nirala, Advocate
(In CIVIL MISCELLANEOUS JURISDICTION No. 755 of 2023)
For the Petitioner/s : Mr. Umesh Prasad Singh, Sr. Advocate
Mr. Kumar Manish, Advocate
Mr.Vaibhava Veer Shanker, Advocate
Mr. Kumar Saurav, Advocate
Mr. Arun Kumar Prasad, Advocate
Ms Aishwarya Shankar, Advocate
For the Respondent no.1 : Mr. Shyam Kishore Sharma, Sr. Advocate
Mr. Ashok Kumar Sinha, Advocate
Mr.Nilesh Kumar Nirala, Advocate
(In CIVIL MISCELLANEOUS JURISDICTION No. 305 of 2024)
For the Petitioner/s : Mr.Anurag Saurav, Advocate
Mr. Inderjeet Sinha, Advocate
Ms. Prity Kumari, Advocate
Ms. Sharda Raje Singh, Advocate
Mr. Ankesh Bibhu, Advocate
For the Respondent/s : Md. Nadim Seraj, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 29-11-2024
In these three cases, the issues are common and
interrelated, as such, all have been heard together and are being
disposed of by this common judgment. The reliefs sought by the
petitioners are as under :
Civil Misc. No. 752 of 2023
2. The instant petition has been filed by the petitioner
under Article 227 of the Constitution of India seeking following
reliefs :
"(i) To issue a rule NISI in the nature of writ of
certiorari to quash and cancel the order dated
09.06.2023
passed by the Ld. District Judge,
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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Civil Court, Patna, in Miscellaneous
(Arbitration) Case No. 04/2018 (M/s Bihar State
Power Holding Company Ltd. Vs. Gammon India
Ltd. & Ors.) by which the Ld. District Judge has
been pleased to transfer this case to Ld.
Additional District Judge-27, Patna along with
Execution Case No. 382/2019, a ‘Court’ having
no jurisdiction;
(ii) To issue a writ of mandamus commanding the
‘District Judge’ being the Principal Civil Court
in terms of section 2 (e) defining ‘Court’ as per
Arbitration & Conciliation Act 1996 and also
having been declared a Commercial Court by
notification as contained in memo no. 5080 dated
25.07.2019 by the order of Governor of Bihar in
terms of section 3 of the Commercial Court Act
2015 (Act 4 of 2016) to transfer such cases to
any other court which are covered u/s 2 (c) being
the commercial disputes read with section 10 of
the Commercial Court Act 2015 (Act 4 of 2016);
(iii) To issue order/orders, direction/directions
and restore the Miscellaneous (Arbitration) Case
No. 04/2018 (Bihar State Power Holding
Company Ltd. Vs. Gammon India Ltd. & Ors.) to
the court of Ld. District Judge presently pending
in the Court of Ld. Additional District Judge-27,
Patna;
(iv) To issue a writ of prohibition restraining the
Additional District Judges from deciding the
cases u/s 2 (c) of the Arbitration and
Conciliation Act 1996 read with section 10 (2) &
(3) of the Commercial Court Act 2015;
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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(v) To issue an interim order granting stay of the
further proceedings in the aforementioned case
and/or to stay the operation of the impugned
order during pendency of the present
application;
(vi) To issue other appropriate writ or writs,
order or orders, direction or directions as this
Hon’ble Court may deem fit and proper in the
facts and circumstances of this case”.
Civil Misc. No. 755 of 2023
3. The instant petition has been filed by the petitioner
under Article 227 of the Constitution of India seeking following
reliefs :
“(i) To issue a rule NISI in the nature of writ of
certiorari to quash and cancel the order dated
09.06.2023 passed by the Ld. District Judge,
Civil Court, Patna, in Execution Case No.
382/2019 (M/s Gammon Engineering &
Construction Pvt. Ltd. Vs. M/s Bihar State Power
Holding Company Ltd.) by which the Ld. District
Judge has been pleased to transfer this case to
Ld. Additional District Judge-27, Patna along
with Miscellaneous (Arbitration) Case No.
04/2018 , a ‘Court’ having no jurisdiction along;
(ii) To issue a writ of mandamus commanding the
‘District Judge’ being the Principal Civil Court
in terms of section 2 (e) defining ‘Court’ as per
Arbitration & Conciliation Act 1996 and also
having been declared a Commercial Court by
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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25.07.2019 by the order of Governor of Bihar in
terms of section 3 of the Commercial Court Act
2015 (Act 4 of 2016) to transfer such cases to
any other court which are covered u/s 2 (c) being
the commercial disputes read with section 10 of
the Commercial Court Act 2015 (Act 4 of 2016);
(iii) To issue order/orders, direction/directions
and restore the Execution Case No. 382/2019
(M/s Gammon Engineering & Construction Pvt.
Ltd. Vs. M/s Bihar State Power Holding
Company Ltd.) to the court of Ld. District Judge
presently pending in the Court of Ld. Additional
District Judge-27, Patna;
(iv) To issue a writ of prohibition restraining the
Additional District Judges from deciding the
cases u/s 2 (c) of the Arbitration and
Conciliation Act 1996 read with section 10 (2) &
(3) of the Commercial Court Act 2015;
(v) To issue an interim order granting stay of the
further proceedings in the aforementioned case
and/or to stay the operation of the impugned
order during pendency of the present
application;
(vi) To issue other appropriate writ or writs,
order or orders, direction or directions as this
Hon’ble Court may deem fit and proper in the
facts and circumstances of this case”.
Civil Misc. No. 305 of 2024
4. The instant petition has been filed by the
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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petitioner under Article 227 of the Constitution of India seeking
following reliefs :
“(i) For issuance of Rule NISI in the nature of writ
of certiorari to quash the order dated 14.06.2023
passed by the Learned District Judge, Civil Court,
Patna, in Miscellaneous Case No. 62/2022 (M/s
Hindustan Construction Company Limited Versus
Bihar Rajya Pul Nirman Nigam Limited) by which
the Learned District Judge has been pleased to
transfer this case to Learned Additional District
Judge-XIV, Patna and the Miscellaneous Case has
been erroneously transfer to a “Court” which have
no jurisdiction to decide the Commercial Suit in
terms of Notification No. 5080J/ dated 25.07.2019
(English Translation vide Memo No. 5250 Dated
02.08.2019) issued by Secretary Government of
Bihar in terms of Section 3 of Commercial Court
Act, 2015. along with Execution Case No.
382/2019, a ‘Court’ having no jurisdiction;
(ii) For issuance of a writ of Mandamus
commanding the ‘District Judge’ being the
Principal Civil Court in terms of section 2 (e)
defining ‘Court’ as per Arbitration & Conciliation
Act 1996 and also having been declared a
Commercial Court by notification as contained in
Memo No. 5080 dated 25.07.2019 by the order of
Governor of Bihar in terms of section 3 of the
Commercial Court Act 2015 (Act 4 of 2016) to
transfer such cases to any other court which are
covered u/s 2 (c) being the commercial disputes
read with section 10 of the Commercial Court Act
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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(iii) For issuance of order/orders,
direction/directions to restore the Miscellaneous
Case No. 62 of 2022 (M/s Hindustan Construction
Company Limited Versus Bihar Rajya Pul Nirman
Nigam Limited) to the court of learned District
Judge presently pending in the Court of learned
Additional District Judge-XIV, Patna;
(iv) For issuance of writ of Prohibition restraining
the Additional District Judges from deciding the
cases u/s 2 (c) of the Arbitration and Conciliation
Act 1996 read with section 10 (2) & (3) of the
Commercial Court Act 2015;
(v) For Granting Stay of the further proceedings in
the aforementioned case and/or to stay the
operation of the impugned order during pendency
of the present application;
(vi) To issue other appropriate writ or writs, order
or orders, direction or directions as this Hon’ble
Court may deem fit and proper in the facts and
circumstances of this case”.
Facts of Civil Misc. Nos. 752 of 2023 & 755 of 2023
5. The petitioner- Bihar State Power (Holding)
Company Limited is a Government Company registered under
the provisions of the Companies Act, 1956 as well as the
Electricity Act, 2003. The Company came into existence on
01.11.2012. It appears the Company took over the functions of
erstwhile Bihar State Electricity Board (hereinafter referred to
as ‘BSEB’) which ceased to exist with effect from 10.06.2003,
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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but not as a successor company. The respondent no.1 undertook
some construction work for BSEB after the agreement was
entered into on 22.07.1989. The original completion period was
fifteen months to be reckoned from 1.11.1989 to 15.06.1991. It
further transpires that the period so stipulated was exceeded and
with further negotiation between the parties, the work was
completed on 30.08.2000. The respondent no.1 was paid the
final bill amounting to Rs.20,87,071.26/- and escalation bill of
gross value of Rs. 3,03,015/- was also paid. However, the
respondent no.1 raised certain other claims under different heads
which were rejected by the petitioner. Aggrieved by the decision
of the petitioner, the respondent no.1 invoked clause 4.18 of the
agreement and nominated respondent no. 3 as its nominee
arbitrator and requested the petitioner to appoint one arbitrator
from its side. The petitioner-company nominated respondent no.
4 as its arbitrator vide its letter no. 1 dated 5.01.2011. The two
arbitrators (respondent nos. 3 & 4) were required to nominate a
third arbitrator within 30 days, but they did not appoint the 3 rd
arbitrator within the prescribed period of 30 days. Subsequently,
the respondent no.1 vide its letter dated 04.03.2011 requested
the two arbitrators nominated by the parties to nominate
presiding arbitrator. Pursuant thereto, the two arbitrators
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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nominated respondent no.2 as the Presiding Arbitrator. The
respondent no.2, thereafter, intimated the parties about the
formation of the Arbitral Tribunal for adjudication of the
disputes between the petitioner and the respondent no.1 and the
first sitting of Arbitral Tribunal was fixed on 28.06.2011. The
petitioner raised certain objection regarding constitution of the
Arbitral Tribunal, inter alia, that the agreement was of the year
1989 and the arbitration clause was governed by the Arbitration
Act, 1940 and adoption of the provision of 1996 Act was not
permissible. Further development also took place and the
petitioner withdrew its nominee arbitrator. However, remaining
two arbitrators made an award on 05.07.2018 and sent the same
to the office of the petitioner by email in the evening of
05.07.2018. The petitioner challenged the award dated
05.07.2018 under Section 34 of the Arbitration and Conciliation
Act, 1996 (hereinafter referred to as ‘the A & C Act, 1996) read
with Section 10 (3) of the Commercial Courts Act, 2015
(hereinafter referred to as ‘the C C Act, 2015’) and the
respondent-Gammon India Limited filed Execution Case No.
382 of 2019 under Section 36 of the A & C Act, 1996 for
execution of award. Both the cases, i.e., Miscellaneous
(Arbitration) Case No. 04 of 2018 filed by the petitioner and
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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Execution Case No. 382 of 2019 filed by the respondent no.1,
were heard together by the learned District Judge, Patna and
vide order dated 09.06.2023, the learned District Judge, Patna
transferred both the cases to the learned Additional District
Judge-27, Patna. The petitioner challenged the said order apart
from seeking other reliefs as already mentioned here-in-before.
Facts of Civil Misc. No. 305 of 2024
6. The petitioner- M/s Hindustan Construction
Company Limited is a Company registered under the
Companies Act, 1956, whereas the respondent-Bihar Rajya Pul
Nirman Nigam Limited is a government Company registered
under the Indian Companies Act, 1956. The work of
construction of Four Lane High Level RCC Bridge (2900.00M)
between Daudnagar and Nasriganj including approach roads
over River Sone in the district of Aurangabad and Rohtas under
the NABARD Scheme was awarded by the respondent to the
petitioner for a contract value of Rs.432.69 crores. In terms of
Contract, the work was to be completed by the petitioner within
36 months. The commencement and completion date under the
Contract were 04.03.2014 and 03.03.2017, respectively.
However, it is claimed that on account of several reasons and
causes which were solely attributable to the respondent, the
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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work could not progress in a timely manner as per the planned
scheme. From time to time, the petitioner requested the
respondent to extend the project completion date along with the
associated cost. The respondent extended the project completion
date up to 31.03.2019 without levy of liquidated damage.
Thereafter, the petitioner submitted a claim for an amount of
Rs.5753.16 lacs for the period from 04.03.2014 to 31.05.2015,
however, the same was summarily rejected by the respondent.
The petitioner again submitted a claim for an amount of
Rs.3970.36 lacs for the period from 01.06.2015 to 31.12.2016.
The petitioner further updated its claim amounting to
Rs.1686.03 lacs for the period from 01.01.2017 to 03.03.2017.
When no determination of the claims made by the petitioner was
communicated to the petitioner by the respondent, the petitioner
approached the authorities in terms of Clause 25 of the Contract.
When the authorities did not arrive at any decision, the
petitioner issued the Notice of Intention to commence
arbitration proceeding and requested for appointment of
Arbitrator in terms of Clause 26 of the Contract for adjudication
of dispute. Since the respondent failed to make appointment of
arbitrator, the petitioner approached this Court for appointment
of Arbitrator by filing Request Case No. 04 of 2019 under
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Section 11 of the A & C Act, 1996. This Court vide order dated
02.08.2019 appointed the sole arbitrator for adjudication of
dispute and, accordingly, the matter had come up before the sole
Arbitrator. The sole arbitrator, vide Award dated 31.12.2021,
partly allowed the claim of the petitioner and further vide order
dated 14.02.2022, rejected the claim of the petitioner for
additional award. The petitioner challenged the award dated
31.12.2021 and rejection of additional award dated 14.02.2022
under Section 34 of the A & C Act, 1996 read with Section 10
(3) of the C C Act, 2015 by filing Miscellaneous Case No.62 of
2022. Vide order dated 09.06.2023, the learned District Judge,
Patna transferred the case to the learned Additional District
Judge-27, Patna. The petitioner challenged the said order apart
from seeking other reliefs as already mentioned here-in-before.
Submission on behalf of petitioner of Civil Misc.
Nos.752 of 2023 & 755 of 2023
7. Mr. Umesh Prasad Singh, learned senior counsel
appearing on behalf of the petitioner contended that the learned
District Judge, Patna could not transfer the case to the learned
Additional District Judge-27, Patna and the impugned order has
been passed against the provisions of the law applicable in this
regard. The learned senior counsel further submitted that the
matter arises out of a commercial dispute as defined under
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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Section 2 (1) (c) (vi) of the C C Act, 2015. Section 6 of the C C
Act, 2015 provides for jurisdiction of Commercial Court which
provides that the Commercial Court shall have jurisdiction to try
all suits and applications relating to a commercial dispute of a
Specified Value arising out of the entire territory of the State
over which it has been vested the territorial jurisdiction. The
learned senior counsel further submitted that Commercial Court
has been defined under Section 2 (1) (b) which provides
‘Commercial Court’ means the Commercial Court constituted
under Section 3 (1) of the C C Act, 2015. The learned senior
counsel further submitted that the State Government, vide its
Notification dated 25.09.2019, constituted the court of District
Judge in all districts in the State of Bihar as Commercial Courts
under the C C Act, 2015 to exercise original jurisdiction in
respect of Commercial disputes where the value of suit or
dispute exceeds Rs. 1 Crore in respect of the entire territorial
area of the district, which was amended on 02.08.2019, by
constituting the court of District Judge in all the district of the
State of Bihar as a commercial court to exercise original
jurisdiction in respect of commercial disputes where the value
of the suit or dispute exceeds Rs. 1 Crore in respect of the entire
territorial area of the district. The learned senior counsel further
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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submitted that Section 10 (3) of the C C Act, 2015 provides that
where the subject matter of an arbitration is a commercial
dispute of a specified value and if such arbitration is other than
an international commercial arbitration, all applications or
appeals arising out of such arbitration under the provisions of A
& C 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.
Reading the provisions together with definition of word ‘Court’
under Section 2 (1) (e) of the A & C Act, 1996, the ‘Court’
means the principal Civil Court of original jurisdiction in a
district, and includes the High Court in exercise of its ordinary
original jurisdiction, having jurisdiction to decide the questions
forming the subject matter of the arbitration if the same had
been the subject matter of a suit, but does not include any Civil
Court of a grade inferior to such principal Civil Court, or any
Court of Small Causes. The learned senior counsel further
submitted that Section 2 (1) (e) of the A & C Act, 1996 and
Section 10 (2) (3) of the C C Act, 2015 refer to principal Civil
Court whereas the notification issued by the State Government
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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has used the word ‘District Judge’ of the District to notify the
court of District Judge alone and not Additional District Judge
or any other Judge. The Notification of the State Government
talks about District Judge in two capacities; as an original
commercial court having jurisdiction of Rs. 1 crore and above
and at the same time, as an appellate court to hear the appeal
against the order of Civil Judge (Senior Division) having the
authority to decide commercial disputes between Rs. 3 lacs to
Rs. 1 crore. The learned senior counsel further submitted that as
the arbitral award dated 05.07.2018 is subject matter of
challenge under Section 34 of the A & C Act, 1996, the same is
also covered under Section 10 (3) of the C C Act, 2015 and, as
such, it is only the principal Civil Court, who is none else but
the District Judge of the district concerned, who has been
declared as Commercial Court under Section 10 (3) of the C C
Act, 2015, who alone is competent to hear the challenge under
Section 34 of the A & C Act, 1996.
8. The learned senior counsel for the petitioner further
submitted that the learned District Judge while passing the
impugned order has taken note of Article 236 of the Constitution
of India, but the said interpretation is not correct in view of the
fact that under the aforesaid provision of Article 236 (a), the
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expression “district judge” includes judge of a city civil court,
additional district judge, joint district judge, assistant district
judge, chief judge of a small cause court, chief presidency
magistrate, additional chief presidency magistrate, sessions
judge, additional sessions judge and assistant sessions judge. If
the said interpretation is taken as correct, then the District Judge
as an appellate authority would also come to include Additional
District Judges and if the original commercial dispute covered
by an award made under the A & C Act, 1996 can be transferred
to the court of Additional District Judge, in the same manner,
the District Judge as an appellate authority can also transfer the
appeal to the Additional District Judges. The learned senior
counsel further submitted that there could be one and only one
principal Civil Court and there cannot be more than one
principal Civil Court. Thus, the same would only mean the
District Judge and not the Additional District Judges unless a
notification is separately issued as envisaged under Section 10
(3) of the C C Act, 2015.
9. The learned senior counsel further submitted that
the District Judge is a particular authority just like Chief Justice
of the High Court and this fact becomes clear from the reading
of un-amended Section 11 (5) of the A & C Act, 1996 where the
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word ‘Chief Justice’ was mentioned.
10. The learned senior counsel thereafter referred to
the decisions of the Hon’ble Supreme Court in the cases of
Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. reported in
(2011) 8 SCC 333 and Kandla Export Corporation and Anr. vs.
OCI Corporation and Anr. reported in (2018) 14 SCC 715 on
the point of applicability of special statute and how it will
operate vis-a-vis a general statute.
11. The learned senior counsel further referred to the
decision of the Hon’ble Supreme Court in the case of PASL
Wind Solutions Private Limited vs. GE Power Conversion
India Private Limited reported in (2021) 7 SCC 1 wherein the
Hon’ble Supreme Court, while dealing with the question of
Explanation to Section 47 of the Arbitration Act vis-a-vis
Sections 10 of the Commercial Courts Act, observed in
paragraph 97 as under :
“97. Even otherwise, this Court has made it clear
in BGS SGS SOMA JV v. NHPC [BGS SGS SOMA
JV v. NHPC, (2020) 4 SCC 234 : (2020) 2 SCC
(Civ) 606] (at paras 12 and 13) that the substantive
law as to appeals and applications is laid down in
the Arbitration Act whereas the procedure
governing the same is laid down in the Commercial
Courts Act. In this context, it has also been held
that the Arbitration Act is a special Act vis-à-vis the
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
18/60Commercial Courts Act which is general, and
which applies to the procedure governing appeals
and applications in cases other than arbitrations as
well. In Kandla Export Corpn. v. OCI Corpn.
[Kandla Export Corpn. v. OCI Corpn., (2018) 14
SCC 715 : (2018) 4 SCC (Civ) 664] , this Court
held : (SCC pp. 731 & 733-34, paras 20 & 27)
“20. Given the judgment of this Court in Fuerst
Day Lawson [Fuerst Day Lawson Ltd. v. Jindal
Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC
(Civ) 178] , which Parliament is presumed to
know when it enacted the Arbitration
Amendment Act, 2015, and given the fact that
no change was made in Section 50 of the
Arbitration Act when the Commercial Courts
Act was brought into force, it is clear that
Section 50 is a provision contained in a self-
contained code on matters pertaining to
arbitration, and which is exhaustive in nature.
It carries the negative import mentioned in
para 89 of Fuerst Day Lawson [Fuerst Day
Lawson Ltd. v. Jindal Exports Ltd., (2011) 8
SCC 333 : (2011) 4 SCC (Civ) 178] that
appeals which are not mentioned therein, are
not permissible. This being the case, it is clear
that Section 13(1) of the Commercial Courts
Act, being a general provision vis-à-vis
arbitration relating to appeals arising out of
commercial disputes, would obviously not
apply to cases covered by Section 50 of the
Arbitration Act.
27. The matter can be looked at from a slightly
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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different angle. Given the objects of both the
statutes, it is clear that arbitration itself is
meant to be a speedy resolution of disputes
between parties. Equally, enforcement of
foreign awards should take place as soon as
possible if India is to remain as an equal
partner, commercially speaking, in the
international community. In point of fact, the
raison d’être for the enactment of the
Commercial Courts Act is that commercial
disputes involving high amounts of money
should be speedily decided. Given the objects
of both the enactments, if we were to provide an
additional appeal, when Section 50 does away
with an appeal so as to speedily enforce foreign
awards, we would be turning the Arbitration
Act and the Commercial Courts Act on their
heads. Admittedly, if the amount contained in a
foreign award to be enforced in India were less
than Rs 1 crore, and a Single Judge of a High
Court were to enforce such award, no appeal
would lie, in keeping with the object of speedy
enforcement of foreign awards. However, if, in
the same fact circumstance, a foreign award
were to be for Rs 1 crore or more, if the
appellants are correct, enforcement of such
award would be further delayed by providing
an appeal under Section 13(1) of the
Commercial Courts Act. Any such
interpretation would lead to absurdity, and
would be directly contrary to the object sought
to be achieved by the Commercial Courts Act
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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viz. speedy resolution of disputes of a
commercial nature involving a sum of Rs 1
crore and over. For this reason also, we feel
that Section 13(1) of the Commercial Courts
Act must be construed in accordance with the
object sought to be achieved by the Act. Any
construction of Section 13 of the Commercial
Courts Act, which would lead to further delay,
instead of an expeditious enforcement of a
foreign award must, therefore, be eschewed.
Even on applying the doctrine of harmonious
construction of both statutes, it is clear that
they are best harmonised by giving effect to the
special statute i.e. the Arbitration Act, vis-à-vis
the more general statute, namely, the
Commercial Courts Act, being left to operate in
spheres other than arbitration.””
12. The Hon’ble Supreme Court further held that
Arbitration and Conciliation (Amendment) Act, 2015 and the C
C Act, 2015, both came into effect from 23.10.2015. Referring
to the case of R.S. Raghunath v. State of Karnataka reported in
(1992) 1 SCC 335, the Hon’ble Supreme Court held that even a
later general law which contains a non-obstante clause does not
override a special law as both must be held to operate in their
own spheres. It has been held that there should be a clear
inconsistency between the two enactments before giving an
overriding effect to the non-obstante clause but when the scope
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
21/60of the provisions of an earlier enactment is clear, the same
cannot be cut down by resorting to a non-obstante clause. There
is no inconsistency and the amendment to the General Rules
cannot be interpreted so as to supersede the Special Rules. Just
because there is a non-obstante clause, it cannot be interpreted
that the amendment to the General Rules, though later in point
of time, would abrogate the special rule, the scope of which is
very clear and which coexists particularly when no patent
conflict or inconsistency can be spelt out.
13. The learned senior counsel further referred to
the decision of the Hon’ble Supreme Court in the case of SBP
& Co. vs. Patel Engineering Ltd. and another reported in
(2005) 8 SCC 618 wherein the Hon’ble Supreme Court held that
power under Section 11(6) of the un-amended A & C Act, 1996
in its entirety, could be delegated by the Chief Justice of the
High Court only to another Judge of that Court and by the Chief
Justice of India to another Judge of the Supreme Court and it
has further been held that designation of a District Judge as the
authority under Section 11 (6) of the Act by the Chief Justice of
the High Court is not warranted in the scheme of the Act.
14. The learned senior counsel further referred to
the decision of the Hon’ble Supreme Court in the case of the
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
22/60State of Uttar Pradesh vs. Sabir Ali and another reported in
AIR 1964 SC 1673 wherein it has been held that if certain
provisions of Forest Act provides that offence shall be triable by
a magistrate of the second class or third class, the offence are
not triable by any other magistrate. This decision has been
referred by learned senior counsel to stress the point that when
the Arbitration Act provides for dealing of the matter under
Section 34 of the A & C Act, 1996 by the principal Civil Court
which is the court of the District Judge, which is the commercial
court constituted under Section 3 (1) of the C C Act, no
derogation is permissible.
15. The learned senior counsel further referred to
the decision of the Hon’ble Supreme Court in the case of State
of Jharkhand & Ors. vs. Hindustan Construction Company
reported in (2018) 2 SCC 602 wherein the Hon’ble Supreme
Court referred the three Judge Bench decision in the case of
State of West Bengal vs. Associated Contractors reported in
(2015) 1 SCC 32 which differentiated the definition of ‘court’ in
the A & C Act, 1996 and Arbitration Act, 1940 and held that
under Section 2 (1) (e) of the Act of 1996, the competent court
is fixed as the principal Civil Court exercising original
jurisdiction or a High Court exercising original civil
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
23/60jurisdiction, and no other court and the Supreme Court cannot
be a ‘Court’ for the purposes of Section 42.
16. The learned senior counsel, thus, submitted that
to avoid conflict in jurisdiction, there could not be two principal
Civil Courts and the court of Additional District Judge is not a
court of principal Civil Court on the lines of aforesaid
reasoning.
17. The learned senior counsel also referred to the
decision of the Hon’ble Supreme Court in the case of MSP
Infrastructure Limited vs. Madhya Pradesh Road
Development Corporation Limited reported in (2015) 13 SCC
713. In that case, the issue was raised before the Hon’ble
Supreme Court that a party is entitled under the law to raise an
objection at any stage as to the absence of the jurisdiction of the
court which decided the matter, since the order of such a court is
nullity as objection to the jurisdiction which passed the award
was raised before it. The Hon’ble Supreme Court held that it is
not necessary to refer to the long list of the cases in this regard
since, that is the law. It further held that it must be remembered
that this position of law has been well settled in relation to civil
disputes in courts and not in relation to arbitrations under the A
& C Act, 1996. It has been further held that the Parliament has
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
24/60the undoubted power to enact a special rule of law to deal with
arbitrations and, in fact, has done so. The Parliament, in its
wisdom, must be deemed to have had knowledge of the entire
existing law on the subject and if it chose to enact a provision
contrary to the general law on the subject, its wisdom cannot be
doubted.
18. Thus, learned senior counsel submitted that
when Section 34 read with Section 2 (1) of the A & C Act, 1996
provides one principal Civil Court, there could be no further
delegation of power by such civil court and, hence, transfer of
the cases under Section 34 or even transfer of case under
Section 36 of the A & C Act, 1996 for enforcement of award is
not permissible under the law.
19. The learned senior counsel next referred to the
decision of the learned Single Judge of this Court in the case of
Shri Sudhir Chandra Ghose & Anr. vs. Patna Municipal
Corporation & Ors. reported in 1998 (1) BLJ 3 wherein, while
dealing with Section 502 of Patna Municipal Corporation Act,
1951, the learned Single Judge upheld the power of
superintendence vested in the District Judge for exercise of all
the powers and jurisdiction expressly conferred on or vested in
by the provisions of the Act and not in any authority subordinate
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to it and the learned Single Judge set aside the impugned orders
passed by the learned Additional District Judge-12, Patna.
20. Thus, learned senior counsel submitted that
Section 10 (3) and 13 (1) (A) of the C C Act, 2015 must be
given harmonious construction with Section 2 (1) (e), 34 and 36
of the A & C Act, 1996 and any application filed under Section
34 or 36 would be heard and disposed of by the District Judge
of the concerned district being the principal Civil Court.
21. Thereafter, learned senior counsel referred to the
two decisions of the Hon’ble Division Bench of this Court; first
decision is dated 03.08.2018 passed MJC No. 1323 of 2018
(M/s Vishal Builtech India Pvt. Ltd. vs. The Union of India
and Ors.) and second decision is dated 09.09.2024 passed in
Commercial Appeal No. 8 of 2024 (M/s Johnson Paints Pvt.
Ltd vs. M/s Johnson Paints Company). In MJC No.1323 of
2018, the learned District Judge transferred a case filed before it
under Section 34 of the A & C Act, 1996 to the court of learned
Additional District Judge-V, Patna. The Hon’ble Division Bench
vide its judgment dated 03.08.2018 held that the District Judge
being notified as Commercial Court would only have the
jurisdiction to hear, consider and decide the concerned matter
and thus ordered for transfer of the matter from the court of
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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learned Additional District Judge-V, Patna to the court of
learned District Judge, Patna being the Commercial Court,
Patna.
22. The learned senior counsel further submitted
that in a recent decision of the Hon’ble Division Bench of this
Court presided over by the Hon’ble Chief Justice vide its
judgment dated 09.09.2024 passed in Commercial Appeal No.
8 of 2024 considered the challenge of making over the records
of the case to the learned Additional District Judge-14, Patna by
the learned District Judge, Patna referring to the decision of M/s
Vishal Builtech India (supra) and also to Jaycee Housing
Private Limited & Ors. vs. Registrar (General) Orissa High
court, Cuttak & Ors. reported in (2023) 1 SCC 549 observed
that Section 21 and also Sections 10 & 15 of the same Act gives
overriding effect to the Commercial Court Act; it was
categorically held that even in a challenge under Section 34 of
the Arbitration Act, though ordinarily the jurisdiction lies before
the principal Civil Court of original jurisdiction in a district, the
matter 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;
as per section 10 (3) of the Commercial Court Act. Thus, the
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Hon’ble Division Bench held that in the light of binding
precedent and the provisions of the Commercial Court Act as
also the Notification issued by the State Government, the
learned District Judge erred insofar as making over the case to
the Additional District Judge-XIV and transferred the case to the
learned District Judge, Patna who has been constituted as
Commercial Court under the Notification issued by the State
Government.
23. The learned senior counsel further submitted
that the decision of the Hon’ble Division Bench leaves no doubt
that it is the District Judge who has been designated as a
Commercial Court under the Notification of the State
Government and construing the provisions of Section 10 (3) of
the C C Act, 2015 along with Sections 34 and 36 of the A & C
Act, 1996, the impugned orders transferring the respective cases
are without jurisdiction and the orders being erroneous and
illegal are not sustainable and need to be set aside. In the similar
manner, even the execution case cannot be transferred to the
court of Additional District Judge by the learned District Judge.
Such order making over the case to any other court is not
sustainable.
Submission on behalf of petitioner of Civil Misc.
No. 305 of 2024
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24. The learned counsel appearing on behalf of
petitioner of Civil Misc. No. 305 of 2024 adopting the argument
made on behalf of the petitioner of Civil Misc. Nos. 752 of 2023
& 755 of 2023, referred to the definition clause of Section 2 (1)
(b) and section 3 (3) of the C C Act, 2015 to underscore that it is
the court of District Judge or a court below the level of District
Judge which could be designated as a Commercial Court.
Similarly, Section 3 (A) of the C C Act, 2015 provides for
designation of such number of Commercial Appellate Courts at
District Judge level for the purposes of exercising jurisdiction
and powers conferred on those Courts under the C C Act, 2015.
The learned counsel next referred to Sections 13 and 13 (1A)
where again the word ‘District Judge’ has been mentioned to
signify that the expression ‘District Judge’ has been used to
distinguish the Commercial Court or Commercial Appellate
Court from any other Court. The learned counsel next submitted
that since the word ‘District Judge’ or the court at the level of
District Judge has been used, it has created confusion. The
learned counsel further submitted that Section 10 (3) of the C C
Act, 2015 provides that all applications or appeals arising out of
such arbitration under the provisions of the A & C Act, 1996
except an international commercial arbitration, that would
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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ordinarily lie before the 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. So, the cases
which have been filed under the provisions of A & C Act, 1996
before the principal Civil Court which is the court of District
Judge needs to be continued in the same court as the said court
has been designated as Commercial Court having jurisdiction
over value of subject matter of Rs. 1 Crore and above. Such
jurisdiction has not been vested with any other Additional
District Judge even though Section 2 (I) (e) of the C C Act, 2015
has expanded the meaning of District Judge taking recourse of
Article 236 (a) of the Constitution of India. Yet the conjoint
reading of Sections 3 (3) (3A), 10 (3), 13, 13 (1A) of the C C
Act, 2015 and Notification of the State Government dated
02.08.2019 makes it clear as crystal that the Commercial Court
within the meaning of aforesaid provisions is the court of
District Judge and no other court. The learned counsel further
submitted that Section 21 of the C C Act, 2015 has overriding
effect over all other laws and anything inconsistent with the
provisions of the C C Act, 2015 shall give way to the provisions
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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of this Act. The learned counsel also referred to the decision of
the Hon’ble Division Bench in the case of M/s Johnson Paints
(supra) and submitted that the law has been settled by the
decision of the Hon’ble Division Bench and the learned District
Judge cannot transfer the matter filed under Section 34 of the A
& C Act, 1996 to any other Court of Additional District Judge as
it is the District Judge who has been designated as a
Commercial Court under the Notification dated 02.08.2019 and
any order passed by the learned Additional District Judge would
be without jurisdiction and hence non-est.
Submission made on behalf of the respondents.
25. On the other hand, learned counsel appearing on
behalf of the respondent Bihar Rajya Pul Nirman Nigam
Limited in Civil Misc. No. 305 of 2024 submitted that there is
no infirmity in the impugned order and the learned District
Judge, Patna has considered the contention of the petitioner and,
thereafter, came to the right conclusion that the District Judge in
the Commercial Court Act would include Additional District
Judges as well. The learned counsel further submitted that this
fact is clear from the definition clause of District Judge in the C
C Act, 2015 as Section 2 (1) (e) of the C C Act, 2015 provides
that the District Judge shall have the same meaning as assigned
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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to it in clause (a) of Article 236 of the Constitution of India and
Article 236 (a) of the Constitution of India reads as under :
“Article 236 (a)- the expression “district judge”
includes judge of a city civil court, additional
district judge, joint district judge, assistant district
judge, chief judge of a small cause court, chief
presidency magistrate, additional chief presidency
magistrate, sessions judge, additional sessions
judge and assistant sessions judge”.
26. The learned counsel further submitted that this
definition makes it clear that the District Judge within the
meaning of Section 2 (1) (e) of the C C Act, 2015 would also
include the Additional District Judge etc. So, there could no no
doubt about the power of the District Judge to make over the
case to the court of Additional District Judge. This fact has
further been made clear by Section 3 (3) of the C C Act, 2015
which provides that the State Government may with the
concurrence of the Chief Justice of the High Court appoint one
or more persons having experience in dealing with commercial
disputes to be the Judge or Judges, of a Commercial Court either
at the level of District Judge or a court below the level of a
District Judge. A plain reading of this section makes it
abundantly clear that the legislature intended to have the Judges
at the level of the District Judge to act as Commercial Court and
provided for their appointments as such. The learned counsel
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32/60
further submitted that the legislature being aware of the
provisions of the A & C Act, 1996 further provided that any
arbitration matter which would ordinarily lie before the
principal Civil Court of original jurisdiction in the district shall
be filed and heard and disposed of by the Commercial Court
exercising territorial jurisdiction over such arbitration where
such Commercial Courts have been constituted. Therefore, the
provisions of A & C Act, 1996 could not be read in a manner so
as to make the provisions of Commercial Courts Act redundant.
The learned counsel referred to the decision of the Hon’ble
Supreme Court in the case of Jaycee Housing Private Limited
(supra) wherein the Hon’ble Supreme Court held as under :
“24. Thus, the Objects and Reasons of the
Commercial Courts Act, 2015 is to provide for
speedy disposal of the commercial disputes which
includes the arbitration proceedings. To achieve the
said Objects, the legislature in its wisdom has
specifically conferred the jurisdiction in respect of
arbitration matters as per Section 10 of the 2015
Act. At this stage, it is required to be noted that the
2015 Act is the Act later in time and therefore when
the 2015 Act has been enacted, more particularly
Sections 3 & 10, there was already a provision
contained in Section 2(1)(e) of the 1996 Act. As per
settled position of law, it is to be presumed that while
enacting the subsequent law, the legislature is
conscious of the provisions of the Act prior in time
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
33/60and therefore the later Act shall prevail.
25. It is also required to be noted that even as per
Section 15 of the 2015 Act, all suits and applications
including applications under the 1996 Act, relating
to a commercial dispute of specified value shall have
to be transferred to the Commercial Court. Even as
per Section 21 of the 2015 Act, the 2015 Act, shall
have overriding effect. It provides that 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.
26. Therefore, considering the aforestated provisions
of the 2015 Act and the Objects and Reasons for
which the 2015 Act has been enacted and the
Commercial Courts, Commercial Division and
Commercial Appellate Division in the High Courts
are established for speedy disposal of the
commercial disputes including the arbitration
disputes, Sections 3 & 10 of the 2015 Act shall
prevail and all applications or appeals arising out of
arbitration under the provisions of the 1996 Act,
other than international commercial arbitration,
shall be filed in and heard and disposed of by the
Commercial Courts, exercising the territorial
jurisdiction over such arbitration where such
Commercial Courts have been constituted.
27. If the submission on behalf of the appellants that
all applications/appeals arising out of arbitration
under the provisions of the 1996 Act, other than the
international commercial arbitration, shall lie before
the Principal Civil Court of a district, in that case,
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
34/60not only the Objects and Reasons of enactment of the
2015 Act and establishment of Commercial Courts
shall be frustrated, even Sections 3, 10 & 15 shall
become otiose and nugatory.
28. If the submission on behalf of the appellants is
accepted, in that case, though with respect to other
commercial disputes, the applications or appeals
shall lie before the Commercial Courts established
and constituted under Section 3 of the 2015 Act, with
respect to arbitration proceedings, the applications
or appeals shall lie before the Principal Civil Court
of a district. There cannot be two fora with respect to
different commercial disputes.
29. Under the circumstances, notification issued by
the State of Odisha issued in consultation with the
High Court of Orissa to confer jurisdiction upon the
Court of learned Civil Judge (Senior Division)
designated as Commercial Court to decide the
applications or appeals arising out of arbitration
under the provisions of the 1996 Act cannot be said
to be illegal and bad in law. On the contrary, the
same can be said to be absolutely in consonance
with Sections 3 & 10 of the 2015 Act. We are in
complete agreement with the view [Jaycee Housing
(P) Ltd. v. District Judge, Khurda, 2022 SCC OnLine
Ori 3833] taken by the High Court holding so”.
27. Thus, learned counsel submitted that there
cannot be any application of the provisions of the A & C Act,
1996 when Commercial Courts have been established and there
could be no insistence that the applications or appeals shall lie
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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before the principal Civil Court of a district in exclusion of the
Commercial Courts. Once there is no ambiguity on the
jurisdiction of the Commercial Courts, the wordings of Sections
2 (1) (e), 3 (3) and 10 (3) of the Commercial Courts Act make it
very clear that the matter could be made over by the District
Judge to the court of Additional District Judges.
28. The learned counsel further submitted that so far
as powers of the District Judge and Additional District Judges
are concerned, both are exercising the same power under the
Civil Courts Act, 1887. Thus, learned counsel submitted that
there is no need for interference in the impugned orders and the
same needs to be affirmed.
29. The learned counsel appearing on behalf of the
respondents in Civil Misc. Nos. 752 of 2023 and 755 of 2023
adopted the argument made on behalf of the respondent in Civil
Misc. No. 305 of 2024 and submitted that Section 15 of the
Commercial Courts Act provides for transfer of any case to the
Commercial Court and the District Judge can always transfer
the matter to the Additional District Judge.
30. By way of reply, learned senior counsel
appearing on behalf of the petitioner of Civil Misc. Nos. 752 of
2023 and 755 of 2023 submitted that for appeals, the District
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Judge has recorded the finding that only the court of District
Judge has been designated as Commercial Appellate Court to
exercise the appellate jurisdiction and dispose of the appeals
arising out of the judgment passed by the Commercial Courts
and the appeals cannot be transferred to the court of Additional
District Judges and, on the other hand, the learned District Judge
has recorded that the court of District Judge has been constituted
as Commercial Court and it is not only the court of District
Judge but it also includes the courts of Additional District
Judges, hence, the cases can be assigned to the Additional
District Judges too. Such approach of the learned District Judge
is contradictory as, on one hand, the learned District Judge has
been saying that the Commercial Court which is the court of
District Judge would include the court of Additional District
Judge as well. But when it comes to the appellate authority, the
learned District Judge, Patna is not ready to transfer such appeal
to the court of other Additional District Judges, though language
of Notification is very much the same.
31. I have given my thoughtful consideration to the
rival submission of the parties and also to the facts and
circumstances of the case.
32. The common issues involved in the aforesaid
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three cases which arises for consideration are (i) whether the
District Judge is empowered to make over the cases of
commercial dispute arising out of arbitration proceeding to the
court of Additional District Judge; (ii) whether the court of
Additional District Judge would be a court within the meaning
of Section 34 of the A & C Act, 1996 read with Section 10 of the
Commercial Courts Act; (iii) whether the court of District Judge
includes court of Additional District Judges which would be the
court within the meaning of Commercial Courts Act as notified
under Section 3 of the Commercial Courts Act; (iv) whether the
learned District Judge could transfer execution case filed for
enforcement of an award; (v) whether the court of Additional
District Judges, within the meaning of Section 2 (1) (e), 10 and
10 (3) of the Commercial Courts Act, would mean only the
District Judge of the district and not any other Judge including
the Additional District Judges and (vi) whether under the
Notification dated 02.08.2019, only the District Judge has been
designated as Commercial Court having monetary jurisdiction
of Rs.1 crore and above?
33. The A & C Act, 1996 came into effect on
22.08.1996. The Act has been amended from time to time and
some major amendment were introduced by Act 3 of 2016
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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which came into effect from 23.10.2015. Similarly, the C C Act,
2015 also came into effect from 23.10.2015. The definition of
‘Court’ has been given in Section 2 (1) (e) of the A & C Act,
1996 which reads as under :
“2 (1) (e)- “Court” means-
(i) in the case of an arbitration other than
international commercial arbitration, the
principal Civil Court of original jurisdiction in
a district, and includes the High Court in
exercise of its ordinary original civil
jurisdiction, having jurisdiction to decide the
questions forming the subject-matter of the
arbitration if the same had been the subject-
matter of the arbitration if the same had been
the subject-matter of a suit, but does not include
any Civil court of a grade inferior to such
principal Civil Court, or any Court of Small
Causes;
(ii) In the case of international commercial
arbitration, the High Court in exercise of its
ordinary original civil jurisdiction, having
jurisdiction to decide the questions forming the
subject-matter of the arbitration if the same had
been the subject-matter of a suit, and in other
cases, a High Court having jurisdiction to hear
appeals from the decrees of courts subordinate
to that High Court”.
34. So, within the meaning of Arbitration Act, the
Court is principal Civil Court of original jurisdiction in a
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district, and includes High Court in exercise of its ordinary
original civil jurisdiction, but does not include any Civil court
of a grade inferior to such principal Civil Court, or any Court of
Small Causes. There is no dispute as to which court would be
considered as a principal Civil Court and from a catena of
decisions, it has been settled that the court of District Judge in a
district is the principal Civil Court because bringing any other
court within the ambit of principal Civil Court would naturally
result in the said court being inferior to the court of District
Judge.
35. Now Section 34 (1) of the A & C Act, 1996 reads
as under :
“34 (1). Recourse to a Court against an arbitral
award may be made only by an application for
setting aside such award in accordance with sub-
section (2) and sub-section (3).
36. The word ‘Court’ used in Section 34 will naturally
have the same meaning as provided under Section 2 (1) (e) of
the A & C Act, 1996. In similar manner, the word ‘Court’ would
be read in Section 36 of the A & C Act, 1996 which provides for
enforcement of arbitral award.
37. The Hon’ble Division Bench of this Court in the
case of Shivam Housing Pvt. Ltd. & anr. vs. Thakur Mithilesh
Kumar Singh & anr. reported in 2015 SCC OnLine Pat 6005,
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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while considering the reference as to whether Subordinate Judge
or the District Judge is principal Civil Court of original
jurisdiction in a district within the meaning of Section 34 of the
A & C Act, 1996, considered Section 2 (1) (e) of A & C Act,
1996 and Section 18 of the Civil Courts Act and came to the
conclusion that in the State of Bihar, the Court, within the
meaning of Section 34 of the Act vested with the jurisdiction to
consider the validity of the arbitral award, is the court of District
Judge, who is also having the original civil jurisdiction which is
not a grade inferior to any other civil court within the same
jurisdiction. The Hon’ble Division Bench observed that the
court entertaining the application to set aside the arbitral award
under Section 34 of the Act has to be the civil court of original
jurisdiction highest in grade and may also include the High
Court exercising ordinary original civil jurisdiction to try a suit.
It further held that the civil court considering the arbitral award
cannot be of a grade inferior to the principal Civil Court and
Patna High Court is having no original civil jurisdiction to try a
suit and hence, it is only the District Judge who has jurisdiction
to consider the challenge made to the arbitral award. However,
while parting with the order, the Hon’ble Division Bench
directed that the miscellaneous cases to be dealt with by the
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District Judge in accordance with law and further held that the
same may also include Additional District Judge.
38. The aforesaid decision of Shivam Housing Pvt.
Ltd. (supra) though clears the doubt about the nature of
principal Civil Court holding it to be the court of District Judge
of a district, yet the same decision put the court of Additional
District Judge at the same footing with the court of District
Judge. So, there appears some ambiguity as to whether only the
court of District Judge would be considered the principal Civil
Court or whether it would include the courts of Additional
District Judges as well.
39. Now, the dispute of the parties in the above-
mentioned three petitions would come within the purview of
commercial disputes as defined in Section 2 (1) (c) (vi). Section
2 (1) (b) defines commercial court to mean the commercial
court constituted under Section 3 (1) of the Commercial Courts
Act which reads as under :
“3. Constitution of Commercial Courts.–(1) The
State Government, may after consultation with the
concerned High Court, by notification, constitute
such number of Commercial Courts at District
level, as it may deem necessary for the purpose of
exercising the jurisdiction and powers conferred
on those courts under this Act:
[Provided that with respect to the High
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
42/60Courts having ordinary original civil jurisdiction,
the State Government may, after consultation with
the concerned High Court, by notification,
constitute Commercial Courts at the District Judge
level:
Provided further that with respect to a
territory over which the High Courts have ordinary
original civil jurisdiction, the State Government
may, by notification, specify such pecuniary value
which shall not be less than three lakh rupees and
not more than the pecuniary jurisdiction
exercisable by the District Courts, as it may
consider necessary.][(1-A) Notwithstanding anything
contained in this Act, the State Government may,
after consultation with the concerned High Court,
by notification, specify such pecuniary value which
shall not be less than three lakh rupees or such
higher value, for whole or part of the State, as it
may consider necessary.](2) The State Government shall, after
consultation, with the concerned High Court
specify, by notification, the local limits of the area
to which the jurisdiction of a Commercial Court
shall extend and may, from time to time, increase,
reduce or alter such limits.
(3) The [State Government may], with
the concurrence of the Chief Justice of the High
Court appoint one or more persons having
experience in dealing with commercial disputes to
be the Judge or Judges, of a [Commercial Court
either at the level of District Judge or a court
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
43/60below the level of a District Judge]”.
40. Thereafter, Section 10 of the C C Act, 2015 reads as
under :
“10. Jurisdiction in respect of arbitration matters.
–Where 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 (26 of
1996) that have been filed in a High Court, shall be
heard and disposed of by the Commercial Division
where such Commercial 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 (26 of
1996) that have been filed on the original side of the
High Court, shall be heard and disposed of by the
Commercial Division where such Commercial
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 (26 of
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
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
44/60such Commercial Court has been constituted”.
41. From the aforesaid provision, it is clear that in case
of arbitration other than an international commercial arbitration,
all applications or appeals arising out of such arbitration under
the provisions of Arbitration Act, 1996 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
Courts have been constituted. The catch word is the applications
or appeals that would ordinarily lie before any principal Civil
Court of original jurisdiction in a district, and all such matters
could be dealt with by the Commercial Court exercising
territorial jurisdiction over such arbitration. Even the pending
cases would stand transferred to such Commercial Courts in
terms of Section 15 of the Commercial Courts Act which reads
as under :
“15. Transfer of pending cases.–(1) All suits and
applications, including applications under the
Arbitration and Conciliation Act, 1996 (26 of 1996),
relating to a commercial dispute of a Specified Value
pending in a High Court where a Commercial
Division has been constituted, shall be transferred to
the Commercial Division.
(2) All suits and applications, including applications
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
45/60under the Arbitration and Conciliation Act, 1996 (26
of 1996), relating to a commercial dispute of a
specified value pending in any civil court in any
district or area in respect of which a Commercial
Court has been constituted, shall be transferred to
such Commercial Court:
Provided that no suit or application where the final
judgment has been reserved by the court prior to the
constitution of the Commercial Division or the
Commercial Court shall be transferred either under
sub-section (1) or sub-section (2).
(3) Where any suit or application, including an
application under the Arbitration and Conciliation
Act, 1996 (26 of 1996), relating to a commercial
dispute of specified value shall stand transferred to
the Commercial Division or Commercial Court
under sub-section (1) or sub-section (2), the
provisions of this Act shall apply to those procedures
that were not complete at the time of transfer.
(4) The Commercial Division or Commercial Court,
as the case may be, may hold case management
hearings in respect of such transferred suit or
application in order to prescribe new timelines or
issue such further directions as may be necessary for
a speedy and efficacious disposal of such suit or
application in accordance [with Order XV-A] of the
Code of Civil Procedure, 1908 (5 of 1908):
Provided that the proviso to sub-rule (1) of Rule 1 of
Order V of the Code of Civil Procedure, 1908 (5 of
1908) shall not apply to such transferred suit or
application and the court may, in its discretion,
prescribe a new time period within which the written
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
46/60statement shall be filed.
(5) In the event that such suit or application is not
transferred in the manner specified in sub-section
(1), sub-section (2) or sub-section (3), the
Commercial Appellate Division of the High Court
may, on the application of any of the parties to the
suit, withdraw such suit or application from the
court before which it is pending and transfer the
same for trial or disposal to the Commercial
Division or Commercial Court, as the case may be,
having territorial jurisdiction over such suit, and
such order of transfer shall be final and binding”.
42. Further, Section 21 of the Commercial Courts Act
shows overriding effect of the Commercial Courts Act. Section
21 of the Commercial Courts Act reads as under :
“21. Act 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.
21-A. Power of Central Government to make rules.–
(1) The Central Government may, by notification,
make rules for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the
generality of the foregoing power, such rules may
provide for or any of the following matters, namely–
(a) the manner and procedure of pre-
litigation mediation under sub-section (1) of Section
12-A;]
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(b) any other matter which is required to be,
or may be, prescribed or in respect of which provision
is to be made by rules made by the Central
Government.
(3) Every rule made by the Central Government under
this Act shall be laid, as soon as may be after it is
made, before each House of Parliament, while it is in
session, for a total period of thirty days which may be
comprised in one session, or in two or more successive
sessions, and if, before the expiry of the session
immediately following the session or the successive
sessions aforesaid, both Houses agree in making any
modification in the rule, or both Houses agree that the
rule should not be made, the rule shall thereafter have
effect only in such modified form or be of no effect, as
the case may be; so, however, that any such
modification or annulment shall be without prejudice
to the validity of anything previously done under that
rule.]”.
43. Now, the A & C Act, 1996 has been held to be
Special Act vis-a-vis Commercial Courts Act which is held to be
general law which is applicable to the procedure governing
appeals or applications in cases other than arbitration as well as
has been held by the Hon’ble Supreme Court in the case of
PASL Wind Solutions Private Limited (supra). In the same
decision, it has also been held that even a later general law
which contains a non-obstante clause does not override a special
law. The doctrine of harmonious construction being applied to
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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both statutes, it has been held that they are best harmonized by
giving effect to the special statute, i.e., the Arbitration Act, vis-
a-vis the more general statute, namely the Commercial Courts
Act, being left to operate in spheres other than arbitration. So,
the Arbitration Act being the special and substantive law would
prevail over Commercial Courts Act, if any discrepancy arises;
otherwise both would operate in their own spheres.
44. In terms of Section 3 of the C C Act, 2015, the
State Government issued notification dated 25.07.2019 and later
on substituted by notification dated 02.08.2019. The
Notification dated 02.08.2019 reads as under :
” NOTIFICATION
S.O…………………./ dated-………………….
In exercise of the powers conferred by Section 3 of The
Commercial Courts. Commercial Appellate Courts. Commercial
Divisions and Commercial Appellate Divisions of High Courts Act.
2015 (No. 4 of 2016), the State Government of Bihar, in consultation
with the High Court of Judicature at Patna superseding the
previously issued notification memo no.-1150/J dated-03.03.17 of
Law Department. Bihar. Patna on the subject, is hereby pleased to:-
(a) constitute the Court of Civil Judge (Senior Division) of
each district as a Commercial Court to exercise original
jurisdiction in respect of commercial disputes where the value
of the suit or dispute is not less than Rs. 3 Lacs and up to Rs.
1 Crore:
(b) constitute the Court of District Judge in all the districts of
the State of Bihar as a Commercial Court to exercise original
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
49/60Jurisdiction in respect of commercial disputes where the value
of the suit or dispute exceeds Rs. 1 Crore in respect of the
entire territorial area of the district: and
(c) designate the Court of District Judge in each district as
Commercial Appellate Court to exercise appellate jurisdiction
and dispose of the appeals arising out of the judgments and
orders passed by a Commercial Court below the level of the
District Judge.
This notification shall come into force with effect from the
date of its publication in the official Gazette.
(File No. A/act-10/2016/5250/J)
By Order of the Governor of Bihar”
45. A plain reading of the aforesaid notification would
show the State Government constituted the court of District
Judge in all the districts in the State of Bihar as a Commercial
Court to exercise original jurisdiction in respect of commercial
disputes where the value of the suit or dispute exceeds Rs. 1
crore in respect of the entire territorial area of the district. After
coming into force the notification read with relevant provisions
of Commercial Courts Act and the Arbitration Act, it seems
whenever the commercial dispute arises in connection with any
arbitration matter and jurisdiction of principal Civil Court of
original jurisdiction extends to such dispute, in terms of Section
10 (3) of the C C Act, 2015, the matter would be heard and
disposed of by the Commercial Court.
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46. However, while providing for constitution of
Commercial Court, Section 3 of the Commercial Courts Act
provides for constitution of such number of Commercial Courts
at district level as it may deem necessary for the purpose of
exercising jurisdiction and power is to be conferred on those
courts under this Act. So, there could be more than one
Commercial Court at the district level and it does not appear
necessary that there could be only one Commercial Court
presided over by the District Judge of the concerned district.
Similarly, Section 3 (3) of the C C Act, 2015 provides that the
State Government with the concurrence of the Chief Justice of
the High Court may appoint one or more person having
experience in dealing with commercial disputes to be the Judge
or Judges of a Commercial Court either at the level of District
Judge. In this manner, the State Government may notify more
than one Commercial Courts at the level of District Judge or
below the level of District Judge. Now the District Judge can
only be one court in terms of Section 2 (1) (e) of the A & C Act,
1996 as the District Judge is the only principal Civil Court.
However, when the State Government issued notification, it
notified and constituted the court of District Judge in all the
districts of the State of Bihar as Commercial Court. It means
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only one court has been notified as Commercial Court to
exercise original jurisdiction in respect of commercial disputes
where the value of the suit or dispute exceeds Rs. 1 crore in
respect of the entire territorial area of the district. For the
matters of value not less than Rs. 3 lacs and up to Rs. 1 crore,
the court of Civil Judge (Senior Division) has been constituted
as Commercial Court. Therefore, natural inference flowing from
the reading of the statutory provisions and the notification dated
02.08.2019, is that unless the State Government chooses to
designate the courts of Additional District Judges apart from the
court of District Judge as Commercial Court, the jurisdiction of
Commercial Court would be exercised by the District Judge
alone of the district concerned.
47. At the same time, in the case of Shivam Housing
Pvt. Ltd. (supra), the Hon’ble Division Bench of this Court
while considering the nature of court under principal Civil Court
as defined in Section 2 (1) (e) of the A & C Act, 1996 has taken
within its ambit the court of Additional District Judges as well
while holding that it is the court of District Judge which is a
principal Civil Court. Such interpretation appears to be practical
in view of the fact that the court of District Judge is already
overburdened. After notification as Commercial Court, naturally
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the burden would increase when the execution matters are also
left to be disposed of by the court of District Judge, plight of
such courts could be easily understood. If the court of District
Judge is subjected to everything, the whole purpose of
enactment of Commercial Courts Act and Arbitration and
Conciliation Act would be frustrated as these enactments have
been made to expedite the process of disposal of the arbitration
matters and commercial disputes. This factor is also to be taken
into consideration, but sadly the Notification dated 02.08.2019
has completely missed the point.
48. No doubt, the District Court has been defined by
the Commercial Courts Act by Section 2 (1) and includes the
Judges as mentioned in Article 236 (a) of the Constitution of
India. Literal interpretation of the said section would have made
the court of Additional District Judges to come within purview
of District Judge. However, in the light of pronouncement of the
Hon’ble Division Bench in the case of M/s Vishal Builtech
India (supra) and M/s Johnson Paints Pvt. Ltd. (supra), this
interpretation is not possible and no other inference could be
drawn and no different view could be taken in the light of
binding decisions of the Hon’ble Division Bench of this Court.
Paragraphs 9, 10 & 11 of the decision in the case of M/s
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
53/60
Johnson Paints Pvt. Ltd. (supra) squarely covers the present
dispute. The said paragraphs read as under :
“9. Reference can be made usefully to Jaycee
Housing Private Limited (supra), which
challenged the Notification issued by the State of
Orissa which constituted the court of Civil Judge
(Senior Division) as Commercial Courts for the
purpose of exercising the jurisdiction and powers
under the C.C.Act. The writ petitioners, who had
initiated the proceeding under Section 34 of the
Arbitration Act challenged the Notification on the
ground that it would render nugatory the
provisions of Section 2(1)(e) of the Arbitration
Act. The Hon’ble Supreme Court held so in
paragraphs-24 and 25, which are extracted
hereunder:
“24. Thus, the Objects and Reasons of
the Commercial Courts Act, 2015 is to provide for
speedy disposal of the commercial disputes which
includes the arbitration proceedings. To achieve
the said Objects, the legislature in its wisdom has
specifically conferred the jurisdiction in respect of
arbitration matters as per Section10 of the 2015
Act. At this stage, it is required to be noted that
the 2015 Act is the Act later in time and therefore
when the2015 Act has been enacted, more
particularly Sections 3 & 10, there was already a
provision contained in Section 2(1)(e) of the 1996
Act. As per settled position of law, it is to be
presumed that while enacting the subsequent law,
the legislature is conscious of the provisions of the
Act prior in time and therefore the later Act shall
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
54/60prevail.
25. It is also required to be noted that
even as per Section 15 of the 2015 Act, all suits
and applications including applications under the
1996 Act, relating to a commercial dispute of
specified value shall have to be transferred to the
Commercial Court. Even as per Section 21 of the
2015 Act, the 2015 Act, shall have overriding
effect. It provides that save as otherwise provided,
the provisions of this Act shall have effect,
notwithstanding anything in consistent therewith
contained in any other law for the time being in
force.”
10. By virtue of Section 21, which gives overriding
effect to the C.C.Act and also Sections 10 & 15; it
was categorically found that even in a challenge
under Section 34 of the Arbitration Act, though
ordinarily the jurisdiction lies before the principal
Civil Court of original jurisdiction in a district,
the matter 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; as
per Section 10(3) of the C.C.Act.
11. Going by the above binding precedents and
the provisions of the C.C.Act as also the
Notification issued by Annexure-A/17, we cannot
but observe that the learned District Judge erred
insofar as making over the case to the ADJ-XIV.
The case shall stand transferred to the District
Judge, Patna who has been constituted as a
Commercial Court under Annexure-A/17. The
orders passed by the ADJ; being without
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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jurisdiction, are non est in law.”
49. Since there is specific observation made by the
Hon’ble Division Bench of this Court in the cases of M/s Vishal
Builtech India (supra) and M/s Johnson Paints Pvt. Ltd.
(supra) that it is the court of District Judge which has been
notified as Commercial Court, it was not within the competence
of the District Judge to make over the case to any Additional
District Judge.
50. In such view of the matter, the issue stands settled
and it is held that the District Judge alone would be competent
to exercise original jurisdiction in respect of commercial
disputes where the value of the suit or dispute exceeds Rs. 1
crore in respect of the entire territorial area of the district.
51. Now, Section 36 of the A & C Act, 1996 reads as
under :
“36. Enforcement.–(1) Where the time for
making an application to set aside the arbitral award
under Section 34 has expired, then, subject to the
provisions of sub-section (2), such award shall be
enforced in accordance with the provisions of the
Code of Civil Procedure, 1908 (5 of 1908), in the
same manner as if it were a decree of the court.
(2) Where an application to set aside the
arbitral award has been filed in the court under
Section 34, the filing of such an application shall not
by itself render that award unenforceable, unless the
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56/60court grants an order of stay of the operation of the
said arbitral award in accordance with the
provisions of sub-section (3), on a separate
application made for that purpose.
(3) Upon filing of an application under
sub-section (2) for stay of the operation of the
arbitral award, the court may, subject to such
conditions as it may deem fit, grant stay of the
operation of such award for reasons to be recorded
in writing:
Provided that the court shall, while
considering the application for grant of stay in the
case of an arbitral award for payment of money,
have due regard to the provisions for grant of stay of
a money decree under the provisions of the Code of
Civil Procedure, 1908 (5 of 1908) : ]
[Provided further that where the Court is
satisfied that a prima facie case is made out that,–
(a) the arbitration agreement or contract
which is the basis of the award; or
(b) the making of the award,
was induced or effected by fraud or
corruption, it shall stay the award unconditionally
pending disposal of the challenge under Section 34
to the award.
Explanation.–For the removal of doubts,
it is hereby clarified that the above proviso shall
apply to all court cases arising out of or in relation
to arbitral proceedings, irrespective of whether the
arbitral or court proceedings were commenced prior
to or after the commencement of the Arbitration and
Conciliation (Amendment) Act, 2015.]”
52. For enforcement of award, again the matter would
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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be required to be filed before the Commercial Court of
territorial and pecuniary jurisdiction. However, territorial
jurisdiction has been clarified by the decision of the Hon’ble
Supreme Court in the case of Sundaram Finance Ltd. v. Abdul
Samad reported in (2018) 3 SCC 622. So, the matter could be
filed at any place in the country. If such matter is below Rs. 1
crore and not less than Rs. 3 lacs, the same should be filed
before the court of learned Civil Judge (Senior Division), which
would hear and dispose of the same. If the value of subject
matter is above Rs. 1 crore, the Commercial Court so designated
under Section 3 (3) of the Commercial Courts Act by the State
Government is the court of District Judge. So, it appears even
the execution matter needs to be filed before the court of
District Judge.
53. Now, the question arises whether the District Judge
can transfer the execution matters filed before it to any other
court or the same needs to be heard and disposed of by the court
of District Judge alone?
54. Section 36 of the A & C Act, 1996 specifically
provides that in execution of an award, the provisions of the
Code of Civil Procedure, 1908 would be applicable. Section 39
of the Code of Civil Procedure provides for transfer of decree.
Patna High Court C.Misc. No.752 of 2023 dt.29-11-2024
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Thus, the court where decree has been filed for execution can
transfer the same to other courts having pecuniary jurisdiction.
So far as the A & C Act, 1996 is concerned, there could be no
doubt over the power of the original court to transfer the decree
to any other court in terms of Section 39 of the Code of Civil
Procedure. But the bar created under Sections 3 (3) and 10 (3)
of the Commercial Courts Act would come into play in the light
of Notification issued by the State Government. If a petition
under Section 34 of the A & C Act, 1996 involving commercial
dispute is to be compulsorily filed, heard and disposed of by the
Commercial Court, I do not think a petition under Section 36 of
the A & C Act, 1996 would have a different fate because
allowing the execution matter for awards under the A & C Act,
1996 to be transferred to other court would give rise to
incongruous situation. The Hon’ble Division Bench of this
Court has held and decided that it is the District Judge alone
who being notified as Commercial Court has the jurisdiction to
hear all such matters and not the Additional District Judge. The
word ‘Court’ could not have two different meanings under
Sections 34 and 36 of the A & C Act, 1996 unless so
differentiated by statute or by any authoritative judicial
pronouncement. So, even for execution matters in commercial
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disputes arsing out of arbitration, it is the Commercial Court so
designated whether the court of District Judge or the court of
Civil Judge (Senior Division) which alone would retain the
jurisdiction over such matters. In this manner the Notification
issued by the State Government makes the provision of Section
39 of the Code of Civil Procedure otiose and nugatory.
55. In the light of the discussion made here-in-before,
the authority cited by the learned counsel for the respondent in
Civil Misc. No. 305 of 2024 could not be of any help.
56. Hence, in terms of the decisions of the Hon’ble
Division Bench of this Court in the cases of M/s Vishal
Builtech India (supra) and M/s Johnson Paints Pvt. Ltd.
(supra), the learned District Judge, Patna committed an error of
jurisdiction in transferring the records of Miscellaneous
(Arbitration) Case No. 04 of 2018 and Miscellaneous Case No.
62 of 2022 to the learned Additional District Judges, Patna. By
the same analogy even the execution case could not be
transferred to the court of learned Additional District Judge-14,
Patna and the same needs to be filed, heard and disposed of by
the Commercial Court which in the present case is the court of
learned District Judge, Patna.
57. Therefore, the order dated 09.06.2023 passed in
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Miscellaneous (Arbitration) Case No.04 of 2018, the order dated
09.06.2023 passed in Execution Case No.382 of 2019 and order
dated 14.06.2023 passed in Miscellaneous Case No.62 of 2022,
all by the learned District Judge, Patna, are set aside.
58. Consequently, records of Miscellaneous
(Arbitration) Case No.04 of 2018, Execution Case No.382 of
2019 and Miscellaneous Case No.62 of 2022, having been
transmitted to the Additional District Judges concerned, will be
re-transmitted to the learned District Judge, Patna, who has been
designated as Commercial Court under the Commercial Courts
Act.
59. Accordingly, the instant petitions stand disposed of.
60. Pending interlocutory application, if any, stands
disposed of.
(Arun Kumar Jha, J)
V.K.Pandey/-
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