Rashtriyalspat Nigam Limited vs Air Liquide India Holding Private ...
2024 Latest Caselaw 7566 AP

Andhra Pradesh High Court - Amravati

Rashtriyalspat Nigam Limited vs Air Liquide India Holding Private ... on 23 August, 2024

Author: R. Raghunandan Rao

Bench: R. Raghunandan Rao

      IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

           HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
                               &
               HON'BLE SRI JUSTICE HARINATH.N


                           I.A.No.7 of 2024
                                  In
                         C.M.A.No.489 of 2024

Between:

Rashtriya Ispat Nigam Limited,
Administrative Building,
Visakhapatnam Steel Plant,
Visakhapatnam - 530031
Represented by Shri Suggala Ashok Chakravarthy
Deputy General Manager (Utilities)-
Design & Engineering.
                                                           ... Appellant

                                 Versus


Liquide India Holding Private Limited,
A-24/10, Mohan Co-operative, Industrial Estate,
Mathura Road, New Delhi-110044
Through its Additional Director
Mr. Benoit Louis Felix Renard.                         ...Respondent


Counsel for the Appellant             : Sri Arvind Nayyar, learned
                                      Senior Counsel appearing for Sri
                                      Kiran Kumar Vadlamudi.

Counsel for Respondent                : Sri Vivekananda Virupaksha

                                 ORDER

Dt: .08.2024 (per Hon'ble Sri Justice R. Raghunandan Rao)

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

Heard Sri Arvind Nayyar, learned Senior Counsel appearing for

Sri Kiran Kumar Vadlamudi, learned counsel for the appellant and Sri

Vivekananda Virupaksha, learned counsel appearing for the respondent.

2. The appellant herein, had approached this Court, by way

of the present appeal, being aggrieved by certain directions of the

Arbitral Tribunal dated 04.07.2024. The respondent herein raised an

objection as to the maintainability of the appeal, under Section 37 of

the Arbitration and Conciliation Act, 1996 read with the provisions of

the Commercial Courts Act, 2015.

3. This Court, by an order dated 30.07.2024, had held that

this Court does not have jurisdiction to entertain the present appeal.

Thereafter, the appellant has moved the present application under

Section 24 of C.P.C. read with Section 151 of C.P.C for transferring the

present appeal to the Special Court for Trial and Disposal of

Commercial Disputes at Visakhapatnam. There is no dispute that the

said Commercial Court has the jurisdiction to hear and decide the

subject matter of the present appeal.

4. The pleadings in the present application and the

submissions of Sri Arvind Nayyar, the learned Senior Counsel

appearing for Sri Kiran Kumar Vadlamudi, learned counsel for the

appellant are as follows:

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

a) In view of the finding of this Court that the present appeal is not

maintainable before this Court, it would be appropriate to transfer

this appeal to the Commercial Court at Visakhapatnam, by

exercising powers under Section 24 of C.P.C read with Section

151 of C.P.C;

b) In the event of this Court rejecting this application, the appellant

would have to file a fresh appeal before the Commercial Court

and seek condonation of delay in as much as the period

stipulated under the provisions of the Arbitration Act had expired.

Consideration of a condone delay petition and subsequently the

appeal, if the delay is condoned, would be a long dawn affair

which would affect the interest of the appellant. It is submitted

that the appellant is spending roughly Rs. 80 lakhs per day in

maintaining the Air Separation Plants and every day's delay

would cause a loss of the said amount to the appellant;

c) Though this Court does not have jurisdiction to hear the appeal,

it would still have power, under Section 24 (5) of C.P.C, to

transfer this appeal to the Commercial Court at Visakhapatnam;

d) The contention of the respondent, that Section 24(5) of C.P.C

does not empower this Court to transfer appeals filed before

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

courts without jurisdiction, is incorrect. The various provisions of

Section 24 of C.P.C, when read together, would show that the

said provision has to be interpreted in an expansive way and the

absence of the term ‗appeal', in Section 24(5) of C.P.C would not

denude this Court of the power to transfer such appeals to any

Court subordinate to this Court.

e) Section 24(3) makes it clear that the term ―proceeding‖ is to be

understood in an expansive and inclusive manner and as such,

the said term should be taken to include an appeal;

f) Though Section 14 of the Limitation Act is applicable to the

provisions of the Arbitration and Conciliation Act, 1996 and the

time spent in the appeal pending before this Court would have to

be excluded. The said process of obtaining such exclusion from

the Commercial Court at Visakhapatnam would be long drawn

and undue delay would cause immense loss to the appellant. In

any event since the right of the appellant to move an appeal

before the Commercial Court at Visakhapatnam is not lost, it

would only be appropriate and in the interest of justice to transfer

this appeal at the earliest, to the Commercial Court. This would

enable the Commercial Court to take up the main issue in the

appeal at the earliest;

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

g) Learned counsel for the appellant had relied upon the following

judgments.

        i)        Pushpa Kapal vs. Shiv Kumar.1

        ii)       Thirmala    Reddy    Mahalakshmamma             vs.    Mulkluri

                  Muralidhar Rao.2

        iii)      Madhusudan Das Agarwal vs. BHU.3

        iv)       Krishna Devi vs. Karta Singh.4

        v)        S. Chandra Sekhar Rao (Dr.) vs. VST Constructions,

                  Krishna District5.

        vi)       Cholasseri Hamza and Ors. Vs. T.V. Udayaraj.6


        5)        The respondent has filed his counter. The pleadings in the

counter as wells as the submissions made by Sri S. Niranjan Reddy,

learned Senior Counsel appearing for Sri Vivekananda Virupaksha,

learned counsel for the respondent can be summarized as follows:

a) Section 24 of C.P.C permits this Court to transfer any suit,

appeal or proceeding from any Court subordinate to this Court

to any other Court or from this Court to any Court subordinate

to this Court. However, such proceeding can only be done in

1988 SCC Online Del 73

1968 SCC Online AP 141

2015 SCC Online ALL 8104

2014 SCC Online Del 1046

2004 SCC Online AP 505

2016(2) KLT 104

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

relation to suits, appeals or proceedings which have been

filed before a competent Court. In the event of any suit or

proceeding pending before a Court which does not have

jurisdiction, the same can be transferred by this Court under

Section 24(5) of C.P.C. This provision while permitting the

transfer of suits and proceedings pending before an

incompetent Court has expressly excluded the term ―appeal‖.

Consequently, this Court cannot transfer an appeal pending

before a Court which does not have jurisdiction;

b) In the present case, this Court by its order dated 30.07.2024

had held that it does not have jurisdiction to hear this appeal.

In such circumstances, there is no provision in Section 24 of

C.P.C permitting the transfer of this appeal from this Court to

the Commercial Court at Visakhapatnam;

c) The term ―proceeding‖ mentioned in Section 24(5) of C.P.C

can only be an ―original proceeding‖ and not a ―proceeding‖ in

appeal. The fact that the term ―proceedings‖ is found in

conjunction with the term ―suit‖ makes it clear that the term

―proceedings‖ can only be understood to mean ―original

proceedings‖. The explanation given in Section 24(3) of

C.P.C, including execution proceedings in the term

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

―proceeding‖ is in line with this interpretation and the inclusive

definition of ―proceeding‖ set out there cannot be expanded to

include appeals.

d) The omission of the term ―appeal‖ in Section 24(5) while it is

present in Section 24(1) and 24(2) of C.P.C makes it clear

that it is not a cause of causes omission. The rule of

construction ―expressio unius est exclusio alterus‖ would be

applicable in the present case as there is an express

exclusion of the term ―appeal‖ in Section 24(5) of C.P.C.

e) The provisions of Section 151 of C.P.C are not applicable to

the present case as Section 24 of C.P.C regulates the

transfer of cases. The provision of Section 151 C.P.C can

only be applied where there is no provision in law and this

Court would be exercising its inherent jurisdiction;

f) The contention of the appellant that it was unable to file an

appeal before the Commercial Court, during the pendency of

the present appeal is incorrect. The order of the Arbitrary

Tribunal was passed on 04.07.2024 had time till 04.08.2024

to file the appeal. The order of this Court declining to entertain

the appeal was passed on 30.07.2024 and the appellant had

four days to file an appeal before the Commercial Court. The

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

appellant having failed to utilize the said time cannot seek the

indulgence of this Court to get out of the difficulties which

were created by its own conduct;

g) Section 24 of C.P.C and Section 25 of C.P.C were both

amended with effect from 01.02.1977. In Section 25 of C.P.C

relating to the power of Supreme Court to transfer suits, the

terms ―suit, appeal or other proceeding‖ are mentioned.

However, the term ―appeal‖ is missing in Section 24(5). It is

obvious that the legislature while amending these two provisions

had specifically excluded the term ―appeal‖ from Section 24(5)

of C.P.C and the said intention will have to be given effect;

h) An application under Section 24 of C.P.C cannot be filed before

this Court as the roster for considering applications under

Section 24 of C.P.C is with a learned single judge and such

applications cannot be filed before this Court.

i) The learned counsel for the respondent had relied upon the

following judgments.

i) B. Premanand vs. Mohan Koikal7

ii) Indira Nehru Gandhi vs. Raj Narain8

iii) Ram Chandra Aggarwal vs. State of U.P.9

(2011) 4 SCC 266

1975 Supp SCC 1

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

iv) Shyam Nandan Sahay vs. Dhanpati Kuer10

v) Vidya Shanker Tiwari vs. Surya Kant Tiwari11

vi) Murali Lal vs. Raman Lal12

vii) Durgesh Sharma vs. Jayshree13.

            viii)    Deep Industries Ltd. vs. ONGC.14

            ix)      Virtual Perception OPC (P) Ltd. Vs. Panasonic India

                     (P) Ltd.15

            x)      Surender Kumar Singhal vs. Arun Kumar Bhalotia.16

xi) Garment Craft vs. Prakash Chand Goel.17

xii) Varuna Investments vs. Asian Infrastructure (P)

Ltd.18

xiii) Yashovardhan Sinha vs. Satyatej Vyapaar (P) Ltd.19

xiv) Bhaven Constructions vs. Sardar Sarovar Narmada

Nigam Ltd.20

xv) P. Krishnan vs. M. Ramachandran.21

1966 SCC Online SC 232

1960 SCC Online Pat 1

2013 SCC Online ALL 13323

1977 SCC Online All 440

(2008) 9 SCC 648

(2020) 15 SCC 706 page 10-15

2022 SCC Online Del 566 page 22

2021 SCC Online Del 3708 page 38, 48

(2022) 4 SCC 181 page 54-55

2014 SCC Online AP 462 page 58-59

2024 SCC Online Cal 5386 page 67, 73

(2022) 1 SCC 75 page 81-85

2021 SCC Online Mad 5130 page 93-96,100

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

Consideration of the Court:

6) Though elaborate submissions have been made, the

issue before this Court lies in a narrow compass and this court does

not propose to dilate on all the aforesaid submissions, except to the

extent of considering the relevant submissions.

7) Section 24 of C.P.C reads as follows:

24. General power of transfer and withdrawal.--(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage--

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and--

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which 1 [is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section,--

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) ―proceeding‖ includes a proceeding for the execution of a decree or order.

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.

8) Section 24(1) of C.P.C confers power on the High Court or the

District Court to transfer any suit, appeal or other proceeding pending

before the High Court or District Court respectively, for trial or disposal to

any Court subordinate to the High Court or the District Court respectively,

provided such Court is competent to try or dispose of the same. Section

24(2) of C.P.C empowers the High Court or District Court to withdraw any

suit, appeal or other proceeding pending before any Court, subordinate to

the High Court or District Court and transfer or retransfer the same to any

other Court which is subordinate to the High Court or District Court.

Section 24(2) of C.P.C stipulates that directions can be given, in the order

of transfer, either to retry the entire case, to the Court to which the case is

transferred, or to proceed from the point at which it was transferred or

withdrawn. Section 24(3) of C.P.C clarifies certain aspects of how the

transfer is to be done. Section 24(3)(a) of C.P.C explains the meaning of

proceeding to include the proceeding of execution of a decree or order.

Section 24(5) of C.P.C states that a suit or proceeding may be transferred

from a Court which has no jurisdiction to try it.

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

9) The Hon'ble High Court of Kerala in Cholasseri Hamza and

Ors. Vs. T.V. Udayaraj, while considering the transfer of an appeal, filed

before a Court subordinate to the High Court, which did not have

pecuniary jurisdiction to entertain such an appeal, had invoked Section

24(5) of C.P.C to order such a transfer. The Hon'ble High Court of Kerala

held that the power, under Section 24(5), included the power to transfer

appeals also.

10) This view of the Hon'ble High Court of Kerala, which is relied

upon by the appellant, is disputed by the respondent.

11) Section 24(1) of C.P.C, while conferring power on the High

Court to transfer any suit, appeal or proceedings restricted such power of

transfer, in cases which were before Courts without jurisdiction to suits

and proceedings only. Appeals were not mentioned in Section 24(5) of

C.P.C.

12) It may be noticed, prior to the amendment of Section 24 of

C.P.C, in 1976, there was no explicit provision in Section 24, conferring

power on the High Court to transfer the cases filed before Courts which

do not have jurisdiction. Different High Courts, when such issues came up

before them, had either held that the power to transfer such cases was

available to the High Court or that such power was not available. The

erstwhile High Court of Andhra Pradesh had held that any case pending

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

before any Court which did not have jurisdiction, could be transferred,

under unamended section 24 of C.P.C., to any other Court which had

such jurisdiction. The legislature, taking into account, this divergence of

opinion between various High Courts, had amended Section 24 of C.P.C.,

granting power to the High Court to transfer suits or proceedings pending

before Courts which did not have jurisdiction to take up such suits or

proceedings. In the process of this amendment, the term ―appeal‖ had

been omitted in Section 24(5) of C.P.C.

13) The question before this court is whether, the terms suit or

proceeding, mentioned in section 24 (5), can be understood to include

―appeal‖.

14) The Division Bench of the Hon'ble High Court of Kerala, in

the case mentioned above, had transferred an incompetent appeal, by

holding that section 24 (5) covers incompetent appeals also. However,

the issue about the omission of the term ―appeal‖ had not been

considered in that judgment.

15) In Ram Chandra Aggarwal v. State of U.P.,22, the Hon'ble

Supreme Court, while dealing with the question as to proceedings under

the Criminal procedure code could be transferred, by using the provisions

1966 SCC OnLine SC 232 : 1966 Supp SCR 393 : AIR 1966 SC 1888

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

of the unamended section 24, had interpreted the meaning of the term

―other proceeding‖ in this manner:

6. The next contention -- and it was the one pressed strenuously by him -- was that a proceeding upon a reference under Section 146(1) entertained by a civil court not being an original proceeding the provisions of Section 141 CPC are not attracted and that, therefore, those provisions of the Civil Procedure Code which relate to suits are not applicable to a proceeding undertaken by a civil court upon a reference to it under Section 146(1) of the Code of Criminal Procedure. A number of cases dealing with this point were brought to our notice either by him or by Mr Goyal. It seems to us, however, that those cases are not relevant for deciding the point which is before us. In passing, however, we may mention the fact that a Full Bench of the Allahabad High Court has held in Maha Ram v. Harbans [ILR 1941 All 193] that the civil court to which an issue on the question of proprietary rights has been submitted by a revenue court under Section 271 of the Agra Tenancy Act, 1926 has jurisdiction to refer the issue to arbitration under para 1 of Schedule II of the CPC. This decision is based upon the view that by virtue of Section 141 CPC the provisions relating to arbitration contained in the second schedule to the Code of Civil Procedure, before the repeal of that schedule, applied to a proceeding of this kind. Similarly recently this Court has held in Munshi Ram v. Banwarilal [AIR 1962 SC 903] that under Section 41 of the Arbitration Act and also under Section 141 CPC it was competent to the court before which an award made by an arbitration tribunal is filed for passing a decree in terms thereof to permit parties to compromise their dispute under Order 23 Rule 3 CPC. Though there is no discussion, this Court has acted upon the view that the expression ―civil proceeding‖ in Section 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian etc., but that it applies also to a proceeding which is not an original proceeding. Thus, though we say that it is not necessary to consider in this case whether the proceeding before the civil court is a civil proceeding as contemplated by Section 141 or not there is good authority for saying that it is a civil proceeding. All that we are concerned with in this case is whether the provisions of Section 24(1)(b) of the Code of Civil Procedure are available with respect to a proceeding arising out of a reference under Section 146(1) CrPC. The relevant portion of Section 24 may, therefore, be set out. It reads thus:

―On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage--

(a) ***

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

(i) ***

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same;

(iii) ***

It plainly speaks of ―other proceeding pending in any court subordinate to it‖ and not only to the civil proceeding pending before a subordinate court. The decisions of the Privy Council and one decision of this Court which we have earlier quoted would warrant the application of the provisions of the Code of Civil Procedure generally to a proceeding before a civil court arising out of a reference to it by a Magistrate under Section 146(1) of the Code of Criminal Procedure. The expression ―proceeding‖ used in this section is not a term of art which has acquired a definite meaning.

What its meaning is when it occurs in a particular statute or a provision of a statute will have to be ascertained by looking at the relevant statute. Looking to the context in which the word has been used in Section 24(1)(b) of the Code of Civil Procedure it would appear to us to be something going on in a court in relation to the adjudication of a dispute other than a suit or an appeal. Bearing in mind that the term ―proceeding‖ indicates something in which business is conducted according to a prescribed mode it would be only right to give it, as used in the aforesaid provision, a comprehensive meaning so as to include within it all matters coming up for judicial adjudication and not to confine it to a civil proceeding alone. In a recent case Kochadai Naidu v. Nagavasami Naidu [ILR 1951 Mad 413] Ramachandra Iyer, J., (as he then was) was called upon to consider the very question which arises before us. The learned Judge held that a proceeding before a civil court arising out of a reference to it under Section 146(1) CrPC can be transferred by the High Court or District Court under Section 24 CPC because it is in any case a ―proceeding‖. He has also considered this question from the angle of the nature of the proceeding and expressed the view that the proceeding was a civil proceeding to which the procedure for suits could, with the aid of Section 141 CPC be applied. If indeed the term ―proceeding‖ in Section 24 is not confined to a civil proceeding there is no need whatsoever of taking the aid of Section 141 CPC. Upon this view we dismiss the appeal.

16) In view of the above interpretation, it must be held that the

term ―proceeding‖ would not include appeals. Consequently, this court

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

must hold that the present appeal cannot be transferred, under Section

24 (5) of C.P.C., to the Commercial Court at Visakhapatnam.

17) However, this would not mean that the appellant cannot

prefer a fresh appeal to the commercial court, Visakhapatnam or such

Court which has jurisdiction. Such a course of action is available. It

may also be noted that In Consolidated Engineering Enterprises vs.

Principal Secretary, Irrigation Department and Ors.,23 the Hon'ble

Supreme Court considered the applicability of Section 14 of the

Limitation Act, in relation to an application made under Section 34 of

the Arbitration Act. In this case, an application under Section 34 of the

Arbitration Act was made, to a Court, against an arbitral award.

Subsequently it was realized that the said Court did not have

jurisdiction and the application was moved before the competent Court.

This was objected by the respondent, on the ground that Section 14 of

the Limitation Act would not be applicable, in view of the judgment of

the Hon'ble Supreme Court in Union of India v. Popular

Construction Co., excluding the applicability of Section 5 of the

Limitation Act. The Hon'ble Supreme Court held that, the language of

Section 34 of the Arbitration Act, by implication, excluded the

applicability of Section 5 of the Limitation Act. However, the said

language cannot be extended to exclude the provisions of Section 14

(2008) 7 SCC 169 = 2008 SCC Online SC 618

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

of the Limitation Act, as the language in Section 34 does not lend itself

to such exclusion. Similar considerations would apply to an appeal

under Section 37 of the Arbitration and Conciliation Act, 1996.

18) In view of the above, this application is dismissed,

leaving it open to the petitioner herein, to avail of such remedies as are

available to the petitioner.

________________________ R. RAGHUNANDAN RAO, J

______________ HARINATH.N, J RJS

RRR,J & HN,J I.A.No.7 of 2024 in CMA.No.489 of 2024

HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO & HON'BLE SRI JUSTICE HARINATH.N

I.A.No.7 of 2024 in CMA.No.489 of 2024 (per Hon'ble Sri Justice R. Raghunandan Rao)

Dt: .08.2024

RJS