Jammu & Kashmir High Court - Srinagar Bench
Zaffar Abbas Din vs Nasir Hamid Khan on 22 August, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
Item No.03
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
AA No.6/2023
c/w
EXP N.1/2023
ZAFFAR ABBAS DIN ...PETITIONER(S)
Through: Mr. Shariq J Reyaz, Adv. (for petitioner in AA
No.6/2023)
Mr. Z. A. Shah, Sr. Adv. with
Mr. Hanan, Advocate (for petitioner in EXP
No.1/2023)
Vs.
NASIR HAMID KHAN ...RESPONDENT(S)
Through: Mr. Z. A. Shah, Sr. Adv. with
Mr. Hanan, Advocate (for respondent in AA
No.6/2023)
Mr. Shariq J. Reyaz, Advocate (for respondent
in EXP No.1/2023)
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
(ORDER)(ORAL)
22.08.2024
1) During the course of hearing of the afore-titled petitions, the
following issues with regard to jurisdiction of this Court to
entertain and decide these petitions have come to the fore:
I. Whether, after the de-operationalization of the
Constitution of Jammu and Kashmir pursuant to
promulgation of the Constitution (Application to
Jammu and Kashmir) Order, 2019 C.O 272, the High
Court of Jammu & Kashmir and Ladakh retains
ordinary original civil jurisdiction?
II. If the answer to Issue No.1 is in affirmative, whether
this Court has jurisdiction to entertain and decide the
cases relating to arbitration in a commercial dispute
of a specified value without the constitution of a
Commercial Division in terms of Section 4 of the
Commercial Courts Act, 2015?
2) For the purposes of determination of the aforesaid two issues,
Shri Z. A. Shah, learned Senior Counsel, and Shri Shariq Reyaz,
have addressed this Court at length.
3) The aforesaid issues are taken up for determination as under:
Issue No.I: Whether, after the de-operationalization of the
Constitution of Jammu and Kashmir pursuant to
promulgation of the Constitution (Application
to Jammu and Kashmir) Order, 2019 C.O 272,
the High Court of Jammu & Kashmir and Ladakh
retains ordinary original civil jurisdiction?
4) The High Court of Judicature for the Jammu and Kashmir
State was established by His Highness Maharaja Hari Singh vide
Order No.1 of 1985 (BK) (1928 AD). In the year 1939 (AD), the
Maharaja promulgated the Jammu and Kashmir Constitution Act,
1996(BK), wherein the provisions relating to High Court were
incorporated. Section 56 of the Constitution Act, 1996 deals with
the jurisdiction of the High Court. The relevant extracts of the said
provision read as under:
(i) Jurisdiction of the High Court
Section 56 of the Act dealt with the
jurisdiction of the High Court and provided:
(1) The High Court is a court of record,
(2) The High Court shall have jurisdiction to
hear and determine any original civil suit
or other proceeding of which the value is
not less than rupees ten thousand and
every such proceeding shall be instituted
in the High Court;
(3) The High Court shall have jurisdiction to
entertain and dispose of such appeals,
revisions and other cases-civil, criminal
or revenue as it may be empowered to do
under any enactment in force in the State.
The High Court had jurisdiction to
entertain a civil suit of value of rupees ten
thousand or over and to dispose of such appeals,
revisions and other cases as it was empowered
to hear under any enactment in force in the
State. Appeals from the lower courts lay to the
High Court and section 60........."
5) A perusal of Section 56(2) quoted hereinabove, would reveal
that the High Court of Jammu and Kashmir was conferred the
jurisdiction to hear and determine any original suit or other
proceeding of which the value was more than Rs.10,000/. Thus, the
said provision conferred original civil jurisdiction upon the High
Court of Jammu and Kashmir.
6) On 28th August, 1943, Maharaja of Jammu and Kashmir
granted the Letters Patent to the High Court of Jammu and
Kashmir. Clause (10) of the Letters Patent provided for civil original
jurisdiction of the High Court whereas Clause (11) provided for
extraordinary original jurisdiction for the High Court. The same are
reproduced as under:
Civil Original Jurisdiction of the High Court
10. And we do hereby ordain that the said High Court
of judicature shall have jurisdiction to hear and
determine any suit or original proceeding of which the
value is not less than rupees ten thousand where the
said suit or original proceeding relates to any right, title
or obligation rising in the towns of Srinagar and Jammu
or anywhere else within our State and notwithstanding
anything contained in any section of the code of civil
procedure every such suit or proceeding shall be
instituted in the said High Court.
Extraordinary Original Jurisdiction
11. And we do further ordain that the High Court of
judicature shall have power to remove and to try and
determine, as a court of extraordinary original
jurisdiction, any suit being or falling within the
jurisdiction of any court subject to its superintendence
when the said High Court shall think proper to do so,
either on the agreement of the parties to that effect or
for purpose of justice, the reasons for so doing being
recorded in the proceedings of the said High Court.
7) From a reading of Clause (10) quoted above, it is clear that
High Court of Judicature of Jammu and Kashmir State was
conferred and vested with the civil original jurisdiction to hear and
determine any suit or original proceeding of which the value is not
less than Rs.10,000/ whereas Clause (11) quoted above, vested the
High Court of Judicature for Jammu and Kashmir extraordinary
original jurisdiction to remove and to try and determine any suit
falling within the jurisdiction of any Court subject to the
superintendence of the High Court of Judicature for Jammu and
Kashmir.
8) The Jammu and Kashmir Constitution Act, 1996 (BK) was
replaced by the Constitution of Jammu and Kashmir, 1957. By
virtue of Section 102 of the said Constitution, the existing
jurisdiction of the High Court was saved. The same reads as under:
"102. Saving of existing jurisdiction of the High
Court.- Subject to the provisions of this Constitution
and to the provisions of any law for the time being in
force, the jurisdiction of and the law administered in
the High Court and the respective powers of the Judges
thereof in relation to the administration of justice in the
Court, including any power to make rules of Court and
to regulate the sittings of the Court and of members
thereof, sitting alone or in Division Courts, shall be the
same as immediately before the commencement of this
Constitution :
Provided that nothing in this section shall be deemed to
exclude institution of original civil suits without limit as
regards the value in the principal civil court of original
jurisdiction in the district."
9) From a reading of the aforesaid provision, it is clear that
jurisdiction of the High Court vested in terms of Section 56 of the
Constitution Act, 1939 was saved by the aforesaid provisions of the
Constitution of J&K, 1957, meaning thereby that civil original
jurisdiction of the High Court of Jammu and Kashmir continued
to exist even after the repeal of the Constitution Act, 1939 and
coming into operation of the Constitution of Jammu and Kashmir,
1957.
10) On 5th August, 2019, the President of India, in exercise of his
powers under clause (1) of Article 370 of the Constitution of India,
promulgated the Constitution Application to Jammu and Kashmir
Order 2019, vide GSR 551 (E) C.O 272 In terms of clause (2) of the
aforesaid Constitution Order, all the provisions of the Constitution
of India, as amended from time to time, have been made applicable
to the erstwhile State of Jammu and Kashmir, meaning thereby
that the Constitution of the Jammu and Kashmir, 1957, has been
de-operationalized.
11) After the promulgation of the aforesaid Constitution Order,
the Parliament of India enacted the Jammu and Kashmir
Reorganization Act, 2019 (hereinafter referred to as "Act of 2019").
Part-VIII of the Act of 2019 relates to the High Court. Sections 75
and 77, which fall in Part-VIII of the Act of 2019, are relevant to the
context and the same are reproduced as under:
"75. High Court of Jammu and Kashmir to be common
High Court.--(1) On and from the appointed day,--
(a) the High Court of Jammu and Kashmir shall be the
common High Court for the Union territory of Jammu and
Kashmir and Union territory of Ladakh;
(b) the Judges of the High Court of Jammu and Kashmir for
the existing State of Jammu and Kashmir holding office
immediately before the appointed day shall become on
that day the Judges of the common High Court.
(2) The expenditure in respect of salaries and allowances
of the Judges of the common High Court shall be allocated
amongst the Union territory of Jammu and Kashmir and
Union territory of Ladakh on the basis of population ratio.
77. Practice and procedure in common High Court of
Jammu and Kashmir.--Subject to the provisions of this
Part, the law in force immediately before the date referred
to in sub-section (1) of section 75 with respect to practice
and procedure in the High Court of Jammu and Kashmir
shall, with the necessary modifications, apply in relation to
the common High Court of Jammu and Kashmir and
accordingly, the common High Court of Jammu and
Kashmir shall have all such powers to make rules and
orders with respect to practice and procedure as are
immediately before that date exercisable by the common
High Court of Jammu and Kashmir:
Provided that any rules or orders which are in force
immediately before the date referred to in sub-section (1)
of section 75 with respect to practice and procedure in the
High Court of Jammu and Kashmir shall, until varied or
revoked by rules or orders made by the common High Court
of Jammu and Kashmir, apply with the necessary
modifications in relation to practice and procedure in the
common High Court of Jammu and Kashmir as if made by
that Court."
12) From a perusal of the aforesaid provisions, it becomes clear
that the High Court of Jammu and Kashmir that was existing at the
time of coming into force of the Act of 2019, is to function as a
common High Court for the Union Territories of the Jammu &
Kashmir and Ladakh and the Judges of the existing High Court
have become the Judges of the common High Court. Section 77 of
the Act provides that the law in force on the date of enforcement of
Act of 2019 with respect to practice and procedure in the High
Court of Jammu and Kashmir, would apply in relation to the
common High Court of Jammu and Kashmir and the said Court
shall have the same powers with regard to making of rules and
orders with respect to practice and procedure as were immediately
vested with the High Court before the enforcement of the Act of
2019. It further provides that the rules and orders in force before
the enforcement of Act of 2019 with respect to practice and
procedure in the High Court of Jammu and Kashmir would
continue to apply unless varied or revoked.
13) Another provision which needs to be taken note of is the
Jammu and Kashmir Reorganization (Removal of Difficulties)
Order, 2019, issued vide S.O. 3912 (E). The clauses 2(1) and 2(14)
of the said Order are relevant to the context and the same are
reproduced as under:
"2. Removal of difficulties: The difficulties arising in
giving effect to the provisions of the principal Act have
been removed in the following manner, namely:-
(1) The Judges of the High Court of Jammu and
Kashmir for the existing State of Jammu and Kashmir
holding office immediately before the appointed day
shall be deemed to have been appointed under article
217 of the Constitution and they shall be deemed to
have taken oath or affirmation under article 219 of the
Constitution and shall continue to function as Judges
of common High Court of the Union Territory of
Jammu and Kashmir and the Union Territory of Ladakh
from the appointed day.
xxx xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx xxx
(14)Anything done or any action taken including any
appointment or delegation made, notification,
instruction or direction issued, form, bye-law or
Scheme framed, certificate obtained, permit or licence
granted or registration effected or agreement
executed under any law shall be deemed to have been
done or taken under the corresponding provisions of
the Central laws now extended and applicable to the
Union Territory of Jammu and Kashmir and the Union
Territory of Ladakh and shall continue to be in force
accordingly, unless and until superseded by anything
done or any action taken under the Central laws now
extended."
14) As per clause 2(1) quoted above, it is clear that the Judges of
the High Court of the Jammu and Kashmir holding office
immediately before the enforcement of the Act of 2019 are deemed
to have been appointed under Article 217 of the Constitution and
they shall be deemed to have taken oath or affirmation under
Article 219 of the Constitution of India. So far as clause 2(14), as
quoted above, is concerned, the same has saved all actions
including appointments, notifications, instructions and directions
under any law or authority prior to the enforcement of the Act of
2019 and it also provides that the same shall continue to be in force
unless and until superseded by anything done or any action taken
under the Central laws now extended.
15) From the foregoing legislative history of the High Court of
Jammu and Kashmir, which is now known as High Court of Jammu
& Kashmir and Ladakh, it comes to the fore that ordinary original
civil jurisdiction was vested with the said High Court initially in
terms of Section 56 (2) of the J&K Constitution Act 1939 (1996 BK),
which was later on saved by Section 102 of the Constitution of
Jammu and Kashmir, 1957. With the de-operationalization of the
Constitution of Jammu and Kashmir, 1957 upon issuance of
Constitution Order 272 dated 5th August, 2019, the source of
jurisdiction to entertain and decide original civil suits in terms of
the J&K Constitution Act, 1939, as saved by Section 102 of the
Constitution of J&K, 1957, has certainly been taken away and the
same is no longer available to the existing High Court of J&K and
Ladakh. The question that arises for determination is as to whether
after the de-operationalization of the Constitution of Jammu and
Kashmir, 1957, and enactment of the Jammu and Kashmir Re-
organization Act, 2019, civil original jurisdiction is still vested with
the High Court of Jammu and Kashmir.
16) In the above context, certain doubts have been expressed by
the learned Senior Counsel, Mr. Z. A. Shah, about the existence of
ordinary original civil jurisdiction of the High Court in the absence
of any constitutional provision in this regard, particularly because
the Act of 2019 does not contain any provision to this effect.
17) It is true that with the de-operationalization of Constitution
of J&K, 1957, the existing High Court does not have the luxury of
deriving ordinary original civil jurisdiction from any constitutional
provision. It is also a fact that there is no statutory provision in the
Act of 2019, which specifically confers ordinary original civil upon
the existing High Court. However, the Letters Patent for the High
Court of Judicature for Jammu and Kashmir issued by the
Maharaja in 1943 are still in operation. This is so because in terms
of Section 77 read with clause 2(14) of the Removal of Difficulties
Order issued vide S.O.3912 (E), the law in force with respect to
practice and procedure in the High Court of Jammu and Kashmir
on the date of enforcement of the Jammu and Kashmir
Reorganization Act, 2019, would continue to hold the field unless
varied or revoked. The Letters Patent for the High Court of
Judicature for the Jammu and Kashmir issued by the Maharaja on
28th August, 1943, governs the practice and procedure in the High
Court and the same was in force as on date of enforcement of the
J&K Reorganization Act, 2019. The Letters Patent including clause
(10) thereof, would, therefore, continue to hold the field unless and
until the same is varied or revoked.
18) A five Judge Bench of this Court in the case of L. Tota Ram
vs. State, AIR 1975 J&K 73, has held that jurisdiction in relation
to civil suits and original proceedings in the High Court of Jammu
and Kashmir is not only derived from Section 56(2) of the Jammu
and Kashmir Constitution Act, 1996, which was left intact by
Section 102 of the Constitution of J&K, 1957, but it is also derived
from clause (10) of the Letters Patent. A similar view has been taken
by a Full Bench of this Court in the case of Ramesh Chand
Kathuria and another vs. Trikuta Chemicals Pvt. Ltd and
another, AIR 2015 J&K 52.
19) In view of aforesaid legal position, it is clear that while we
cannot bank upon the provisions of the J&K Constitution Act, 1939
and Constitution of J&K, 1957, so far as existence of civil original
jurisdiction of this High Court is concerned, but clause (10) of the
Letters Patent is still available for vesting the ordinary original civil
jurisdiction with the High Court of Jammu and Kashmir. It is to be
noted that powers conferred upon the High Court under the Letters
Patent are akin to the constitutional powers of the High Court.
(Refer Sharda Devi vs. State of Bihar, (2002) 3 SCC 705).
Therefore, when a Letters Patent grants to the High Court power to
hear and decide original civil proceedings, the same would not
vanish upon de-operationalization of a constitutional provision
conferring a similar jurisdiction upon the High Court.
20) The Jammu and Kashmir High Court Rules, 1999, which
were in force as on date of enforcement of the J&K Reorganization
Act, 2019, also continue to hold the field in view of the provisions
contained in Section 77 of the said Act. In terms of Rule 29(4) of the
High Court Rules, a Single Judge of the High Court has jurisdiction
to hear and dispose of a suit coming before the Court in exercise of
its ordinary or extraordinary civil jurisdiction including a
proceeding on the original side of the Court under any law for the
time being in force. As already stated, clause (10) of the Letters
Patent vests ordinary original jurisdiction and clause (11) thereof,
vests extraordinary original civil jurisdiction with the High Court of
Jammu and Kashmir. The said jurisdiction in terms of the Rule 29
of the Jammu and Kashmir High Court Rules is to be exercised by
a Judge sitting alone. This further strengthens the proposition that
civil original jurisdiction is vested with the existing High Court.
21) In view of the aforesaid position of law, there is no manner of
doubt in holding that this Court even after de-operationalization of
the Constitution of Jammu and Kashmir, 1957, and the enactment
of the J&K Reorganization Act, 2019, is vested with the ordinary
original civil jurisdiction as well as extraordinary original civil
jurisdiction. The issue No.1 is answered accordingly.
Issue No.II: If the answer to Issue No.1 is in
affirmative, whether this Court has jurisdiction to
entertain and decide the cases relating to arbitration
in a commercial dispute of a specified value without
the constitution of a Commercial Division in terms of
Section 4 of the Commercial Courts Act, 2015?
22) For answering the aforesaid question, first of all we need to
take note of Section 10 of the Commercial Courts Act which relates
to jurisdiction in respect of arbitration matters. It 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 such
Commercial Court has been constituted."
23) From a perusal of the aforesaid provision, it is clear that if the
subject matter of an arbitration is a commercial dispute of a
specified value, if such arbitration is an international commercial
arbitration, all proceedings arising out of such arbitration shall
have to be heard and disposed of by the Commercial Division of the
High Court and in case it is an arbitration other than an
international arbitration and the same has been filed on the original
side of the High Court, it is the Commercial Division of the High
Court which has to hear and dispose of such proceeding. It is
further provided that in case of arbitrations other than
international commercial arbitrations that would ordinarily lie
before any principal civil court of original jurisdiction in a district
(not being a High Court), the same are to be decided by a
Commercial Court exercising territorial jurisdiction over such
arbitration where such Commercial Court has been constituted.
Thus, it is clear that the proceedings in respect of an arbitration in
a commercial dispute of specified value (other than international
arbitration), if filed on the original side of the High Court, have to
be heard and disposed of by the Commercial Division of the High
Court, whereas such proceedings that are ordinarily filed before
other civil courts, have to be heard and decided by a Commercial
Court.
24) In the Union Territory of Jammu and Kashmir, the
Government has, vide Notification S.O.47 dated 4th February,
2020, in exercise of its powers under sub-section (1) of Section 3 of
the Commercial Courts Act, designated Courts of Additional
District Judge (Bank Cases), Jammu and Srinagar, as Commercial
Courts for the Districts of Jammu and Srinagar and Principal
District Courts of all other districts of Union Territory of Jammu
and Kashmir as Commercial Courts within their respective
jurisdiction. Vide the same notification, the pecuniary value of
jurisdiction i.e. specified value of the Commercial Courts has been
fixed at Rs.3.00 lacs and above. It is to be noted here that in terms
of Section 20 of the Civil Courts Act, the original jurisdiction of a
District Judge is unlimited and in view of the Notification S.O.47
dated 4th February, 2020, the Commercial Courts designated by the
Government can entertain and decide arbitration proceedings
relating to disputes of any value beyond Rs.3.00 lacs. Thus,
arbitration proceedings relating to commercial disputes of the
specified value can be entertained and disposed of by the respective
Commercial Courts designated in the UT of J&K.
25) That takes us to the fate of arbitration proceedings relating to
commercial disputes filed on the original side of the High Court. In
this regard, Section 4 of the Commercial Courts Act, which provides
for constitution of the Commercial Division of the High Court,
needs to be noticed. It reads as under:
"4. Constitution of Commercial Division of High
Court.--(1) In all High Courts, having ordinary original
civil jurisdiction, the Chief Justice of the High Court may,
by order, constitute Commercial Division having one or
more Benches consisting of a single Judge for the
purpose of exercising the jurisdiction and powers
conferred on it under this Act.
(2) The Chief Justice of the High Court shall nominate
such Judges of the High Court who have experience in
dealing with commercial disputes to be Judges of the
Commercial Division."
26) From a perusal of the aforesaid provision, it is clear that in
High Courts having ordinary original civil jurisdiction, the Chief
Justice of the High Court may, by order, constitute Commercial
Division consisting of a Single Judge for the purpose of exercising
the jurisdiction and powers conferred under the Act.
27) While Hon'ble the Chief Justice of the High Court of Jammu
& Kashmir and Ladakh has, vide Order No.548 of 2024/RG dated
9th May, 2024, constituted Commercial Appellate Division in terms
of Section 5 of the Commercial Courts Act in both wings of the High
Court of Jammu & Kashmir and Ladakh, Commercial Division of
the High Court in terms of Section 4 of the Commercial Courts Act
has not been constituted in any wing of the High Court so far. In
the absence of an order relating to constitution of Commercial
Division of the High Court, the arbitration matters relating to
commercial disputes of specified value filed before the High Court
cannot be decided by the High Court in exercise of its original civil
jurisdiction after coming into force of the Commercial Courts Act.
Section 10 of the Commercial Courts Act clearly vests jurisdiction
to hear such matters upon the Commercial Division.
28) For the foregoing discussion, the answer to issue No.(II)
would be that unless a Commercial Division of the High Court is
constituted, the arbitration proceedings relating to commercial
disputes of specified value filed on original side of the High Court,
cannot be heard and decided.
29) In the face of the answer to the aforesaid two issues, the next
question that needs to be determined is as to what should be the
way formed for dealing with the arbitration proceedings relation to
commercial disputes that have been filed on the original side of this
High Court. In this behalf provisions contained in Sections 7 and 15
of the Commercial Courts Act are required to be noticed:
7. Jurisdiction of Commercial Divisions of High
Courts.--All suits and applications relating to
commercial disputes of a Specified Value filed in a High
Court having ordinary original civil jurisdiction shall be
heard and disposed of by the Commercial Division of
that High Court:
Provided that all suits and applications relating to
commercial disputes, stipulated by an Act to lie in a
court not inferior to a District Court, and filed or
pending on the original side of the High Court, shall be
heard and disposed of by the Commercial Division of
the High Court:
Provided further that all suits and applications
transferred to the High Court by virtue of sub-section
(4) of section 22 of the Designs Act, 2000 (16 of 2000)
or section 104 of the Patents Act, 1970 (39 of 1970)
shall be heard and disposed of by the Commercial
Division of the High Court in all the areas over which the
High Court exercises ordinary original civil jurisdiction.
xxx xxx xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx xxx xxx
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
under 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 3[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 statement 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.
30) From a perusal of Section 7 quoted above, it comes to the fore
that all suits and applications relating to commercial disputes of a
specified value filed in the High Court having ordinary original
civil jurisdiction have to be heard and decided by the Commercial
Division of the High Court. As per Section 15(1) quoted above, upon
constitution of a Commercial Division, the suits and applications
including arbitration proceedings relating to commercial dispute of
a specified value pending in a High Court have to be transferred to
the Commercial Division.
31) From a careful analysis of the aforesaid provisions contained
in Commercial Courts Act, 2015, it becomes clear that constitution
of a Commercial Division in a High Court, which is vested with
ordinary original civil jurisdiction, is an absolute imperative to deal
with the cases involving commercial disputes of specified value that
may have been filed in the said High Court. Such cases have
necessarily to be transferred to a Commercial Division constituted
in terms of section 4 of the Act.
32) In view of what has been discussed above, the Registrar
General is directed to place the matter before Hon'ble the Chief
Justice for consideration of his Lordship so that an appropriate
decision is taken with regard to constitution of a Commercial
Division of the High Court for disposal of arbitration proceedings
relating to commercial disputes of specified value pending on the
original side of this Court. It is also suggested that feasibility of
fixing a different higher specified value for entertaining
proceedings relating to commercial disputes by the Court in its
ordinary original civil jurisdiction be also explored.
33) Since a large number of arbitration proceedings relating to
commercial disputes are pending in the High Court which, in the
absence of a Commercial Division, cannot proceed further, as such,
the Registrar General is requested to take urgent steps in the
34) Consideration of the instant petitions is deferred for awaiting
constitution of the Commercial Division. List on 17.10.2024.
(SANJAY DHAR)
JUDGE
Srinagar
22.08.2024
"Bhat Altaf-Secy"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
