The State Highways Authority Of ... vs Rcm Infrastructure Limited
2022 Latest Caselaw 3295 Jhar

                                1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 C.M.P. No. 23 of 2022
                           With
                 C.M.P. No. 24 of 2022

The State Highways Authority of Jharkhand through its Member
Technical namely, Abinash Kumar Dipak, Ranchi ... Petitioner
                                                        (In both cases)
                             Versus
RCM Infrastructure Limited, Banjara Hills, Hyderabad, through the
Managing Director                        ...    ...    Opposite Party
                                                        (In both cases)

CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Ashutosh Anand, Advocate Mr. Sharad Kaushal, Advocate Ms. Rishi Bharati, Advocate For the Opposite Party : Mr. Prashant Pallav, Advocate Ms. Shivani Jaluka, Advocate Mr. Parth Jalan, Advocate

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Order No. 10 Dated: 22.08.2022

Since both the civil miscellaneous petitions involve similar issue, the same are tagged and taken up together with the consent of learned counsel for the parties.

2. C.M.P. No. 23 of 2022 has been filed for quashing the order dated 28.02.2020 passed by the A.J.C XIII-cum-Presiding Officer, Commercial Court, Ranchi in Commercial Case No. 09/2019, whereby the case filed by the petitioner under Section 14(1)(a) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act, 1996") for termination of the mandate of the Arbitral Tribunal has been dismissed as infructuous in view of publication of the award.

3. C.M.P No. 24 of 2022 has been filed for quashing the order dated 24.02.2020 passed by the A.J.C XIII-cum-Presiding Officer, Commercial Court, Ranchi in Commercial Revocation Case No. 10/2019 filed by the petitioner under Section 34 of the Act, 1996 challenging the award dated 10.06.2019 published by the Arbitral Tribunal, whereby the petitioner has been directed to make payment of 75% of the awarded amount for admitting the said case.

4. Mr. Prashant Pallav, learned counsel for the opposite party,

while producing a copy of order dated 05.07.2022 passed by learned Co-ordinate Bench of this Court in the case of "M/s Deepak Printers & Publishers Vs. State Project Director, Jharkhand Education Project Council, Ranchi" (Civil Revision No. 24 of 2020 with Civil Revision No. 25 of 2020), submits that the present petitions filed under Article 227 of the Constitution of India challenging the orders passed by Commercial Court, Ranchi will fall within the domain of the Commercial Appellate Division, the jurisdiction of which is exercised by learned Division Bench of this Court.

5. I have perused the said order wherein the questions framed by the learned Bench are as under:

(i) Whether a revision application under Section 115 of the Code of Civil Procedure is maintainable against the orders dated 19.08.2019 passed by the Presiding Officer, Commercial Court, Ranchi in respective Misc. Civil Applications OR an application under Article 227 of the Constitution of India is the appropriate remedy?

(ii) Whether the revision application OR an application under Article 227 of the Constitution of India challenging an order passed by a Presiding Officer, Commercial Court can be heard by a Single Judge of this Court or the same is to be heard by the Commercial Appellate Division of this Court which consists of a Division Bench?

6. Learned Co-ordinate Bench after taking into consideration the relevant provisions of the Commercial Courts Act, 2015 (hereinafter referred to as "the Act, 2015") has held as follows:

16. I have already referred to Section 5 of the 2015 Act, which provides for constitution of Commercial Appellate Division of the High Court and the notification dated 24th June, 2015 issued by the High Court in exercise of powers vested under Section 5(1) of the 2015 Act. Thus, there is a Commercial Appellate Division in this High Court. As per the provisions of the 2015 Act, Commercial Appellate Division will be a Division Bench, which shall exercise the jurisdiction and powers conferred on it by the Act. The intent of the legislature is that the challenge thrown to any order passed by the Commercial Courts, needs to be heard before the High Court, and that too by a Division Bench and not by a Single Bench. It is the Division Bench of the High Court, which shall exercise the jurisdiction and powers conferred to decide the challenge against the order of the Commercial Courts.

Though these are Civil Revision Applications, then also it cannot be lost sight that in fact the challenge thrown in these applications are to the orders passed by the Presiding Officer, Commercial Court, Ranchi and this challenge is to be heard by the High Court. Moreover the Commercial Court, whose orders are under challenge, is in the rank of a District Judge. Keeping in view the intention of the legislature, this Court holds that all challenges thrown, be it in form of a revision under Section 115 of the Code of Civil Procedure or an application under Article 227 of the Constitution of India (though not specifically provided for in the Act), must be heard and decided in terms of Section 5 of the 2015 Act by the Commercial Appellate Division of the High Court, which a Division Bench of the High Court. Section 5 of the 2015 Act does not limit or restrict the Commercial Appellate Division to hear only an appeal filed under Section 13 of the 2015 Act, but, according to this Court the Commercial Appellate Division only has power and jurisdiction to hear the challenge thrown to any order passed by the Commercial Court at the level of District Judge, exercising ordinary civil jurisdiction, be under whatever nomenclature or under whatever provision of law, the same is filed. Interpretation of Section 8 of the 2015 Act cannot be so narrow to only include Appeal under Section 13 of the 2015 Act. Such narrow interpretation of Section 8 will frustrate the intention of the Act. In the cases in hand the impugned orders have been passed by the Commercial Courts at the level of District Judge and such orders can only be challenged before this High Court.

17. A Civil Revision Application under section 115 of the Code of Civil Procedure, 1908 or an application under Article 227 of the Constitution of India, in terms of High Court of Jharkhand Rules, is placed before a Single Judge, but, considering the specific intention of the legislature, as gathered from Section 5 of the 2015 Act, I hold that any order passed by the Commercial Courts and challenged before the High Court should be heard by the Commercial Appellate Division of this Court.

18. The question whether the impugned order is interlocutory or not and whether revision application is maintainable or an application under Article 227 of the Constitution of India is maintainable also then will fall within the domain of the Commercial Appellate Division of this Court, which is a Division Bench and this Court will have no jurisdiction to decide the said issue also.

7. Learned Co-ordinate Bench has held in the aforesaid order that all the challenges thrown in the form of a revision under Section 115 of the Code of Civil Procedure or an application under Article 227

of the Constitution of India must be heard and decided in terms with Section 5 of the Act, 2015 by the Commercial Appellate Division of the High Court which is a Division Bench.

8. The Act, 2015 is a special statute enacted for constitution of Commercial Courts, Commercial Division and Commercial Appellate Division for adjudicating commercial disputes of specified value and for the matters connected therewith or incidental thereto. Section 3 of the Act, 2015 states about constitution of the Commercial Courts at district level by the State Government with consultation of the concerned High Court provided that with respect to the High Courts having ordinary civil jurisdiction, the State Government may after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level. Section 4 of the Act, 2015 states about constitution of Commercial Division having one or more Benches consisting of a Single Judge in all High Courts having ordinary original civil jurisdiction by order of the Chief Justice of the concerned High Court. Section 5 of the Act, 2015 states about constitution of Commercial Appellate Division having one or more Division Benches in all High Courts by order of the Chief Justice of the concerned High Court.

9. Here, it would be appropriate to refer some of the relevant provisions of the Act, 2015 which are as under:

5. Constitution of Commercial Appellate Division.-

(1) After issuing notification under subsection (1) of section 3 or order under sub-section (1) of section 4, the Chief Justice of the concerned High Court shall, by order, constitute Commercial Appellate Division having one or more Division Benches for the purpose of exercising the jurisdiction and powers conferred on it by the 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 Appellate Division.

13. Appeals from decrees of Commercial Courts and Commercial Divisions.-

(1) Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order.

(1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order:

Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996). (2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act.

10. Thus, there is provision for constitution of Commercial Appellate Division having one or more Division Benches in the High Court which shall hear appeal against the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, against the Commercial Division of a High Court within a period of sixty days from the date of the judgment or order. Thus, the Commercial Appellate Division of a High Court is an appellate court to hear appeal under the Act, 2015.

11. Article 227 of the Constitution of India confers power of superintendence of the High Court over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. The jurisdiction vested in the High Court under Article 227 is a supervisory jurisdiction. The main object of this Article is to have proper administrative and judicial control by the High Court on the administration of justice within its territory. The High Court's power of superintendence under Article 227 of the Constitution of India thus cannot be said to have been curtailed by any statute.

12. The Hon'ble Supreme Court in the case of "Shalini Shyam Shetty Vs. Rajendra Shankar Patil" reported in (2010) 8 SCC 329 has held as under:

49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the

Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh [AIR 1954 SC 215] and the principles in Waryam Singh [AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh [AIR 1954 SC 215] , followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".

(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article

227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo-motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality.

13. In the case of "State through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru & Ors." reported in (2003) 6 SCC 641, the Hon'ble Supreme Court has held thus:

17. In the case of State of Gujarat Vs. Vakhatsinghji Vajesinghji Vaghela [AIR 1968 SC 1481] it is held that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It is held that this jurisdiction cannot be limited or fettered by any act of the State Legislature. It is held that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of the authority and to seeing that they obey the law.

14. I have also perused a judgment of learned Division Bench of Delhi High Court wherein two petitions were filed under Article 227 of the Constitution of India which were initially listed before learned Single Judge, however, subsequently the same was transferred to the Commercial Appellate Division following the judgment rendered in FAO No. 232 of 2020 titled "Delhi Tourism and Transportation Development Corporation Vs. Swadeshi Civil Infrastructure Pvt. Ltd." Learned Division Bench formulated the following questions:

(i) Whether after coming into force of the Commercial Courts Act, 2015, a petition under Article 227 of the Constitution of India lies with respect to non- appealable orders of the Commercial Courts.

(ii) if the answer to the above is in the affirmative, whether the said petition is to be considered by a Single Judge of this Court or, on a parity of the jurisdiction for hearing appeals being of a Commercial Division (sic for Commercial Appellate Division) of this Court, by a Commercial Division (sic for Commercial Appellate Division) of this Court.

15. Learned Division Bench answered the question no.(i) by holding that a petition under Article 227 of the Constitution of India filed in the High Court with respect to the orders of Commercial Courts at the level of the District Judge is maintainable and the jurisdiction and power of the High Court has not been and could not have been affected in any manner whatsoever by Section 8 of the Act, 2015. According to the learned Bench, the senior counsel for the respondent in CM (M) No. 132/2021 had rightly contended that the remedy under Article 227 of the Constitution of India being de hors the Commercial Courts Act, would not be governed and guided by the Commercial Courts Act and would be governed by the roster

allocation of the High Court. It was further held that the petitions filed under Article 227 of the Constitution of India arising from proceedings in commercial suits at the level of the District Judge would also be heard by the Bench empowered under the roster to hear such petitions which as per the current roster was the Bench of a Single Judge of the said Court. It was also held that of course, it is open to Hon'ble the Chief Justice in his discretion to allocate the matter of hearing of petitions under Article 227 emanating from commercial suits at the level of the District Judge, to any other Bench including a Division Bench. Moreover, the jurisdiction under Article 227 is to be exercised very sparingly and more sparingly with respect to the orders passed in commercial suits which are revisable under the CPC in which remedy has been taken away by a subsequent legislation i.e., the Commercial Courts Act ensuring that such exercise of jurisdiction by the High Court does not negate the legislative intent and purpose behind the Commercial Courts Act and does not come in the way of expeditious disposal of commercial suits.

16. Hence, I respectfully differ with the view expressed by learned Co-ordinate Bench in the case of "M/s Deepak Printers & Publishers" (supra) to the extent of observing that Commercial Appellate Division shall also hear and decide any writ petition filed under section 227 of the Constitution of India. The Commercial Appellate Division is a creation of statute for the purpose of hearing appeal preferred under Section 13(1) of the Act, 2015 whereas the power under Article 227 is the power of superintendence conferred to the High Court by the Constitution of India which cannot be guided by a statute. The High Court of Jharkhand Rules, 2001 under rule 33(xi) provides that all writ petitions under Article 226 or 227 of the Constitution except those provided to be heard by the Division Bench, shall be heard and disposed of by the Single Judge. No doubt, by amending the High Court Rules, the Hon'ble Chief Justice is empowered to allocate the matters relating to commercial courts filed under Article 227 to learned Division Bench of High Court and in that case, the learned Division Bench may exercise the powers under Article 227 of the Constitution. However, exercise of powers under

Article 227 and appellate power under Commercial Court Act are entirely different. In view of Section 5 of the Act, 2015, the Chief Justice of the concerned High Court has to constitute a Commercial Appellate Division having one or more Division Benches for the purpose of exercising the jurisdiction and powers conferred on it by the said Act. Nevertheless, it does not mean that the said Commercial Appellate Division will also entertain the petition filed under Article 227 of the Constitution of India. While exercising power under Article 227 of the Constitution, the High Court is guided by the scope of powers conferred under the said Article. On the other hand, the exercise of appellate power by the Division Bench of High Court constituted as a Commercial Appellate Division is governed by the Act, 2015.

17. Under the aforesaid facts and circumstance, the following question is formulated to be answered by learned Division Bench of this Court:

"Whether or not a petition filed under Article 227 of the Constitution of India will lie in the jurisdiction of Commercial Appellate Division of this Court which has been constituted to hear appeal under the Commercial Courts Act, 2015?"

18. The Registry is directed to place these cases before Hon'ble the Chief Justice so as to assign the present matters to learned Division Bench of this Court for taking appropriate decision on the aforesaid question formulated by this Court.

(Rajesh Shankar, J.) Manish