Jharkhand High Court
M/S Deepak Printers & Publishers vs State Project Director on 5 July, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Revision No.24 of 2020
----
M/s Deepak Printers & Publishers, through
its Proprietor Sri Deepak Kumar Agarwal ... Petitioner
-versus-
State Project Director, Jharkhand Education
Project Council, Ranchi ... Opposite Party
----
WITH
Civil Revision No.25 of 2020
----
M/s Raj Enterprises, through its
Proprietor Sri Hari Mohan Agarwal ... Petitioner
-versus-
State Project Director, Jharkhand Education
Project Council, Ranchi ... Opposite Party
----
CORAM : HON'BLE MR. JUSTICE ANANDA SEN
----
For the Petitioners : Mr. Sunil Murarka, Advocate
Mr. Pandey Neeraj Rai, Advocate
Mr. Pradyumna Poddar, Advocate
For the Opp. Parties : Mr. Krishna Murari, Advocate
Mr. Raj Vardhan, Advocate
----
ORDER
RESERVED ON 26.04.2022 PRONOUNCED ON 05.07.2022
These two revision applications have been filed by the petitioners,
one being Civil Revision No.24 of 2020 challenging the order dated
19.08.2019 passed by the Presiding Officer, Commercial Court, Ranchi in
Misc. Civil Application No.236 of 2018, arising out of Commercial (Execution)
Case No.06 of 2017, whereby the objection filed under Section 47 of the Code
of Civil Procedure by the Judgment Debtor has been allowed and the award
dated 11.07.2016 published by the MSME Facilitation Council, Uttarakhand in
Case No.108 has been declared as null and void and resultantly the Execution
Case No.06 of 2017 has been dismissed. The second one being Civil Revision
No.25 of 2020, challenging the order dated 19.08.2019 passed by the
Presiding Officer, Commercial Court, Ranchi in Misc. Civil Application No.276
of 2018, arising out of Commercial (Execution) Case No.07 of 2017, whereby
the objection filed under Section 47 of the Code of Civil Procedure by the
Judgment Debtor has been allowed and the award dated 11.07.2016
published by the MSME Facilitation Council, Uttarakhand in Case No.109 has
been declared as null and void and resultantly the Execution Case No.07 of
2017 has been dismissed.
Since the issue involved in both these Civil Revision Applications
is same, both these Civil Revision Applications are taken up together and a
common order is pronounced.
2. The Presiding Officer, Commercial Court, Ranchi, vide the
impugned orders has held that both the awards are hit by Section 21 of the
MSMED Act as non-compliance of the aforesaid provision of the Act make the
awards null and void and non-executable, thus, the objection taken in the
Execution Case under Section 47 of the Code of Civil Procedure was allowed
by the Presiding Officer, Commercial Court, Ranchi, and thereafter, it was held
that the award cannot be executed. Thus, the respective Execution Cases
which were filed for execution of the respective awards dated 11.07.2016
passed by the MSME Facilitation Council, Uttarakhand were dismissed as not
maintainable.
3. It is pertinent to note at this stage that the same orders dated
19.08.2019 was challenged by the petitioners in Commercial Appeal No.13 of
2019 and Commercial Appeal No. 14 of 2019 before the Commercial Appellate
Division of this Court. During pendency of these appeals, I.A. No.5583 of 2020
and I.A. No. 5584 of 2020 were filed seeking to make some corrections in the
memo of appeals and also a prayer was made to withdraw the appeals with a
liberty to file Civil Revision Applications under Section 115 of the Code of Civil
Procedure, 1908. Prayer for withdrawal was made in the light of the judgment
passed by the Hon'ble Supreme Court in the case of Kandla Exports
Corporation & Another versus OCI Corporation & Another reported in
(2018) 14 SCC 715 on the ground that no appeal lies against the impugned
order.
4. Respondent in the said appeals, who is opposite party herein,
also questioned the maintainability of the appeal in view of the judgment of the
Hon'ble Supreme Court in the case of Kandla Exports Corporation (supra).
Considering the submission of the parties, the Commercial Appellate Division
of this Court allowed withdrawal of the appeal with a liberty to pursue any
remedy as is permissible under law against the impugned order. The appeals
were dismissed as withdrawn. Thereafter the present civil revision applications
were filed under Section 115 of the Code of Civil Procedure, 1908.
5. Learned counsel appearing on behalf of the opposite party had
raised a preliminary objection about the maintainability of these revision
applications. He submitted that these revision applications under Section 115
of the Code of Civil Procedure are not maintainable and at best if any remedy
is available to the petitioners, the same is one under Article 227 of the
Constitution of India. He refers and heavily relies upon Section 8 of the
Commercial Courts Commercial Division and Commercial Appellate Division of
High Courts Act, 2015.
6. Learned counsel appearing for the petitioners objected to such
preliminary objection and submitted that the order being final in nature, the
same are amenable to revisional jurisdiction under Section 115 of the Code of
Civil Procedure. He also relies upon Section 8 of the Commercial Courts
Commercial Division and Commercial Appellate Division of High Courts Act,
2015 and submits that the bar is against an interlocutory order and not against
a final order.
7. After hearing the counsel for the parties on the preliminary issue,
the questions, which fall for consideration at this stage are as follows:-
(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?
8. For speedy disposal of commercial disputes of specified value
and the matters connected therewith or incidental thereto, the Parliament of
India promulgated the Commercial Courts Commercial Division and
Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred
to as "the 2015 Act"). The 2015 Act was promulgated, keeping in view of the
global economic environment, which became increasingly competitive and it
was necessary for India to attract business at international level and improve
its ranking in the World Bank's "Doing Business Report". It was felt that there
was necessity to revamp the dispute resolution mechanism of the country so
far as it relates to commercial transactions and commercial activities. To
create a positive image amongst the investors about the strong and
responsive Indian legal system, the Commercial Courts, Commercial Division
and Commercial Appellate Division of High Courts Act, 2015 was promulgated.
One of the objectives of the 2015 Act was also to constitute Commercial
Appellate Division in all the High Courts to hear the appeals against the orders
of the Commercial Courts and the orders of the Commercial Division of the
High Court. An amendment Bill of 2018 was brought in to replace the
Ordinance of 2018. One amongst other objectives of the said Bill was to
constitute Commercial Courts at District Judge level with pecuniary jurisdiction
of the District Courts and also to enable the State Government to designate
Commercial Appellate Courts at District Level and specify the pecuniary value.
The said Act was amended by the Amendment Act 28 of 2018, which received
the ascent of the Hon'ble President of India on 20.08.2018 and published in
the Gazette of India on 21.08.2018. Thus, the Commercial Courts, Commercial
Division and Commercial Appellate Division of High Courts (Amendment) Act,
2018 saw the light of the day.
9. Some of the provisions of the 2015 Act needs to be considered
herein, which are enumerated hereinafter:-
2. Definitions. - (1) In this Act, unless the context otherwise
requires, -
(a) "Commercial Appellate Courts" means the Commercial
Appellate Courts designated under section 3-A;
(aa) "Commercial Appellate Division" means the Commercial
Appellate Division in a High Court constituted under sub-section
(1) of section 5;
(b) "Commercial Court" means the Commercial Court
constituted under sub-section (1) of section 3;
(c) ............
(d) "Commercial Division" means the Commercial Division in a
High Court constituted under sub-section (1) of section 4;
Chapter II of the 2015 Act provides for Commercial Courts,
Commercial Appellate Courts, Commercial Divisions and Commercial
Appellate Divisions.
Section 3 in Chapter II provides for constitution of Commercial
Courts. Sub Section (1) of Section 3 provides for constitution of Commercial
Courts at District Level. Section 3-A, which was inserted by the Act 28 of 2018,
provides to designate, by notification in the manner as prescribed, such
number of Commercial Appellate Courts at District Judge level, except the
territories over which the High Courts have ordinary original civil jurisdiction.
Section 4 of the 2015 Act provides for Commercial Division of
High Courts. As per Section 4(1), the High Courts, having ordinary original civil
jurisdiction will constitute a 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 2015 Act. Section 4(2) provides for nomination of
a Judge of the High Court to be Judge of the Commercial Division.
Section 5 of the 2015 Act provides for constitution of Commercial
Appellate Division. It is necessary to quote Section 5 herein, which reads as
under:-
5. Constitution of Commercial Appellate Division. - (1) After
issuing notification under sub-section (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.
From perusal of the provisions of Section 5 of the 2015 Act, it is
quite clear that there has to be Commercial Appellate Division in the High
Court, having one or more Division Benches for the purpose of exercising the
jurisdiction conferred upon it by the Act.
10. In compliance with the aforesaid provision of law, the High Court
of Jharkhand, Ranchi vide Notification No. 7/2016/R&S dated 29th June, 2016
constituted the Commercial Appellate Division of the High Court of Jharkhand
to deal with the appeals from the orders/judgments passed by the Commercial
Courts. It is necessary to quote the contents of the notification, which reads as
under:-
HIGH COURT OF JHARKHAND, RANCHI
NOTIFICATION
th
No.07/2016/R&S Dated, Ranchi the 29 June, 2016
In exercise of powers vested in Hon'ble the Chief Justice
under Section 5(1) of the Commercial Courts, Commercial
Division and Commercial Appellate Division of High Court Act,
2015, Hon'ble the Chief Justice has been pleased to constitute
Commercial Appellate Division in High Court of Jharkhand to
deal with appeal(s) from the order(s)/judgment(s) passed by the
Commercial Courts.
By Order,
Sd/-
Registrar General
It is pertinent to mention herein that the notification was supplied
by the counsel for the parties.
11. The preliminary ground, which has been taken by the respondents
is that in view of the bar under Section 8 of the 2015 Act, these Civil Revision
Applications are not maintainable. Section 8 of the 2015 Act reads as under:-
8. Bar against revision application or petition against an
interlocutory order. - Notwithstanding anything contained in any
other law for the time being in force, no civil revision application
or petition shall be entertained against any interlocutory order of
a Commercial Court, including an order on the issue of
jurisdiction, and any such challenge, subject to the provisions of
section 13, shall be raised only in an appeal against the decree
of the Commercial Court.
12. From perusal of aforesaid Section, it is apparent that no civil
revision application or petition shall be entertained against any interlocutory
order of the Commercial Courts including an order on the adjudication and any
such challenge subject to the provision of Section 13 of the 2015 Act.
13. Counsel for the petitioner contended that the nature of order,
which is challenged in these revision applications are final orders and not
interlocutory orders, thus, these revision applications are maintainable.
Further, it was his contention that a party cannot be left remedyless as
admittedly, against the impugned order an appeal is not maintainable and if it
is held that a revision application under Section 8 is also barred, then the
petitioners will be remedyless.
14. Counsel for the opposite party contended that the petitioners
cannot be said to be remedyless, as they can file an application under Article
227 of the Constitution of India also, but since these Civil Revision
Applications are against final orders, the bar under Section 8 of the 2015 Act is
not applicable.
15. The question, as to whether the impugned order is an
interlocutory order or final order and whether the bar under Section 8 of the
2015 Act can be applied or not and whether the petitioners can avail the
remedy under Article 227 of the Constitution of India or under Section 115 of
the Code of Civil Procedure has to be decided. This Court is of the view that
before the aforesaid questions are decided, it is to be seen whether a Single
Judge of this Court can decide these applications or any issues including the
preliminary point which has been raised.
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.
19. Thus, in view of what has been held above, let these Civil
Revision Applications be placed before the Hon'ble Chief Justice for assigning
the same to the Commercial Appellate Division of this Court and the Registry
is also directed to take steps to amend the High Court of Jharkhand Rules in
the light of this order, especially Chapter XVI, Rule 33(iii)(b) and Rule 34 under
Chapter VI of the High Court of Jharkhand Rules. Registrar General of this
Court is also directed to circulate a copy of this order to the Civil Stamp Report
Section and other concerned Sections of this Court.
(Ananda Sen, J.)
Kumar/Cp-02
