The Government @ State Of Jharkhand ... vs M/S K.S Softnet Solution Private Ltd. ...
2024 Latest Caselaw 1073 Jhar

Jharkhand High Court

The Government @ State Of Jharkhand ... vs M/S K.S Softnet Solution Private Ltd. ... on 5 February, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

                                           C.M.P. No.875 of 2023

                            1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   C.M.P. No.875 of 2023
                            ----
The Government @ State of Jharkhand through Department of
Transport, FFP Building, Ranchi, P.O. Dhurwa, P.S.
Jagannathpur,   District-Ranchi, State-Jharkhand.
                                 ...     ...    Petitioner
                          Versus
M/s K.S Softnet Solution Private Ltd. having its registered office
at 57/58 Mhada Commercial Complex, New Link Road, P.O. &
P.S: Andheri (W), Mumbai-400102 through its authorized
signatory, Subhash Chandra Dash, Son of Late Harishchandra
Dash aged about 57 years, Resident of: Tulsi Bihar, Jalja road,
Siddhamahavir Lane, Puri, P.O. Puri Station Road S.O. P.S.:
Sadar, District: Puri, State-Odisha ...    ...      Opp. Party
                         -------
CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
  HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
                         -------
For the Appellant   : Mr. Sachin Kumar, A.A.G-II
                       Ms. Surabhi, AC to A.A.G.-II
For the Opp. Party  : Mr. Rajendra Krishna, Advocate
                       Mr. Baibhaw Gahlaut, Advocate
                       Mr. Utkarsh Krishna, Advocate
                       Mr. Subhneet Jha, Advocate
                            ------
                    th
Order No. 06/Dated 5 February, 2024

Per Sujit Narayan Prasad, J.

1. The application has been filed under Article 227 of

the Constitution of India challenging the order dated

13.07.2023 passed by the learned Presiding Officer,

Commercial Court, Ranchi, in Commercial Execution Case

No. 02 of 2023.

2. The petition since has been filed under Article 227

of the Constitution of India and hence, the objection has

been raised regarding maintainability of the instant

petition.

3. Mr. Sachin Kumar, learned Additional Advocate

General appearing for the State assisted by Ms. Surabhi

has submitted that the instant petition is well maintainable

on the basis of the following grounds:-

(i) Under the arbitration and conciliation Act, 1996 the

forum of appeal is under Section 37 to invoke the

jurisdiction of the appellate court as per the appellate

order referred herein.

(ii) It has been submitted by referring to the provision of

Section 37 (1) of the Arbitration and Conciliation Act,

1996 which provides three eventualities to invoke the

jurisdiction conferred to this Court under Section 37

of the Arbitration and Conciliation Act, 1996, namely -

(a) Refusing to refer the parties to arbitration

under Section 8;

(b) Granting or refusing to grant any measure

under Section 9;

(c) Setting aside or refusing to set aside an

arbitral award under Section 34.

4. It has been submitted that none of the conditions as

stipulated under Section 37 of the Arbitration and

Conciliation Act, 1996 is available and hence, the appeal

will not lie in view of the provision of Section 37 of the

Arbitration and Conciliation Act, 1996.

5. It has been submitted by referring to the

Commercial Courts Act, 2015 wherein the forum has been

carved out under Chapter IV thereof as under Section 13(1)

and (1-A).

6. Sub-Section (1) of Section 13 confers jurisdiction to

provide a forum to a person aggrieved by the Judgment or

the order of the commercial court below the level of a

District Judge may appeal to the Commercial Appellate

Court within a period of 60 days from the date of Judgment

or order to provide, a forum to person aggrieved by the

Judgment or order of the commercial court at the level of

District Judge exercising original Civil Jurisdiction or, as

the case may be, Commercial Division of the High Court

may appeal to the Commercial Appellate Division of that

High Court within a period of sixty days from the date of

judgment or the order.

7. It has been contented by referring to Section 13 of

the Commercial Courts Act, 2015 that the order said to be

appealable under Section 37 of the Act, 1996, will only be

appealed under Section 13 of the Act, 2015.

8. Since, none of the conditions as numerated under

Section 37 of the Act 1996 is available, hence the appeal

will not lie under Section 13 (1-A) before the Commercial

Appellate Division of the High Court.

9. The submission, therefore, has been made that is

the reason the instant petition has been filed under Article

227 of the Constitution of India. Hence, it cannot be said

that this petition is not maintainable under Article 227 of

the Constitution of India.

10. Per contra, Mr. Baibhaw Gahlaut, learned counsel

appearing for the respondent, has submitted that since

herein the order passed by the Presiding Officer,

Commercial Court, Ranchi has passed an order of

attachment of the property in course of the execution

proceeding being Execution Case No. 02 of 2023 who is at

the level of the District Judge or exercising the Civil

jurisdiction and hence, the appeal will lie under Section

13(1-A) of the Commercial Court Act, 2015.

11. It has further been contended that merely because

none of the conditions as enumerated under Section 37 of

the Act, 1996 is there, as such the petition under Article

227 will be filed even if the same is appealable in view of

the provision of Section 13(1-A) of the Commercial Courts

Act, 2015.

12. As such, the submission has been made that the

instant petition is not maintainable under Article 227 of the

Constitution of India.

13. We have heard the learned counsel for the parties

and appreciated the rival submission made on behalf of the

parties on the issue of maintainability of the instant

petition under Article 227 of the Constitution of India. This

Court before entering into the aforesaid issue on

maintainability deems it fit and proper to refer certain legal

position which has got bearing in presiding the issue of

maintainability of the petition filed under Article 227 of the

Constitution of India.

14. The Article 227, as per the Constitution, confers

power upon the High Court, i.e., the power of the

superintendence, which is the original jurisdiction of High

Court to be exercised under Article 227 of the Constitution

of India.

15. Earlier to conferring power of revisionary

jurisdiction under Article 227 of the Constitution of India

i.e. prior to amendment in the CPC, which has been given

effect to from 01.07.2002, the jurisdiction which is to be

exercised by way of filing revision under Section 115 of the

Code of Civil Procedure. But, subsequent to the

amendment, the power as has been conferred under

Section 115 of the Code of Civil Procedure has been

curtailed so far as it relates to an order passed

interlocutory in nature.

16. The reference of proviso to Section 115 of CPC

needs to be made herein, whereby and whereunder it has

been provided that if a revision has been filed which is

going to affect the very nature of the suit by revival of the

suit, then the revision will lie. But if an order is being

passed by the original Court and the order which has been

passed is having no bearing with the final suits so far as it

relates to closure of the case, then the mechanism has been

carved out to look into that order under revisionary

jurisdiction to be exercised under Article 227 of the

Constitution of India, meaning thereby, the order to be

challenged under Article 227 must be interlocutory in

nature.

17. The "interlocutory" word has although not defined

under the CPC but as per the judicial interpretation

"interlocutory" word has been interpreted by various

pronouncement of the Hon'ble Apex Court wherein it has

been interpreted that such an order which is not closing

the proceeding will be said to be interlocutory in nature.

18. This Court is now proceeding to examine the issue

so far as the applicability of the Acts i.e. Arbitration and

Conciliation Act, 1996 and the Commercial Courts Act,

2015.

19. The Arbitration and Conciliation Act, 1996 confers

two provisions by conferring power to the Civil Court and

the High Court as under Section 34 and Section 37. Thus,

power which is to be exercised by the original jurisdiction of

the Civil Court for the purpose of looking the propriety of

the award is to be exercised under Section 34 of the Code of

Civil Procedure, while the order passed by the Court

exercising the power conferred under Section 34 is to be

appealed before the appellate forum as per the provision

made under Section 37 of the Act, 1996.

20. Section 37 of the Act 1996 starts with the word the

appellate order. The requirement herein is to refer the

aforesaid provision of Section 37 of the Act, 1996, which

reads hereunder as :-

"37. Appealable orders.--(1) Notwithstanding anything contained in any other law for the time being in force, an appeal] shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:--

(a) refusing to refer the parties to arbitration under section 8;

(b) granting or refusing to grant any measure under section 9;

(c) setting aside or refusing to set aside an arbitral award under section 34.

(2) Appeal shall also lie to a court from an order of the arbitral tribunal--

(a) accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or

(b) granting or refusing to grant an interim measure under section (3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or takeaway any right to appeal to the Supreme Court."

21. The order which is statutorily made appealable is

the order passed under the original decree of the Court

refusing to refer the parties to arbitration under section 8,

granting or refusing to grant any measure under section 9

or setting aside or refusing to set aside an arbitral award

under section 34.

22. The Commercial Courts Act, 2015 has been enacted

with the object to provide for the constitution of commercial

courts mainly for the purpose to provide the forum for

speedy disposal of high value commercial disputes. The

purpose to achieve the very object of the high level

commercial dispute was the paramount consideration for

enactment of the Act, 2015 and therefore, the forum has

been carved out under the aforesaid statute under Chapter

IV i.e. Section 13, for ready reference Section 13 is being

referred herein :-

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."

23. Sub-Section 1 of section 13 confers a right to the

aggrieved party if he is aggrieved by the judgment or order

of a Commercial Court below the level of a District Judge he

may appeal to the Commercial Appellate Court while under

Sub Section (1A) a forum has been carved out to the person

aggrieved if he is aggrieved by the judgment and order of

the commercial court at level of District Judge exercising

original civil jurisdiction or, as the case may be,

Commercial Division of the High Court may appeal to the

Commercial Appellate Division of that High Court within

the stipulated period.

24. Sub Section 2 of Section 13 starts from

non-obstante clause by mandating therein that

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. Therefore, Sub-Section 2 of

Section 13 is very explicit and clarifies the provision that

what would be the forum to an aggrieved party as to

whether it is the Letters Patent Appeal or the writ

jurisdiction or any other remedy can be invoked but as per

the aforesaid provision of Sub-Section 2 of Section 13 it has

been provided that 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, meaning thereby, the appeal is to be filed only in

accordance to the provisions of the Commercial Courts Act,

2015.

25. The insertion of Sub-Section 2 of Section 13 is only

for the purpose of achieving the object and intent of the Act

2015, i.e., for achieving the speedy disposal of high stake

commercial matters. Therefore, this court is of the view on

the basis of aforesaid legal position that any dispute arising

out which is commercial in nature, if passed at the level of

District Judge in the capacity of commercial court then the

appeal is to be filed only within the framework of the

Commercial Courts Act, 2015.

26. This Court has referred the statutory mandate as

contained under the Arbitration and Conciliation Act, 1996

as also the Commercial Courts Act, 2015.

27. It is evident from the preamble of the Commercial

Courts Act, 2015 which has been enacted only for the sole

purpose of speedy disposal of the commercial disputes,

which has been taken into consideration by the Hon'ble

Apex Court in the case of Jaycee Housing Private Limited

and Others v. Registrar (general), Orissa High Court,

Cuttack and Others reported in (2023) 1 SCC 549 as also

in the case of Kandla Export Corporation and Another

v. OCI Corporation and Another reported in (2018) 14

SCC 715.

28. The object of the Arbitration and Conciliation Act,

1996 is by way of consolidation of the Arbitration Act, 1940

and subsequent thereto, the enactment of the Commercial

Courts Act, 2015 is for the expeditious disposal of the

commercial disputes of the high stakes.

29. The question of filing a petition under Article 227 of

the Constitution of India or revision under Section 115 of

the C.P.C. if allowed to be remained there, then how the

expeditious disposal will be arrived at in the commercial

disputes and then what will happen to the basic object of

the enactment of the Arbitration and Conciliation Act,

1996, subsequent amendment in the year 2019 and the

enactment of the Commercial Courts Act, 2015, since all

these provisions have been said to be self-contained Code

having the remedy available under the aforesaid statutory

provisions.

30. The further reason of preferring an appeal either

under Section 37 of the Arbitration and Conciliation Act or

Section 50 thereof or Section 13(1) or (1A) of the

Commercial Courts Act, 2015, the appeal will only lie as per

the reference made of order passed therein under Section

37 of the Arbitration and Conciliation Act, 1996 read with

Section 13(1A) of the Commercial Courts Act, 2015.

31. The Hon'ble Apex Court in the case of Kandla

Export Corporation and Another v. OCI Corporation

and Another (Supra) has dealt with the case as to whether

the appeal is maintainable against the order if outside the

reference of the issue referred either under Section 50 or

Section 37 of the Arbitration and Conciliation Act, 1996.

32. The Hon'ble Apex Court, in the aforesaid judgment,

has been pleased to hold at paragraph 14 that the proviso

goes on to state that an appeal shall lie from such orders

passed by the Commercial Division of the High Court that

are specifically enumerated under Order 43 of the Code of

Civil Procedure Code, 1908, and Section 37 of the

Arbitration Act. It will at once be noticed that orders that

are not specifically enumerated under Order 43 CPC would,

therefore, not be appealable, and appeals that are

mentioned in Section 37 of the Arbitration Act alone are

appeals that can be made to the Commercial Appellate

Division of a High Court, for ready reference paragraphs 14

and 15 of the aforesaid judgment are being referred

hereunder as :-

"14. The proviso goes on to state that an appeal shall lie from such orders passed by the Commercial Division of the High Court that are specifically enumerated under Order 43 of the Code of Civil Procedure Code, 1908, and Section 37 of the Arbitration Act. It will at once be noticed that orders that are not specifically enumerated under Order 43 CPC would, therefore, not be appealable, and appeals that are mentioned in Section 37 of the Arbitration Act alone are appeals that can be made to the Commercial Appellate Division of a High Court.

15. Thus, an order which refers parties to arbitration under Section 8, not being appealable under Section 37(1)(a), would not be appealable under Section 13(1) of the Commercial Courts Act. Similarly, an appeal rejecting a plea referred to in sub-sections (2) and (3) of Section 16 of the Arbitration Act would equally not be appealable under Section 37(2)(a) and, therefore, under Section 13(1) of the Commercial Courts Act."

33. The Hon'ble Apex Court in the case of Deep

Industries Limited v. Oil and Natural gas Corporation

Limited and Another reported in (2020) 15 SCC 706 has

considered the maintainability of the petition filed under

Article 227 of the Constitution of India and under Section

115 of the C.P.C.

34. It has been held in the aforesaid judgment that the

order can be assailed by invoking the jurisdiction conferred

under Article 227 of the Constitution of India by filing the

petition before the High Court but such application can

only be entertained if suffers from jurisdictional error which

can be corrected by the High Court in exercise of power

conferred under Article 227 of the Constitution of India,

reference of the consideration of the said issue is available

at paragraph 22 of the said judgment, which is being

quoted and referred hereunder as :-

"22. ... ... ... Even otherwise, entering into the general thicket of disputes between the parties does not behove a court exercising jurisdiction under Article 227, where only jurisdictional errors can be corrected. Therefore to state that the ban order was passed under a General Contract Manual and not Clause 18 of the agreement, besides being incorrect, would also be incorrect for the reason that the General Contract Manual does not mean that such order was issued as an administrative order invoking the executive power, but was only as an order which emanated from the contract itself. Further to state that "serious disputes" as to jurisdiction seem to have cropped up is not the same thing as saying that the Arbitral Tribunal lacked inherent jurisdiction in going into and deciding the Section 17 application. In point of fact, the Arbitral Tribunal was well within its jurisdiction in referring to the contract and the ban order and then applying the law and finally issuing the stay order. Even if it be accepted that the principle laid down by Section 41(e) of the Specific Relief Act was infracted, in that damages could have been granted, as a result of which an injunction ought not to have been issued, is a mere error of law and not an error of jurisdiction, much less an error of inherent jurisdiction going to the root of the matter. Therefore, even otherwise, the High Court judgment cannot be sustained and is set aside."

35. Further, the maintainability of the petition under

Section 115 of the C.P.C. has also been dealt with as under

paragraph 24 by taking into consideration the judgment

rendered by Hon'ble Apex Court in the case of D.L.F.

Housing and Construction Company (P) Ltd., New Delhi

v. Sarup Singh and Others reported in (1969) 3 SCC 807

wherein by considering Clause (a) and (b) of Section 115

along with Clause (c), the words "illegally" and "with

material irregularity" as used in the clause do not cover

either errors of fact or of law; they do not refer to the

decision arrived at but merely to the manner in which it is

reached. It has been held therein that the High Court is not

required to exercise the power under Section 115 of the

C.P.C. due to the limitation imposed as under the provision

of Section 115 of the C.P.,C. and the same can only be

exercised if there is illegality or material irregularity

committed by the learned court, for ready reference

paragraph 24 of the aforesaid judgment is being referred

and quoted hereunder as :-

"24. Mr Rohatgi is also correct in pointing out that the

legislative policy qua the general revisional jurisdiction that is contained by the amendments made to Section 115 CPC should also be kept in mind when the High Courts dispose of petitions filed under Article 227. The legislative policy is that no revision lies if an alternative remedy of appeal is available. Further, even when a revision does lie, it lies only against a final disposal of the entire matter and not against

interlocutory orders. These amendments were considered in Tek Singh v. Shashi Verma [Tek Singh v. Shashi Verma, (2019) 16 SCC 678 : (2020) 2 SCC (Civ) 753] in which this Court adverted to these amendments and then stated: (SCC p. 681, paras 5-6) "5. ... A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders.

6. ... Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In DLF Housing & Construction Co. (P) Ltd. v. Sarup Singh [DLF Housing & Construction Co. (P) Ltd. v. Sarup Singh, (1969) 3 SCC 807] this Court held: (SCC pp. 811-12, para 5) '5. ... The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision

arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal.' (SCR at p. 373)"

36. Thus, in the case of Deep Industries Limited v. Oil

and Natural gas Corporation Limited and Another

(Supra) the issue of maintaining the petition under Article

227 of the Constitution of India has already been laid down

which can only be filed if the order suffers from lack of

jurisdiction.

37. This Court is now proceeding to examine the factual

aspect as to whether the ground for assailing the impugned

order is lack of jurisdiction or based upon the facts for

which the facts of the case are required to be referred

hereunder as :-

The fact of the case herein is that one arbitration

proceeding was initiated by appointment of arbitrator by

this Court by exercise of the power conferred under Section

11(6) of the Arbitration and Conciliation Act, 1996. When

the arbitration proceeding was going on, one interlocutory

application was filed before the learned Arbitrator for

passing of an interim award. The interim award was passed

on 04.11.2022. The said interim award although has been

challenged by invoking the jurisdiction conferred under the

power under Section 34 of the Arbitration and Conciliation

Act, 1996 being Commercial Arbitration Case No. 2 of 2023.

The same is still pending. But there is no ad interim stay in

the said proceeding staying the operation of the interim

award. The respondents also filed exclusion proceeding

before the same Court who is exercising the jurisdiction as

conferred under Section 34 of the Arbitration and

Conciliation Act, 1996.

38. The State has appeared, thereafter, the concerned

learned court, on consideration of the fact, has passed

order on 13.07.2023 by setting a proceeding for execution

of the said interim award and in course thereof, the

following direction has been passed:-

"From the perusal of record, it transpires that a writ of attachment which was filed on 16.06.2023, a report was called for from the Sheristedar of the court. It has been reported that the writ of attachment is in order. It further transpires that Land and buildings and machinery, equipment, vehicles, treasury heads, Bank Accounts and other Assets of the Judgment Debtor situated/located/lying at Department of Transport, Office at FFP Building, P.O. & P.S. Dhurwa, District - Ranchi, Jharkhand.

In view of this, the writ of attachment is ordered to be issued for execution. The Nazir civil Court Ranchi authorized to execute the writ of attachment and attach Land and buildings and machinery, equipment, vehicles, treasury heads, Bank Accounts and other Assets of the Judgment Debtor situated/located/lying at Department of Transport, Office at FFP Building, P.O. & P.S. Dhurwa, District Ranchi, Jharkhand as mentioned in the writ of attachment only at this stage."

39. The State being aggrieved with the said direction

has filed the instant petition under Article 227 of the

Constitution of India. Although, the Coordinate Division

Bench on the very first day has entertained the petition and

has allowed time to file counter affidavit to the instant

application and in the meanwhile, the Commercial

Exclusion Case No. 2 of 2023 has been directed to be kept

in abeyance alongwith the order 13.07.2023 and all

subsequent orders which appears to have been passed

without assigning proper reasons.

40. We are not in any way concerned with the said

order, rather, we are concerned on the basis of the

objection so raised. However, it has vehemently been

argued on behalf of the respondent raising the issue of

maintainability of the instant petition. On the day when the

matter was heard on 31.01.2024 for ready reference, the

aforesaid order is being referred herein which reads as

under :-

"The instant petition has been filed under Article 227 of the Constitution of India assailing the order passed by the Commercial Court, Ranchi in Commercial Revocation Case No.02 of 2023.

An objection has been raised regarding the maintainability of the present petition filed under Article 227 of the Constitution of India by referring the provision of Section 13(1)(a) of the Commercial Courts Act, 2015.

Mr. Sachin Kumar, learned AAG-II appearing for the State has sought for time to address the issue on maintainability of the present petition under Article 227 of the Constitution of India.

Mr. Baibhaw Gahlaut, learned counsel for the respondent has submitted that the instant petition although has been filed on 28.07.2023 and in the garb of pendency of the present petition, the time is being taken before the Executing Court.

He has further submitted that last opportunity has been given by the Executing Court by fixing the date on 08.02.2024, hence, he has prayed that this case may be listed prior to 08.02.2024.

Considering the aforesaid submission, let this matter be listed on 05.02.2024 so that the matter may be heard on the issue of maintainability."

41. This Court has allowed time to the learned State

Counsel to be ready on the issue of maintainability as it

would be evident from the order dated 31.01.2024.

42. The learned Additional Advocate General No.2 has

argued out, as has been referred hereinabove, that the

instant petition under Article 227 of the Constitution of

India will be maintainable.

43. The ground as has been agitated on behalf of the

learned State Counsel has already been referred

hereinabove as also the submission in response on behalf

of the learned counsel appearing for the respondent. The

same is not being repeated herein, since, the ground has

already been referred hereinabove.

44. It is thus evident that the ground of lack of

jurisdiction is not the ground in assailing the impugned

order and hence, in view of the judgment passed by Hon'ble

Apex Court in the case of Deep Industries Limited v. Oil

and Natural gas Corporation Limited and Another

(Supra), the petition under Article 227 of the Constitution

of India is not maintainable.

45. Learned counsel appearing for the petitioner has

placed an order passed by the Division Bench of this Court

in the case of M/s Pioneer Printers through its

Proprietor Ram Kumar Agarwal v. Jharkhand

Education Project Council through its State Project

Director in Commercial Appeal No.03 of 2018.

46. We have gone across the said order and found

therefrom that the issue of maintainability of the appeal

was involved in the said commercial appeal. The Coordinate

Division Bench, by taking into consideration the judgment

rendered by Hon'ble Apex Court in the case of Kandla

Export Corporation and Another v. OCI Corporation

and Another (Supra), has been pleased to hold by taking

note of paragraphs 13 and 14 of the judgment of Hon'ble

Apex Court that the appeal will only lie as per the reference

of the issue made either under Section 37 of the Arbitration

and Conciliation Act, 1996.

47. Since, herein we are not dealing with the issue of

maintainability of the appeal, rather, we are dealing with

the issue of maintainability of petition filed under Article

227 of the Constitution of India, and, as such, the aforesaid

judgment is not applicable in the facts and circumstances

and the issue involved in the instant petition so far as it

relates to the maintainability of the issue.

48. This court, on the basis of the discussion made with

respect to the legal position as referred hereinabove and in

view of the embargo as commanded under Sub-Section (2)

of Section 13 of the Commercial Courts Act, 2015 that the

appeal will lie before the Commercial Division Bench of the

High Court, is of the view that the instant petition is not

maintainable under Article 227 of the Constitution of India

in view of the aforesaid embargo.

49. As such the instant petition is held to be dismissed

as not maintainable.

50. The interim order dated 06.12.2023 is hereby

vacated.

51. It is left open upon the petitioner to search out the

remedy for redressal of the grievance.

52. Accordingly, this Civil Miscellaneous Petition is

disposed of.

(Sujit Narayan Prasad, J.)

(Pradeep Kumar Srivastava, J.)

A.F.R. Birendra/