THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Appellate Jurisdiction)
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D. B. : HON'BLE MR. JUSTICE BISWANATH SOMADDER, CHIEF JUSTICE
HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Arb. A. No. 03 of 2022
Chhabil Das Agarwal,
S/o late Deepchand Agarwal,
5/1 Sirwani Road,
Singtam, P.O. Singtam,
East Sikkim - 737134. .... Appellant
versus
1. State of Sikkim,
Through its PCE-cum-Secretary,
Energy & Power Department,
Government of Sikkim,
Gangtok, East Sikkim - 737101.
2. Energy & Power Department,
Through its Chief Engineer (North),
Government of Sikkim,
Gangtok, East Sikkim - 737101.
3. Energy & Power Department,
Through its Superintending Engineer (North),
Government of Sikkim,
Gangtok, East Sikkim - 737101. .... Respondents
Appeal under section 37(1)(c) of the Arbitration and Conciliation Act,
1996 (as amended) read with section 13 of the Commercial Courts
Act, 2015
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Appearance:
Mr. Rohan Batra, Advocate with Mr. Dhruv Sethi and Mr. Hemlal
Manger, Advocates for the Appellant.
Mr. Sudesh Joshi, Additional Advocate General with Ms Tamanna
Chettri, Advocate and Mr. Sujan Sunwar, Assistant Government
Advocate, for the Respondents.
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and
Arb. A. No.03 of 2022
Chhabil Dass Agarwal vs. State of Sikkim & Ors. 2
&
Arb. A. No.04 of 2022
Chhabil Dass Agarwal vs. State of Sikkim & Ors.
Arb. A. No. 04 of 2022
Chhabil Das Agarwal,
S/o late Deepchand Agarwal,
5/1 Sirwani Road,
Singtam, P.O. Singtam,
East Sikkim - 737134. .... Appellant
versus
1. State of Sikkim,
Through its PCE-cum-Secretary,
Energy & Power Department,
Government of Sikkim,
Gangtok, East Sikkim - 737101.
2. Energy & Power Department,
Through its Chief Engineer (North),
Government of Sikkim,
Gangtok, East Sikkim - 737101.
3. Energy & Power Department,
Through its Superintending Engineer (North),
Government of Sikkim,
Gangtok, East Sikkim - 737101. .... Respondents
Appeal under section 37(1)(c) of the Arbitration and Conciliation Act,
1996 (as amended) read with section 13 of the Commercial Courts
Act, 2015
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Appearance:
Mr. Rohan Batra, Advocate with Mr. Dhruv Sethi and Mr. Hemlal
Manger, Advocates for the Appellant.
Mr. Sudesh Joshi, Additional Advocate General with Ms Tamanna
Chettri, Advocate and Mr. Sujan Sunwar, Assistant Government
Advocate, for the Respondents.
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Date of hearing : 30.11.2022
JUDGMENT
14.12.2022
Bhaskar Raj Pradhan, J.
1. This judgment shall dispose of two related
appeals under section 37(1)(c) of the Arbitration &
Conciliation Act, 1996 (the 1996 Act). Arb. A. No. 03 of 2022 Arb. A. No.03 of 2022 Chhabil Dass Agarwal vs. State of Sikkim & Ors. 3 & Arb. A. No.04 of 2022 Chhabil Dass Agarwal vs. State of Sikkim & Ors.
is against the impugned orders dated 8.9.2022 passed by
the learned Commercial Court in Commercial Misc. Case No.
02 of 2022 and Commercial Suit No. 03 of 2022 praying for
condonation of delay in filing the application under section
34 of the 1996 Act and to restore Commercial Suit No. 3 of
2022 for adjudication. Arb. A. No. 04 of 2022 is against the
impugned orders dated 8.09.2022 passed by the learned
Commercial Court in Commercial Misc. Case No. 01 of 2022
and Commercial Suit No. 02 of 2022 praying for
condonation of delay in filing the application under section
34 of the 1996 Act and to restore Commercial Suit No. 02 of
2022 for adjudication.
2. The admitted facts necessary for the disposal of
the two appeals are set out hereunder. On 8.11.2021, the
learned Arbitrator passed Arbitral Awards which the
appellant is partially aggrieved of. On 7.12.2021, the
appellant filed applications before the learned Arbitrator
under section 33(1) and (4) of the 1996 Act to seek
correction of the amount awarded in the Award. The learned
Arbitrator passed orders dated 14.4.2022 dismissing the
correction applications filed by the appellant. On
15.08.2022, the appellant preferred the applications under
section 34 of the 1996 Act and since there was delay, the Arb. A. No.03 of 2022 Chhabil Dass Agarwal vs. State of Sikkim & Ors. 4 & Arb. A. No.04 of 2022 Chhabil Dass Agarwal vs. State of Sikkim & Ors.
applications for condonation as well. As stated above these
applications were dismissed by the learned Commercial
Court.
3. Mr. Rohan Batra, learned counsel for the
appellant, made various submissions before us challenging
the impugned orders including the error in computing the
period of delay. However, we find considerable merit in the
preliminary point of maintainability of these appeals raised
by the learned Additional Advocate General and thus
propose to dispose them on the point without examining the
merits of the cases.
4. It was argued that the present appeals were not
maintainable before this Court as under the Commercial
Courts Act, 2015 (the 2015 Act), it would lie before the
Commercial Appellate Court.
5. The applications under section 34 of the 1996 Act
were filed by the appellant on 15.08.2022 before the learned
Commercial Court. The appellant was aggrieved by the
rejection of his correction applications to revise the Arbitral
Awards. Although not argued before us, in the appeals, the
appellant pleaded that in view of notification bearing no.
17/Home/2022 dated 21.02.2022, the applications were Arb. A. No.03 of 2022 Chhabil Dass Agarwal vs. State of Sikkim & Ors. 5 & Arb. A. No.04 of 2022 Chhabil Dass Agarwal vs. State of Sikkim & Ors.
listed before the learned Commercial Court, although in view
of notification no. 16/Home/2022 dated 21.02.2022 and
17/Home/2022 dated 21.02.2022, it ought to have been
heard only by the District Judge since the sum involved was
in excess of the pecuniary jurisdiction of the learned Civil
Judge. It is noticed that on the date of filing of the
applications, i.e., 15.08.2022, notification no.
17/Home/2022 dated 21.02.2022 was applicable which
designated the Court of the Civil Judge (Senior Division) of
all the districts as Commercial Court at the district level for
the purpose of adjudicating commercial disputes within
their respective jurisdiction. Under section 10(3) of the 2015
Act, all applications or appeals arising out of arbitration
under the provisions of the 1996 Act that would ordinarily
lie before any Principal Civil Court of original jurisdiction in
a district (not being a High Court) shall be filed in, heard
and disposed of by the Commercial Court exercising
territorial jurisdiction over such arbitration where such
Commercial Court has been constituted. Therefore, on
15.08.2022, the learned Civil Judge (Senior Division) had
the necessary jurisdiction to adjudicate the applications as
there was no pecuniary limitation prescribed to limit the
jurisdiction of the Commercial Court so constituted vide Arb. A. No.03 of 2022 Chhabil Dass Agarwal vs. State of Sikkim & Ors. 6 & Arb. A. No.04 of 2022 Chhabil Dass Agarwal vs. State of Sikkim & Ors.
notification no. 17/Home/2022 dated 21.02.2022. By
notification no.16/Home/2022 dated 21.02.2022, the Court
of the District Judge of all the districts were designated as
Commercial Appellate Courts. The appeals were filed on
28.10.2022 by which date by virtue of notification no.
16/Home/2022 dated 21.02.2022, the Court of the District
Judge of all the districts had been designated as Commercial
Appellate Courts. The impugned orders are appealable
orders in terms of section 37(1)(c) of the 1996 Act. Section
37 of the 1996 Act provides that an appeal shall lie to the
court authorised by law to hear appeals from original
decrees of the court passing the order, inter alia, refusing to
set aside an arbitral award under section 34. Section 13(1)
of the 2015 Act provides that any person aggrieved by the
judgment and order of a Commercial Court below the level of
a District Judge may appeal to a Commercial Appellate
Court within a period of sixty days from the date of
judgment or order. The Court of the District Judge had
already been constituted as Commercial Appellate Court on
21.02.2022 by notification no. 16/Home/2022. The appeals
against the impugned orders passed by the learned
Commercial Court, which was below the level of the District
Judge, being the Court of the Civil Judge (Senior Division), Arb. A. No.03 of 2022 Chhabil Dass Agarwal vs. State of Sikkim & Ors. 7 & Arb. A. No.04 of 2022 Chhabil Dass Agarwal vs. State of Sikkim & Ors.
ought to have been filed before the Commercial Appellate
Court and not before this Court. Consequently, the appeals
are returned without examining the merits of the case to
enable the appellant to approach the Commercial Appellate
Court which has the necessary jurisdiction to decide them in
accordance with law.
6. The appeals are disposed accordingly. The parties
shall bear their respective costs.
( Bhaskar Raj Pradhan ) ( Biswanath Somadder )
Judge Chief Justice
Approved for reporting : Yes/No
Internet : Yes/No
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