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Judgment
Kalyan Rai Surana, J
Heard Mr. B. Dutta, learned senior counsel, assisted by Mr. S. Deka, learned counsel for the appellant. Also heard Mr. S. Borthakur and Mr. S.S. Roy, learned counsel for the sole respondent.
2) The appellant had filed an appeal under section 13(1A) of the Commercial Courts Act, 2015 to challenge the order dated 05.12.2024, passed by the learned Additional District Judge No.2, Kamrup (M), Guwahati in Misc. Arbitration (Appeal) No. 9/2024.
3) The respondent herein is the appellant in the said Misc. Arbitration (Appeal) No. 9/2024. The appellant herein was the respondent therein.
4) By the impugned order dated 05.12.2024, the learned Additional District Judge No.2, Kamrup (M), Guwahati (hereinafter referred to as the First Appellate Court) prima facie found the order impugned in the said appeal was obtained by misleading the learned Trial Court and/or without presenting the correct and true facts and thus, while admitting the appeal for hearing, was pleased to stay the operation of the order dated 07.09.2024, passed by the learned Civil Judge (Senior Division) No.1, Kamrup (M), Guwahati in Misc. Arbitration No. 40/2024.
5) It may be mentioned that the learned Civil Judge (Senior Division) No.1, Kamrup (M), Guwahati, had granted the following interim reliefs vide order dated 07.09.2024, passed in Misc. Arbitration (Appeal) No. 40/2024:
A temporary injunction is ordered restraining the respondent from taking coercive action against the applicant, including the termination of the dated 28.03.23 dealership agreement.
A mandatory injunction is issued directing the respondent company to withdraw the suspension of the Multi Product Dispensing Units, specifically MPDs numbered 201508001332 and 201508001322, suspended on 02.08.2023.
An ad-interim injunction is ordered, directing the respondent and/or officers not to undertake any coercive action prejudicial to the rights and interests of the applicant concerning the retail outlet until the matter is resolved through arbitration as per the arbitration clause in the agreement.
6) By virtue of the order dated 13.02.2025, this Court had put both sides to notice for hearing on the maintainability of the instant appeal. Accordingly, the matter was heard on 27.02.2025, on the issue of maintainability.
7) On the issue of maintainability, the learned senior counsel for the appellant had submitted that by virtue of the notification no. 62 dated 26.09.2024, issued by the Registrar General, this Court had directed that all appeals from decrees of the Commercial Courts and Commercial Appellate Division Bench under section 13(1A) of the Commercial Courts Act, 2015 is to be registered as Comm. Appl. Div. under category code 10306, which was followed by another notification no. 54 dated 10.05.2023, nominating the instant Bench as the Commercial Appellate Division Bench with immediate effect. Therefore, as the Commercial Appellate Division Bench, this appeal would be maintainable in law.
8) It was submitted that if this Court has doubts on the maintainability of this writ petition, the matter may be referred for being decided by a larger Bench.
9) Per contra, the learned counsel for the respondent had submitted that no second appeal is envisaged under the scheme of the Commercial Courts Act, 2015. Therefore, notwithstanding that the notifications issued by this Court provide a forum, but does not give the appellant a right to appeal.
10) Considered the submissions and examined the materials available on the record.
11) It is deemed appropriate to examine a few provisions of the Commercial Courts Act, 2015:-
2(1) In this Act, unless the context otherwise requires,-
(a) "Commercial Appellate Division" means the Commercial Appellate Division in a High Court constituted under sub-section (1) of section 5;
(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;
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(d) "Commercial Division" means the Commercial Division in a High Court constituted under sub-section (1) of section 4;
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Constitution of Commercial Courts.- (1) The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Courts at District level, as it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act:
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:
Provided further that with respect to a territory over which the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary.
(1A) Notwithstanding anything contained in this Act, the State Government may, after consultation with concerned High Court, by notification, specify such pecuniary value which shall not be less than three lakh rupees or such higher value, for whole or part of the State, as it may consider necessary.
(2) The State Government shall, after consultation with the concerned High Court specify, by notification, the local limits of the area to which the jurisdiction of a Commercial Court shall extend and may, from time to time, increase, reduce or alter such limits.
(3) The State Government may, with the concurrence of the Chief Justice of the High Court appoint one or more persons having experience in dealing with commercial disputes to be the Judge or Judges, of a Commercial Court either at the level of District Judge or a court below the level of a District Judge.
Constitution of Commercial Division of High Courts.- (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.
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.
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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 as amended by this Act and section 37 of the Arbitration and Conciliation Act, 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.
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Act to have overriding effect.- Save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Act.
12) It must be mentioned herein that unlike a couple of High Courts in this Country, which has been conferred with original jurisdiction to try suits including commercial suits, this High Court has not been conferred with original jurisdiction to try suits and/or commercial suits. Therefore, upon a conjoint reading of the provisions of sections 5, 3(1), 4(1), 13(1) and 13(1-A) of the Commercial Courts Act, 2015, it is clear that unless the impugned order is passed by the Commercial Division of this Court, no appeal shall lie before the Commercial Appellate Division of this Court, notwithstanding that a Commercial Appellate Division has been constituted and notified.
13) Therefore, this Court has no hesitation to hold that the present case is one which is squarely covered by the provisions of section 13(1A) of the Commercial Courts Act, 2015.
14) Thus, from the scheme of the Commercial Courts Act, 2015, it is seen that under the erstwhile section 12 of the Commercial Courts Act, 2015, which was repealed with effect from 03.05.2018, provisions for only one appeal was provided for, and with the repeal of the section 12, still, there remains one provision and forum for appeal. Thus, in other words, the learned senior counsel for the appellant has not been able to show that there is anything contained in the Commercial Courts Act, 2015, which envisages entertaining of a second appeal.
15) Moreover, it is seen that section 21 of the said Commercial Courts Act, 2015 confers an overriding effect to the said Act. Moreover, it is trite law that an appeal is a creature of statute. Therefore, with all respect to (i) the notification no. 54 dated 10.05.2023; and (ii) notification no. 62 dated 26.09.2024, issued by this Court, owing to the overriding effect under section 21 of the Commercial Courts Act, 2015, unless there is a statutory provision conferring power to entertain an appeal by the Commercial Appellate Division of this Court, this Court would not have statutory power under the Commercial Courts Act, 2015 to entertain this instant appeal.
16) The submissions of the learned counsel for the appellant that if this Court has doubts on the maintainability of this writ petition, the matter may be referred for being decided by a larger Bench is bereft of any merit. By order dated 13.02.2025, this Court has put the parties to notice to address on the maintainability of this appeal, which does not amount to the Court having any doubt as regards its jurisdiction. The said order was only to put the counsel for the appearing parties to address this Court on the preliminary issue of maintainability. Even otherwise, the learned senior counsel for the appellate has not been able to show any authority on the point that if a Bench of the High Court has put the parties to notice to address it on the preliminary issue of maintainability, the matter has to be referred for being heard by a larger Bench. The said submissions being devoid of any merit, stand repelled and rejected.
17) Thus, the preliminary issue of maintainability of this appeal is decided in the negative and against the appellant and in light of the discussions above, it is held that this appeal is not maintainable in the absence of any statutory provisions under the Commercial Courts Act, 2015, conferring appellate power to the Commercial Appellate Division of this Court, which has no original jurisdiction to try suits including commercial suits.
18) Accordingly, this appeal is dismissed.
19) There shall be no order as to cost.
20) It is clarified that the Court has not examined the legality of the order under challenge. Therefore, this order shall not prejudice any of the parties herein when the Commercial Suit and/or the Commercial Appeal, as the case may be, are heard on merit.