TMI Blog2019 (11) TMI 1722X X X X Extracts X X X X X X X X Extracts X X X X ..... se. In resolving such problems of interpretation, no settled principles can be applied except to refer to the object and purpose of each of the two provisions, containing a non obstante clause. Two provisions in same Act each containing a non obstante clause, requires a harmonious interpretation of the two seemingly conflicting provisions in the same Act. In this difficult exercise, there are involved proper consideration of giving effect to the object and purpose of two provisions and the language employed in each. From the language of the definition of the term the Court under Section 2(e) of the Act of 1996 the Parliament apparently intended to confer the power on the highest judicial authority in a district. It must certainly be taken to have been conscious of the object to be achieved while framing the definition of the term Court . Besides, it intended to minimize the supervisory role of the Courts in the arbitral process. It also intended to add the greatest credibility to this process - It is thus that the Legislature clearly circumscribed and specifically narrowed down the definition of the term Court to mean only the Court of the principal civil original jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irm as a Lessee herein and accordingly the opponents, its agents, employees, attorneys, assignees, transferees and every person claiming for, through and on behalf of them may kindly be restrained from doing, causing or including in any acts, things or deeds amounting to disturbance, obstruction, invasion in the exclusive possession of the Possessed Leased Premises as held by the applicant firm; (B) That the opponents, their representatives, agents, employees, assignees and every person claiming for, through and on behalf of them till the constitution of the Arbitral Tribunal may kindly be prohibited/restrained from doing, carrying or indulging in any act, process or action either in or at or over the Possessed Leased Premises causing or likely to cause any obstacle, obstruction, disturbance and or dispossession of the Possession Leased Premises in any manner qua the applicant firm herein; (C) That the opponents, their representatives, agents, employees, assignees and every person claiming for, through and on behalf of them till the constitution of the Arbitral Tribunal may kindly be prohibited/restrained from doing carrying out indulging in any act, thing or process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory directions may kindly be issued and passed to ensure restitution/continuation of the lawful and exclusive possession in respect of the part of the possession leased premises i.e. Part I as mentioned in the main petition. (H) any other relief that this Hon'ble Court may deem fit in the larger interest of truth, legality, substantial justice and to uphold the purpose and faith in the Transfer of Property Act, 1882 against the opponents may also kindly be passed in favour of the applicant; 3.2. The 2nd Additional District Judge, Dahod on its own passed the impugned order dated 22/10/2019 holding as under: (3) Mr. Sumant has argued that according to the provision of the Arbitration Act, specifically S. 2(e) of the Act, this Court being Principal Civil Court in the District has only the jurisdiction to entertain present application and provision of Commercial Courts Act, 2015 so far as constitution of the Commercial Courts and its jurisdiction will not apply in the present case. He has further argued that because the Arbitration Act is substantial Act, provisions of Commercial Courts Act will not have any effect if the provisions are not in consonance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed. ORDER 1. This Civil Misc. Application is hereby returned to the applicant as this Court has no jurisdiction to deal with and applicant is directed to present this application before the Principal Senior Civil Court Dahod for hearing and disposal in accordance with the law, and this Civil Misc. Application is hereby disposed of accordingly. 3.3. Thus, the Court below took the view that the application preferred by the applicant herein under Section 9 of the Act, 1996 ought to have been filed in the Court of the Principal Senior Civil Judge, Dahod [Commercial Court] as the dispute between the parties is a commercial dispute under the provisions of the Commercial Courts Act, 2015. 4. Being dissatisfied with the impugned order passed by the Court below the applicant is here before this Court with the present application invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 5. Mr. Shalin Mehta, the learned senior counsel assisted by Mr. Aditya Pandya, the learned counsel appearing for the applicant vehemently submitted that the Court below committed a serious error in passing the impugned order. 6. Mr. Mehta w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 9 of the Act 1996 any Commercial Court which is a Civil Court of a grade inferior to such Principal Civil Court, or any Court of Small Causes, would be barred from exercising jurisdiction under Section 9 or any provisions of the Act 1996. 8. Mr. Mehta in support of his aforesaid submissions has placed strong reliance on a Division Bench decision of this Court in the case of Kirtikumar Futarmal Jain v. Valencia Corporation; Special Civil Application No. 15145 of 2019; decided on 13/09/2019 (Reported in: (2019) 3 Guj LH 667). Mr. Mehta submitted that Kirtikumar Jain (supra) was specifically referred to and relied upon before the Court below, but unfortunately, the Court below has not even referred to the same. In such circumstances referred to above, Mr. Mehta prays that there being merit in this application, the same be allowed and the impugned order be quashed. 9. On the other hand, Mr. Ruchir Patel, the learned counsel appearing for the respondents very fairly submitted that the Court below committed an error in passing the impugned order. According to Mr. Patel, without there being any objection raised at the instance of his clients, the Court on its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2015 (4 of 2015), the Government of Gujarat, after consultation with the High Court of Gujarat, hereby designates the following Courts as Commercial Appellate Court as shown in Column 2 of the Schedule, as follows: S. No. Name of the court (1) (2) 1. The Principal Judge, City Civil Court, Ahmedabad 2. All the Principal District Judge in the state By order and in the name of the Governor of Gujarat. [H.H. Varma] Deputy Secretary to Government. 13. Section 2(e) of the Act, 1996 defines the term Court . It reads thus: 2(e) Court means- (i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious.] 15. Section 12 of the Gujarat Civil Courts Act, 2005 is with respect to the 'Jurisdiction of a Court of District Judge'. The Section 12 reads thus: 12. Jurisdiction of a court of District Judge.- (1) A Court of District Judge shall be the principal civil court of original jurisdiction within the local limits of its jurisdiction. (2) Subject to the provisions of the Code, the jurisdiction of a court of District Judge shall extend to all original suits and proceedings of a civil nature. (3) A Court of District Judge shall, subject to the general control of the High Court, have control over all other civil courts within the local limits of its jurisdiction. 16. Section 2(b) defines the term Commercial Court . The same reads thus: 2(b) Commercial Court means the Commercial Court constituted under sub-section (1) of section 3; 17. Section 3 of the Act, 2015 provides that the 'Constitution of the Commercial Courts'. The same reads thus: 3. Constitution of Commercial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 reads thus; 10. Jurisdiction in respect of arbitration matters.-Where the subject-matter of an arbitration is a commercial dispute of a Specified Value and- (1) If such arbitration is an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that have been filed in a High Court, shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted in such High Court. (2) If such arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that have been filed on the original side of the High Court, shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted in such High Court. (3) If such arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gree in making any modification in the rule, or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.] 21. We now come to the decision of this Court in the case of Kirtikumar Jain [Supra]. In the said case, the challenge was to the order passed by the Principal District Judge, Surat in the Commercial Appeal, whereby the appeal preferred by the respondents against the order passed by the Arbitral Tribunal on the application made by the applicant under Section 17 of the Act, 1996 came to be rejected and the application filed by the respondents under Section 37(2) of the Act 1996 came to be allowed. The petitioner in such circumstances approached the Commercial Court at Vadodara by way of an application under Section 9 of the Act, 1996 being a Commercial Civil Misc. Application with the prayer that the respondents be restrained from transferring or alienating the properties of the firm or creating any right in favour of the any third party. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that sub-section (1) of section 3 provides that 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 the Act. It was pointed out that in exercise of powers conferred by sub-section (1) of section 3 read with sub-section (1A) of section 3 of the Commercial Courts Act, 2015, the Government of Gujarat has issued a notification after consultation with the High Court specifying the courts shown in column 2 of the Schedule appended thereto in the area of local limits of jurisdiction specified in column 3 of the said Schedule for dealing with disputes of commercial nature having valuation of not less than rupees three lakhs. It was pointed out that insofar as the District of Surat is concerned, the Principal Senior Civil Judge and Second Senior Civil Judges have been designated as Commercial Courts. It was submitted that therefore, the Principal District Judge had no jurisdiction to entertain the appeal against the order passed by the Arbitral Tribunal. 22. We also quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Commercial Courts Act, but the right to appeal does not flow from the Commercial Courts Act. 16.3 The learned counsel next drew that attention of the court to section 10 of the Commercial Courts Act, to submit that Commercial Court contemplated under sub-section (3) of section 10 can never be a court other than a District Court; as otherwise there would be a direct conflict between the provisions of the Arbitration Act and the provisions of the Commercial Courts Act. It was submitted that if the submission of the petitioner were to be accepted, section 10(3) of the Commercial Courts Act would have the effect of taking away the right to appeal before the principal Civil Court, namely the District Court, under section 37(2)(b) of the Arbitration Act which is not permissible in law. It was submitted that insofar as the notification dated 15.4.2019 issued by the State Government under section 3((1) read with section 3(1A) of the Commercial Courts Act is concerned, it would not have an effect of taking away the right flowing under the Arbitration and Conciliation Act, inasmuch as a notification cannot take away the statutory right of appeal under section 37 of the Arbitr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes. Thus, in case of arbitration other than international commercial arbitration, the expression court means the principal Civil Court of original jurisdiction in a district. 20.3 As to which is the principal Civil Court, has been provided under section 12 of the Gujarat Civil Courts Act, 2005 which lays down that a court of the District Judge shall be the principal Civil Court of original jurisdiction within the local limits of its jurisdiction. Thus, prima facie, it would appear that an application under section 37(2)(b) would. He to a court of the District Judge. However, on behalf of the petitioner, reliance has been placed upon various provisions of the Commercial Courts Act. It may, therefore, be germane to refer to the provisions of sections 2(b), 3 and 10 of the Commercial Courts Act, which read thus: 2.(b) Commercial Court means the Commer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a district (not being a High Court) shall be filed in, and heard and disposed of by the Commercial Court exercising territorial jurisdiction over such arbitration where such Commercial Court has been constituted. 20.4 The learned counsel for the petitioner had also placed reliance upon a notification dated 15.4.2019 issued by the State Government in exercise of powers under sub-section (1) of section 3 and sub-section (1A) of section 3 of the Commercial Courts Act, whereby the courts specified therein have been notified for dealing with disputes of commercial nature having a value of not less than rupees three lakhs and the courts specified in case of Surat District are the Principal Senior Civil Judge and 2nd Senior Civil Judges. It was submitted that in view of sub-section (3) of section 10 of the Commercial Courts Act, all applications arising under the provisions of the Arbitration Act shall be heard and disposed of by the Commercial Court exercising jurisdiction over such arbitration, which in this case would be the Principal Senior Civil Judge and 2nd Senior Civil Judges in terms of the above notification issued by the State Government. Reference is also made to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of A.P. Rajappan v. High Court of Judicature, Madras 2004 (4) Mad LW 122(supra), has held thus: 12. In the above context, it has to be remembered under the Arbitration Act, 1940, the expression 'Court' had been defined differently under the definition clause Court means a Civil Court having jurisdiction to decide the question forming the subject matter of the reference if the same had been the subject matter of a suit, but does not, except for the purpose of arbitration proceedings under Section 21 include a Small Cause Court. The definition 'Court' under the Arbitration and Conciliation Act, 1996 indicates that the 'Court' means the Principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of arbitration if the same had been the subject matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes. A comparison of the two definitions makes it clear that in the new Act not only there is reference to Principal Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eschewed. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute i.e. the Arbitration Act, vis- -vis the more general statute, namely the Commercial Courts Act, being left to operate in spheres other than arbitration. Thus, the Supreme Court has held that even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute, that is, the Arbitration Act, vis- -vis the more general statute, namely, the Commercial Courts Act being left to operate in spheres other than arbitration. The overriding provisions of section 21 of the Commercial Courts Act, would, therefore, not be attracted to the facts of the present case. Accordingly the notification issued by the State Government specifying the Principal Senior Civil Judge and 2nd Senior Civil Judges as Commercial Courts for Surat District for deciding disputes of commercial nature having valuation of not less than rupees three lakhs, would have no applicability to the facts of the present case as section 2(e) of the Arbitration Act ousts t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Trade Law (for short UNCITRAL ) and various International Commercial Arbitration concepts. UNCITRAL Model Laws on International Commercial Arbitration was adopted in 1985 with a view to bring uniformity of the law of arbitral procedures and the specific needs of International Commercial Arbitration practice. The Law of Arbitration in India was earlier substantially contained in three enactments, namely, the Act of 1940, Arbitration (Protocol and Convention) Act, 1973 and the Foreign Awards (Recognition and Enforcement) Act, 1961. It was widely felt that the Act of 1940, which contains the General Law of Arbitration, has become outdated and it is against this backdrop and in view of UNCITRAL Model Laws, the Act of 1996 was introduced. This Act repeals the Act of 1940. One of the objectives of enactment of the Act of 1996 was to minimize supervisory role of the Courts in an arbitral process. This object will have to be borne in mind while interpreting the term Court under Section 2(e) of the Act of 1996. A reference to the statement of objects and reasons in the process of interpretation of a Statute is held permissible by a catena of decisions of the Supreme Court. Even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rincipal civil Court of original jurisdiction in a district exactly means, whether it is the Civil Judge, Senior Division or the District Court. By using the words means and includes and the expression does not include as occurring in the definition of Court it makes the intendment of the Parliament clear. By using these words the Parliament has made the meaning of the term Court explicitly clear. The Supreme Court in (P) Kasilingam and others v. P.S.G. College of Technology and others AIR 1995 Supreme Court 1395 while dealing with the similar definition and word 'means' occurring therein observed that the use of word 'means' indicates that definition is a hard and fast definition and no other meaning can be assigned to the expression that is put down in the definition . Similarly the Supreme Court in Mahalaxmi Oil Mills v. State of Andhra Pradesh, AIR 1989 Supreme Court 335, while interpreting the definition of Tobacco , wherein all the aforesaid three words/expressions, as occurring in the definition of Court are there, has stated the word means is a term of restriction, while the word includes is a term of enlargement. When both these words are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such principal civil Court. The Court of Civil Judge, Senior Division may also be a civil Court of original jurisdiction, but in any case it could not be termed as the principal civil Court of original jurisdiction in a district. 26. It appears that Section 21 of the Act 2015 has created the confusion in the mind of the Presiding Officers of the subordinate Courts. We have referred the Section 21 of the Act, 2015 in the earlier part of the judgment. We once again quote the same. 21. 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. 27. There is no doubt that Section 21 of the Act 2015 starts with anon obstante clause. As regard the non obstante clause, this Court deems it fit to consider few decisions: 28. In State of West Bengal v. Union of India, AIR 1963 SC 1241, it is observed as under: The Court must ascertain the intention of the legislature by directing its attention not merely to the clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions over some contrary provisions that may be found either in the same enactment or some other statute. In other words such a clause is used to avoid the operation and effect of all contrary provisions. The phrase is equivalent to showing that the Act shall be no impediment to measure intended. To attract the applicability of the phrase, the whole of the section, the scheme of the Act and the objects and reasons for which such an enactment is made has to be kept in mind. 33. In ICICI Bank Ltd. v. SIDCO Leathers Ltd. (2006) 67 SCL 383 (SC) : AIR 2006 SC 2088, the Supreme Court, at Paragraphs 34, 36 and 37, held as follows: 34. Section 529-A of the Companies Act no doubt contains a non obstante clause but in construing the provisions thereof, it is necessary to determine the purport and object for which the same was enacted.... 36. The non obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy.... 37. A non obstante clause must be given effect to, to the extent the Parliament intended and not beyond the same. 34. The Supreme Court, in the case of Central Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules. 38. In A.G. Varadarajulu v. State of Tamil Nadu [(1998) 4 SCC 231] : (AIR 1998 SC 1388), the Supreme Court relied on Aswini Kumar Ghose's case. The Court while interpreting the non obstante clause contained in Section 21A of Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 held: It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, the non obstante clauses are not always to be regarded as repealing clauses nor as clauses which expressly or completely supersede any other provision of the law, but merely as clauses which remove all obstructions which might arise out of the provisions of any other law in the way of the operation of the principle enacting pro vision to which the non obstante clause is attached. [See: Bipathumma and Ors. v. Mariam Bibi, 1966 (1) Mysore Law Journal p. 162, at page 165]. 42. Thus, from the language of the definition of the term the Court under Section 2(e) of the Act of 1996 the Parliament apparently intended to confer the power on the highest judicial authority in a district. It must certainly be taken to have been conscious of the object to be achieved while framing the definition of the term Court . Besides, it intended to minimize the supervisory role of the Courts in the arbitral process. It also intended to add the greatest credibility to this process. We find support for the view in the judgments of the Supreme Court. The Supreme Court while dealing with the provisions of Section 11 of the Act of 1996, in S.B.P. and Company (AIR 2006 SC 450)(supra) in paragraph 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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