Order Of Commercial Court U/Sec 9 Of Arbitration & Conciliation Act Appealable: Kerala High Court

An order under Section 9 of the Arbitration and Conciliation Act, passed by a Commercial Court below the level of a District Judge is appealable under Section 13(1) of the The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, the Kerala High Court has held.

The Court observed thus while considering a petition challenging an order passed by Commercial Court allowing an application filed under Section 9 of the Arbitration and Conciliation Act. The issue arose since the respondents raised objection regarding maintainability of petition under Article 227 of the Constitution of India in view of the alternative and efficacious remedy available to the petitioners as provided under Section 13(1) of the Commercial Courts Act.

The contention raised by the petitioners was that the heading of Section 13 of the Commercial Courts Act states "Appeals from decrees of Commercial Courts and Commercial Divisions" and therefore, an appeal under Section 13(1) of the Act would lie only from a decree or a final judgment passed by a Commercial Court and no appeal will lie from an order, especially an interlocutory or interim order, passed by a Commercial Court. Referring to the provisions of the Act, Justice R. Narayana Pisharadi observed:

"There is no merit in the above contention. If the above contention of the learned counsel is accepted, the word "order" in Section 13(1) of the Commercial Courts Act would be a surplasage and that word would become otiose or redundant. 

The title to the provision need not invariably indicate the contents of the provision. If the provision is otherwise clear and unambiguous, the title pales into irrelevance. On the contrary, if the contents of the provision are otherwise ambiguous, an aid can be sought from the title so as to define the provision. In the event of a conflict between the plain expressions in the provision and the indicated title, the title cannot control the contents of the provision. Title is only a broad and general indication of the nature of the subject dealt under the provision.

The matter can be considered from another angle. In the instant case, the impugned order is an order of injunction. It is appealable under Order XLIII of the Code of Civil Procedure, 1908. It is an order passed under Section 9 of the Arbitration Act. It is also appealable under Section 37 of the Arbitration Act. Section 37(1)(b) of the Arbitration Act states that an appeal shall lie from an order granting or refusing to grant any measure under Section 9 of the said Act. Right of appeal is the creature of a statute. It is well settled that right of appeal is a substantive right. Nothing contained in Section 13(1) or Section 13(2) of the Commercial Courts Act curtails this right of appeal."

Holding thus, the court noted that the petitioners have not shown any reason for not availing the remedy of appeal against the order impugned in this original petition. In such circumstances, this Court is not inclined to interfere with the impugned order by invoking the power under Article 227 of the Constitution of India, the judge said. While dismissing the petition, the court further added:

"When there is a remedy of appeal before a civil court available to an aggrieved person and such remedy is not availed of by him, it would deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under Article 227 of the Constitution"

CASE: PRANATHMAKA AYURVEDICS PVT LTD  vs. COCOSATH HEALTH PRODUCTS [OP(C).No.1467 OF 2020]
CORAM: Justice R. Narayana Pisharadi
COUNSEL: ADV P.G.SURESH, ADV VINODE V. LUKA

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