Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 22ND DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 ARB.A NO. 29 OF 2023 AGAINST THE ORDER DATED 13.11.2023 IN O.P.(ARB.)NO.1 OF 2023 OF THE COMMERCIAL COURT, KATTAPPANA APPELLANTS/RESPONDENTS 1 TO 7 IN O.P.(ARB)NO.1 OF 2023:
1 SABU GEORGE AGED 58 YEARS S/O VARGHESE, RESIDING AT KALAPPURAYIL HOUSE WEST HILL P.O.,KOZHIKKODE DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER JOSHY FRANCIS, AGED 58 YEARS, S/O FRANCIS, RESIDENT OF THUNDATHIL HOUSE, THODUPUZHA EAST P.O. IDUKKI DISTRICT PIN 685585, PIN - 673005 2 JOSHY FRANCIS AGED 58 YEARS S/O FRANCIS, RESIDENT OF THUNDATHIL HOUSE, THODUPUZHA EAST P.O. IDUKKI DISTRICT, PIN - 3 KOSHY ALEXANDER AGED 48 YEARS S/O. K.K. ALEXANDER, RESIDENT OF KUTTICHIRA HOUSE, NAGARKOIL P.O., TAMILNADU STATE, REPRESENTED BY POWER OF ATTORNEY HOLDER JOSHY FRANCIS, AGED 58 YEARS S/O FRANCIS, RESIDENT OF THUNDATHIL HOUSE, THODUPUZHA EAST P.O. IDUKKI DISTRICT PIN 685585, PIN - 629001 4 BIJOY KURIAN AGED 53 YEARS S/O. KURIAN, RESIDENT OF KALLANCHIKAVAYALIL HOUSE, PIZHAKU P.O., KOTTAYAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER JOSHY FRANCIS, AGED 58 YEARS, S/O FRANCIS, RESIDENT OF THUNDATHIL HOUSE, THODUPUZHA EAST P.O. IDUKKI DISTRICT PIN 685585, PIN - 686655
Arb.Appeal No.29 of 2023 -: 2 :-
5 MATHEW SHIBU MATHAI AGED 57 YEARS S/O. A.U. MATHAI, RESIDENT OF ANAKUTHICKAL HOUSE, PUTHUVELY P.O., KOTTAYAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER JOSHY FRANCIS, AGED 58 YEARS, S/O FRANCIS, RESIDENT OF THUNDATHIL HOUSE, THODUPUZHA EAST P.O. IDUKKI DISTRICT PIN 685585, PIN - 686641 6 SOY THOMAS AGED 49 YEARS S/O. N.A.THOMASKADAPPATTOOR P.O., PALA, KOTTAYAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER JOSHY FRANCIS, AGED 58 YEARS, S/O FRANCIS, RESIDENT OF THUNDATHIL HOUSE, THODUPUZHA EAST P.O. IDUKKI DISTRICT PIN 685585, PIN - 686574 7 VEENA A WILSON AGED 38 YEARS W/O MR. RENJITH JOSE, MOOLENCHERRY, PALACE AVANUE, THIRUVANKULAM, HILL PALACE P.O, THRIPUNITHURA, ERNAKULAM, PIN - 682301 BY ADVS. R.ASALATHA VARMA DENNIS JOSE ARJUN VARMA
RESPONDENTS/PETITIONERS 1 TO 6 IN O.P.(ARB)NO.1 OF 2023 1 JAMES GEORGE AGED 56 YEARS S/O. GEORGE, RESIDENT OF CHELACKELHOUSE,VALIYATHOVALA P.O., IDUKKI DISTRICT AND PRESENTLY RESIDING AT VILLA-23, EZDAN-37,ZONE-91,STREET-871,BUILDING-117, DOHA, QATAR, PIN - 685514 Arb.Appeal No.29 of 2023 -: 3 :-
2 VARUGHESE MATHEW AGED 66 YEARS S/O. P.C.VARGHESE, RESIDENT OF KALLARACKAL HOUSE, VADAVATHOOR P.O., KOTTAYAM DISTRICT AND PRESENTLY RESIDING AT BUILDING-101, UMM AL SANEEM STREET, STREET-149, AL RAYYAN, ZONE-56, P.B NO. 22301,DOHA,QATAR, PIN - 686010 3 GEORGE JOSEPH AGED 60 YEARS S/O. K.K. VARGHESE RESIDENT OF MERIN VILLA, VELLOONNI P.O., KOTTAYAM DISTRICT AND PRESENTLY RESIDING AT EV 28-RO63-A. EZDAN VILLAGE 28, ZONE-91, BUILDING-108, STREET-900, DOHA, QATAR, PIN - 686008 4 SIGY MATHEW AGED 55 YEARS S/O. MATHEW, CHEERAMVELIL HOUSE, MUTTAR P.O., ALAPPUZHA DISTRICT, PIN - 689571 5 SONU AUGUSTINE AGED 56 YEARS S/O. A.P. AUGUSTINE , RESIDING AT MDRA-52, MORARJI DESAI ROAD, THRIKKAKARA, VAZHAKKALA VILLAGE, KAKKANAD P.O., ERNAKULAM DISTRICT., PIN - 682023 6 VARUGHESE DANIEL AGED 54 YEARS S/O. DANIEL, VALLIKALAYIL HOUSE, MALLASSERY P.O.,PATHANAMTHITTA, PIN - 689646 BY ADV JAWAHAR JOSE
THIS ARBITRATION APPEALS HAVING COME UP FOR FINAL HEARING ON 22.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = = Arb. Appeal No.29 of 2023 = = = = = = = = = = = = = = = = = = Dated this the 22nd day of December, 2023
JUDGMENT
The order under Section 9 of the Arbitration and Conciliation Act, 1996 is under challenge in this appeal by respondents 1 to 7 in the O.P (Arbitration).
2. The respondents raise a preliminary objection with regard to the maintainability of the appeal before this Court.
3. I have heard the learned Senior Counsel, Shri.K. Ramakumar on behalf of the appellants and Shri.Jawahar Jose, the learned counsel for the contesting respondents.
4. According to the learned counsel for the
respondents, Section 13 of the Commercial Courts Act, 2015 provides that an appeal against an order passed by the Commercial Court lies before the Commercial Arb.Appeal No.29 of 2023 -: 2 :- Appellate Court. On 24.02.2020, the Government issued a notification as per which the Principal District Courts in each Districts are notified as Commercial Appellate Courts. Therefore, the appeal lies before the District Court, it is contended.
5. The learned Senior Counsel appearing for the
appellants would on the other hand refer to Section 9 and Section 2(1)(e) of the Arbitration Act and contend that such application would lie only before the District Court going by the definition of “Courts” as, Principal Civil Court of original jurisdiction in a District. An
order under Section 9 of the Arbitration Act by the
District Court is appealable in terms of Section 37 and it would lie only before this Court, it is argued.
6. The order under challenge is passed by the
Commercial Court, Kattappana. The Subordinate Judge's Court, Kattappana is acting as the Commercial Court by Arb.Appeal No.29 of 2023 -: 3 :- virtue of a notification dated 18.03.2022 issued by the Government in terms of Section 3 of the Commercial Courts Act, 2015. Section 13 of the Commercial Courts Act provides for an appeal against an order of the Commercial Court before the Commercial Appellate Court. The Government has issued a notification designating the Principal District Courts in each Districts as Commercial Appellate Courts. Therefore, the appeal against the order impugned lies before the concerned Commercial Appellate Court - District Court.
7. Having held as above regarding the
maintainability of the appeal before this Court, it is only appropriate that the other contentions raised by the appellants are not adverted to by this Court. All such contentions are left open to be urged before the proper forum. Accordingly, holding that this Court does not have Arb.Appeal No.29 of 2023 -: 4 :- jurisdiction to entertain this appeal, Registry is directed to return the memorandum of appeal along with the original order impugned, for presentation before the proper forum. Sd/- SATHISH NINAN, JUDGE yd Arb.Appeal No.29 of 2023 -: 5 :- APPENDIX PETITIONER ANNEXURES Annexure 1 ORIGINAL COPY OF THE EMAIL
Annexure 2 CERTIFIED COPY OF THE IMPUGNED ORDER
DATED 13-11-2023 IN O.P. (ARB.) 01/2023 OF THE COMMERCIAL COURT KATTAPPANA