Order of Commercial Court U/S 9 of Arbitration & Conciliation Act Appealable: Kerala HC

Order of Commercial Court U/S 9 of Arbitration & Conciliation Act Appealable: Kerala HC

The Kerala High Court has ruled that 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 Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts 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 petitioners contended 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.

Justice R. Narayana Pisharadi referred to the provisions of the Act and 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 Court held that 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.

According to the Court, 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 the right of appeal.

The court further noted that the petitioners failed to show any reason for not availing the remedy of appeal against the order impugned in this original petition. In such circumstances, the Court observed that it is not inclined to interfere with the impugned order by invoking the power under Article 227 of the Constitution of India.

The court further held, "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."