Before ordering for transfer of an application to commercial court, a finding must be recorded that it is a commercial dispute which can be so transferred: High Court of Uttarakhand.
All suits and applications relating to a commercial dispute of Specified Value pending in a Civil Court alone can be transferred to a Commercial Court. A single Judge bench comprising Hon’ble Justice Manoj Kumar Tiwari, in the matter of Shashi Agarwal Vs. State of Uttarakhand and others. (WRIT PETITION (M/S) No. 961 of 2021), dealt with an issue where the petitioner had approached this court feeling aggrieved by the transfer order given by District Judge. In the present case, A lease of land for agricultural purposes was granted to the petitioner’s father-in-law in the year 1933, which was for 99 years. The lease deed contained an arbitration clause which state that any disputes arising between the lessor and the lessee relating to or concerning the lease or any term covenant thereof shall be referred to the Commissioner of the Division in which the demised land is situated and the decision of the commissioner would be binding on them. When a dispute arose between the lessor and the lessee regarding the amount payable as lease rent, the matter was taken before the commissioner as arbitrator. Petitioner challenged the award of the commissioner under Section 34 of Arbitration &amp; Conciliation Act, 1996 before the District Judge. The district judge transferred the case to the commercial court, Dehradun. Thereby feeling aggrieved the petitioner approached this court. Later upon perusal of the order, it was found that District Judge had not applied his judicial mind while transferring the petitioner’s Arbitration Application to the Commercial Court, Dehradun. The District Judge merely relied upon an order passed by his office. The expression ‘commercial dispute’ has been defined in Section 2 (c) of Commercial Courts Act, 2015, and Section 15 of the said Act provides that all suits and applications relating to a commercial dispute of Specified Value pending in a Civil Court alone can be transferred to a Commercial Court. The court observed that – “before ordering for transfer of petitioner’s application filed under Section 34 of Arbitration &amp; Conciliation Act, 1996…District Judge to record a finding that it is a commercial dispute of specified value which can be so transferred”. Thereby the writ petition was allowed and the matter was remitted back to the learned District Judge, to reconsider the matter in the light of provisions contained in the Commercial Courts Act, 2015 and to pass appropriate order within a period of three months.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ON THE 3RD DAY OF AUGUST 2021 HON’BLE SHRI JUSTICE MANOJ KUMAR TIWARI WRIT PETITIONNo. 9621 Shashi Agarwal. ...Petitioner By Mr. T.A. Khan Senior Advocate assisted by Mr. Vinay Bhatt Advocate) State of Uttarakhand & others. ...Respondents By Mr. I.P. Kohli and Mr. Pradeep Hariya Standing Counsel for the State of Uttarakhand) A lease of land for agricultural purpose was granted to petitioner’s father in law in the year 1933. The said lease was for 99 years. In the said lease deedthere was an Arbitration clause contained in Clause No.17 which is reproduced below: term convenant “17. All disputes between the lessor and the lessee relating to or concerning the lease or thereof shall be Division in which the demised land is situated and the decision of the said Commissioner thereon shall be final.” the Commissioner of Since a dispute arose between petitioner and the lessor regarding the amount payable as lease rent therefore the dispute was Commissioner as Arbitrator. The Commissioner gave 2 his award on 10.08.2005. Petitioner challenged the said award by filing an application under Section 34 of Arbitration & Conciliation Act 1996 before the District Judge Udham Singh Nagar which was registered as Arbitration Case No. 04 of 2006. Vide order dated 11.01.2021 learned District Judge Udham Singh Nagar has transferred Arbitration Case No. 006 the Commercial Court Dehradun. Feeling aggrieved by the transfer order dated 11.01.2021 petitioner has approached this Court. The impugned transfer order passed by learned District Judge Udham Singh Nagar is on record as Annexure No. 1. Perusal of the said order reveals that learned District Judge has not applied his judicial mind while transferring petitioner’s Arbitration Application to the Commercial Court Dehradun. Learned District Judge has merely relied upon an order passed by his office on 11.01.2021 which is numbered as Order No. 04. The expression ‘commercial dispute’ has been defined in Section 2 of Commercial Courts Act 2015 and Section 15 of the said Act provides that all suits and applications relating to a commercial dispute of Specified Value pending in a Civil Court alone can be transferred to a Commercial Court. Thus before ordering for transfer of petitioner’s application filed under Section 34 of Arbitration & Conciliation Act 1996 it was incumbent upon learned District Judge to record a finding that it is a commercial dispute of specified value which can be so transferred. 3 Since there is no discussion on this aspect and the impugned order is based only on an Office Order which provides for transfer of the case to Commercial Court therefore the impugned order cannot be sustained in the eyes of law. Accordingly the writ petition is allowed and the impugned order dated 11.01.2021 passed by District Judge Udham Singh Nagar is quashed. The matter is remitted back to learned District Judge Udham Singh Nagar to re consider the matter in the light of provisions contained in Commercial Courts Act 2015 and to pass appropriate order within a period of three months. The Commercial Court Dehradun shall return the record of Case No. 25 of 2021to the Court of District Judge Udham Singh Nagar within a period of two weeks’ from the date of production of certified copy of this order. 