CS(OS) 1504/2008 & I.A. 155/2009, I.A. 7249/2009
M/S ENGINEERING SYNDICATE
- DELHI DEVELOPMENT AUTHORITY
- EXECUTIVE ENGINEER ( Northern Division-II)
- S.S. JAIN, SOLE ARBITRATOR
An application was filed before Delhi High Court under Section 14 (Award to be signed and filed) of the Arbitration Act, 1940 (of the old Act) for directions to the Learned Arbitrator/respondent No.3 to file the original Arbitration Award of 26th June, 2008 in the Court. The application was numbered as Suit in accordance with the Delhi High Court Rules. While the application was pending, the petitioner filed Objections vide I.A. 115/2009 under Section 15, 16, 30 & 33 of Arbitration Act, 1940 and I.A. 7249/2009 under Section 30 & 33 of the Arbitration Act. The current matter before the HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA.
|Section 15||Power of Court to modify award|
|Section 16||Power to remit award|
|Section 30||Grounds for setting aside award|
|Section 33||Arbitration agreement or award to be contested by application|
FACTS OF THE CASE
The claim of the plaintiff before the learned Arbitrator was Rs.58,44,073/- and the claim amount in the counter-claim of the defendants was Rs.92,60,131/-.
Section 12 of the Commercial Courts Act, 2015 provides for determination of Specified Value. Clause 1(e) states that where a counter-claim is raised in any suit, appeal or application, the value of the subject matter of the commercial dispute in such counter-claim shall be taken into account along with the Claim amount.
Section 12(2) further provides that the aggregate value of the claim and the counter-claim in an arbitration of a commercial dispute shall be the basis for determination of whether the arbitration is subject to the jurisdiction of the Commercial Appellate Division or Commercial Court, as the case may be.
In the current case the suit had been initiated on the application under Section 14 of the old Act, 1940 on 05th August, 2008.
The question was whether this case was liable to be transferred to the District Courts in reference to the Notification No.106/DHC/ORGL/2019 on 30.01.2019 as the specified value of the claim and counter-claim taken together is Rs. 151,04,204/-.
A reference was made to the case Satyanarain Khandelwal vs. Prem Arora TR.P.(C.) 47/202 which was decided on 18th July, 2022. Here, the Division Bench of this Court had observed that Section 19 of the Amendment Act, 2015 states that the Act shall apply to cases relating to commercial suits filed on or after commencement of the Act i.e. 03.05.2018. There exists a term “save as otherwise provided”, this was prefixed to Section 19 of the Amendment Act, 2015 as a form of an exception. The purpose of the Clause was to preserve from destructing certain rights, remedies and privileges that already existed and it does not create any new rights. It was concluded that the Amendment Act, 2015 does not apply retrospectively to Section 15 of the Commercial Courts Act, 2015.
A further reference was also made to New India Assurance Co. Ltd. vs. Smt. Shanti Misra (1975) 2 SCC 840. Here, it was explained that where through amendment there is only a change of Forum (a change of adjectival or procedural law) the change may operate retrospectively and a person can be directed to go to the new forum even if the cause of action or right of action accrued prior to the change of forum. It was held that a party had a vested right of action, but not of forum. If a new forum was being created and made available, then the same shall be available to all the pending cause of action which may have arisen before the creation of the forum. The change of forum is meant to operative retrospectively irrespective of the fact when the cause of action accrued.
The Court after much deliberation stated that the current case was a civil suit under the Arbitration Act, 1940 in 2008 instituted prior to 03.05.2018. Considering that the total value of the suit and the counter-claim was less than Rs. 2 crores, it is hereby directed that in terms of Delhi High Court Notification No.27187/DHC/Orgl. Of 24.11.2015, this suit was transferred to the District Courts to be tried in accordance with law.
Parties were directed to appear before the learned Principal District & Sessions Judge, South District, Saket Courts, New Delhi, on 31st January, 2023 for further directions.
The petition was therefore disposed of accordingly
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JUDGEMENT REVIEWED BY ADITYA G S.