Arb.Appeal Nos.14 and 15 of 2023, High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 ``` ``` ARB.A NO. 14 OF 2023 ``` ``` AGAINST THE ORDER DATED 30.08.2022 IN AOP NO.27 OF 2021 OF COMMERCIAL COURT (PRINCIPAL SUB JUDGE), ERNAKULAM APPELLANTS/PETITIONERS: ``` - **`1 SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN, CHENNAI, PIN - 600003, REPRESENTED BY ITS GENERAL MANAGER,`** - **`2 DIVISIONAL COMMERCIAL MANAGER/CO-ORDINATION, SOUTHERN RAILWAY, THYCAUD, THIRUVANANTHAPURAM, PIN - 695014`** - **`3 THE DIVISIONAL RAILWAY MANAGER OFFICE OF THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, THYCAUD, THIRUVANANTHAPURAM, PIN - 695014`** - **`4 UNION OF INDIA, MINISTRY OF RAILWAYS, NEW DELHI, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN, CHENNAI, PIN - 600003`** ``` BY ADV T.C.KRISHNA, DSGI IN-CHARGE ``` ## **`RESPONDENT/RESPONDENT:`** ``` M.P. SARASAN, S/O.LATE M.K.PADMANABHAN, MEKKAVELIYIL HOUSE, UDAYAMPEROOR, NADAKKAVU P.O., MANAKKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN - 682307 ``` ``` BY ADVS.K.S.BABU N.SUDHA(S-652) BABU SHANKAR(K/821/2010) ALVIN JEWEL S.S.(K/000876/2019) VIDHYA T.U.(K/000827/2023) SREELAKSHMI B.T.(K/000991/2023) ``` 2 Arb.Appeal Nos.14 and 15 of 2023 ``` MENINO FUTO(K/001231/2023) ``` ``` THIS ARBITRATION APPEALS HAVING COME UP FOR ADMISSION ON 03.06.2024, ALONG WITH Arb.A.15/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Arb.Appeal Nos.14 and 15 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 ``` ``` ARB.A NO. 15 OF 2023 ``` ``` AGAINST THE ORDER DATED 30.08.2022 IN AOP NO.24 OF 2021 OF COMMERCIAL COURT (PRINCIPAL SUB JUDGE), ERNAKULAM ``` ``` APPELLANTS/PETITIONERS: ``` - **`1 SOUTHERN RAILWAY HEAD QUARTERS OFFICE, PARK TOWN, CHENNAI, PIN – 600003, REPRESENTED BY ITS GENERAL MANAGER,`** - **`2 DIVISIONAL COMMERCIAL MANAGER/CO-ORDINATION, SOUTHERN RAILWAY, THYCAUD, THIRUVANANTHAPURAM, PIN - 695014`** - **`3 THE DIVISIONAL RAILWAY MANAGER OFFICE OF THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, THYCAUD, THIRUVANANTHAPURAM, PIN - 695014`** - **`4 UNION OF INDIA, MINISTRY OF RAILWAYS, NEW DELHI, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN, CHENNAI, PIN - 600003`** ``` BY ADV T.C.KRISHNA ``` ## **`RESPONDENT/RESPONDENT:`** ``` M.P. SARASAN, S/O.LATE M.K.PADMANABHAN, MEKKAVELIYIL HOUSE, UDAYAMPEROOR, NADAKKAVU P.O., MANAKKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN - 682307 ``` ``` BY ADVS.K.S.BABU N.SUDHA(S-652) BABU SHANKAR(K/821/2010) ALVIN JEWEL S.S.(K/000876/2019) VIDHYA T.U.(K/000827/2023) ``` 4 Arb.Appeal Nos.14 and 15 of 2023 ``` MENINO FUTO(K/001231/2023) SREELAKSHMI B.T.(K/000991/2023) ``` ``` THIS ARBITRATION APPEAL HAVING BEEN FINALLY HEARD ON 03.06.2024, ALONG WITH Arb.A.14/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 5 Arb.Appeal Nos.14 and 15 of 2023 ## **JUDGMENT** Anil K. Narendran, J. These appeals filed by Southern Railway and others arise out of the order dated 30.08.2022 of the Commercial Court (Principal Sub Judge), Ernakulam in AOP Nos.27 and 24 of 2021. These appeals are filed invoking the provisions under Section 37 of the Arbitration and Conciliation Act, 1996, along with C.M.Application Nos.1 and 2 of 2024 for condonation of representation delay and filing delay, in the respective appeals, which were already allowed. 2. On 20.09.2023, when Arb.Appeal No.15 of 2023 came up for admission, this Court admitted the matter on file and the learned counsel took notice for the respondent. By the order dated 20.09.2023, records in the arbitration were called for. While adjourning the matter to 20.10.2023, this Court granted an interim stay of further proceedings till then. The said interim order, which was extended from time to time, is still in force. 3. On 31.05.2024, when these appeals came up for consideration, the learned counsel for the respondent pointed out the law laid down by a Division Bench of this Court in **Alexander** **Luke v. Aditya Birla Money Ltd. [ILR 2024 (1) Ker. 829]** which has already been considered by a Division Bench of this Court, in which one among us [Anil K. Narendran, J.] was a 6 Arb.Appeal Nos.14 and 15 of 2023 party, in the order dated 27.03.2024 in R.P.No.329 of 2024. 4. Heard the learned Deputy Solicitor General of Indiain-charge and also the learned counsel for the respondent. 5. The learned Deputy Solicitor General of India-incharge would point out that the balance court fee has already been paid and a memo to that effect is also being filed. 6. Registry to verify the same and incorporate the said memo in the judges’ papers of this appeal. 7. In **Alexander Luke [2024 KHC OnLine 107]** , a decision rendered on 14.02.2024, the Division Bench of this Court held that a plain reading of the provisions under the Commercial Courts Act, especially Section 6 and Section 10(3), would lead to the inescapable conclusion that the court for the purpose of consideration of a commercial dispute, even if it arises under the Arbitration and Conciliation Act, would be the Commercial Court and the appeal would, therefore, lie only to the Commercial Appellate Court, i.e., District Court. 8. In view of the law laid down in the decision referred to supra, conclusion is irresistible that Arb. Appeal Nos.14 and 15 of 2023 challenging the orders dated 30.08.2022 of the Commercial Court (Principal Sub Court), Ernakulam in AOP Nos.27 and 24 of 2021, respectively, are not maintainable before this Court, since 7 Arb.Appeal Nos.14 and 15 of 2023 an appeal under Section 13(1) of the Commercial Courts Act against an order passed by the Commercial Court has to be filed before the Commercial Appellate Court, i.e., the District Court. 9. Having considered the submissions made by the learned Deputy Solicitor General of India-in-charge and also the learned counsel for the respondent, we deem it appropriate to direct Registry to return the memorandum of both appeals, i.e., Arb.Appeal Nos.14 and 15 of 2023, which were filed before this Court on 04.02.2023 and 08.02.2023 respectively, to the learned Deputy Solicitor General of India-in-charge, so as to enable the appellants to present the same before the District Court, Ernakulam. 10. Registry shall return the memorandum of both appeals to the learned Deputy Solicitor General of India-incharge, forthwith. The trial court records shall also be returned to the concerned court. Both parties are directed to appear before the District Court, Ernakulam on **18.06.2024** . Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **HARISANKAR V. MENON, JUDGE** AV/4/6 8 Arb.Appeal Nos.14 and 15 of 2023 ## **`APPENDIX OF ARB.A 14/2023`** ## **`PETITIONER ANNEXURES`** ``` Copy of Award of Arbitrator ``` ``` COPY OF AWARD OF ARBITRATOR DATED 20/1/2018 ``` 9 Arb.Appeal Nos.14 and 15 of 2023 ## **`APPENDIX OF ARB.A 15/2023`** ## **`PETITIONER ANNEXURES`** ``` Copy of Award of the CERTIFIED COPY OF THE AWARD DATED 23/1/2018 Arbitrator PASSED BY THE ARBITRATOR IN THE MATTER OF PARKING CONTRACT AT ERNAKULAM TOWN AND LETTER OF ACCEPTANCE NO. V/C 300/VP/ERN DATED 25/06/2013 AND AGREEMENT EXECUTED ON 22/7/2013 BETWEEN THE CLAIMANT AND SENIOR DIVISIONAL COMMERCIAL MANAGER, SOUTHERN RAILWAY, THIRUVANANTHAPURAM ```