Sabu George and Others v. James George and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945** **RP NO. 34 OF 2024** **AGAINST THE JUDGMENT DATED 22.12.2023 IN Arb.A 29/2023 OF HIGH COURT OF KERALA** **-----** ## **REVIEW PETITIONERS/APPELLANT:** 1 SABU GEORGE, AGED 58 YEARS, S/O VARGHESE, RESIDING AT KALAPPURAYIL HOUSE, WEST HILL P.O, KOZHIKKODE DISTRICT. PIN 673005 REPRESENTED BY POWER OF ATTORNEY HOLDER JOSHY FRANSIS, AGED 58 YEARS S/O. FRANCIS, RESIDENT OF THUNDATHIL HOUSE, THODUPUZHA EAST P.O. IDUKKI DISTRICT, PIN – 685558. 2 JOSHY FRANCIS, AGED 58 YEARS, S/O FRANCIS, RESIDENT OF THUNDATHIL HOUSE, THODUPUZHA EAST P.O. IDUKKI DISTRICT, PIN – 685585. 3 KOSHY ALEXANDER, AGED 48 YEARS, S/O. K.K. ALEXANDER, RESIDENT OF KUTTICHIRA HOUSE, NAGARKOIL P.O., TAMILNADU STATE PIN 629001 REPRESENTED BY POWER OF ATTORNEY HOLDER JOSHY FRANSIS, AGED 58 YEARS S/O FRANCIS, RESIDENT OF THUNDATHIL HOUSE, THODUPUZHA EAST P.O. IDUKKI DISTRICT, PIN – 685585. 4 BIJOY KURIAN, AGED 53 YEARS, S/O. KURIAN, RESIDENT OF KALLANCHIKAVAYALIL HOUSE, PIZHAKU P.O., KOTTAYAM DISTRICT, PIN 686655. REPRESENTED BY POWER OF ATTORNEY HOLDER JOSHY FRANSIS, AGED 58 YEARS S/O FRANCIS, RESIDENT OF THUNDATHIL HOUSE, THODUPUZHA EAST P.O. IDUKKI DISTRICT, PIN – 685585. **RP NO. 34 OF 2024 -2-** 5 MATHEW SHIBU MATHAI, AGED 57 YEARS, S/O. A.U. MATHAI, RESIDENT OF ANAKUTHICKAL HOUSE, PUTHUVELY P.O., KOTTAYAM DISTRICT, PIN 686641 REPRESENTED BY POWER OF ATTORNEY HOLDER JOSHY FRANSIS, AGED 58 YEARS S/O FRANCIS, RESIDENT OF THUNDATHIL HOUSE, THODUPUZHA EAST P.O. IDUKKI DISTRICT PIN 685585, PIN – 685585. 6 SOY THOMAS, AGED 49 YEARS, S/O. N.A.THOMAS KADAPPATTOOR P.O., PALA, KOTTAYAM DISTRICT, PIN 686574. REPRESENTED BY POWER OF ATTORNEY HOLDER JOSHY FRANSIS, AGED 58 YEARS S/O FRANCIS, RESIDENT OF THUNDATHIL HOUSE, THODUPUZHA EAST P.O. IDUKKI DISTRICT, PIN – 685585. 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 K.RAMAKUMAR ## **RESPONDENTS/RESPONDENTS:** 1 JAMES GEORGE, AGED 56 YEARS, S/O. GEORGE, RESIDENT OF CHELACKEL HOUSE,VALIYATHOVALA P.O., IDUKKI DISTRICT .PIN 685514 AND PRESENTLY RESIDING AT VILLA-23, EZDAN-37,ZONE-91,STREET871,BUILDING-117, DOHA, QATAR., PIN – 685514. 2 VARUGHESE MATHEW,AGED 66 YEARS, S/O. P.C.VARGHESE, RESIDENT OF KALLARACKAL HOUSE, VADAVATHOOR P.O., KOTTAYAM DISTRICT. PIN 686010 AND PRESENTLY RESIDING AT BUILDING-101, UMM AL SANEEM STREET, STREET-149, AL RAYYAN, ZONE-56, P.B NO. 22301,DOHA,QATAR., PIN – 686010. **RP NO. 34 OF 2024 -3-** 3 GEORGE JOSEPH, AGED 60 YEARS, S/O. K.K. VARGHESE RESIDENT OF MERIN VILLA, VELLOONNI P.O., KOTTAYAM DISTRICT, PIN-686008 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, PIN – 682023. 6 VARUGHESE DANIEL, AGED 54 YEARS, S/O.DANIEL, VALLIKALAYIL HOUSE, MALLASSERY P.O.,PATHANAMTHITTA, PIN-689646., PIN – 689646. BY ADV JAWAHAR JOSE THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.P. No.34 of 2024 in Arb. Appeal No.29 of 2023 = = = = = = = = = = = = = = = = = = Dated this the 23[rd] day of January, 2024** ## **O R D E R** As per judgment dated 22.12.2023, this Court held that the appeal lies before the concerned commercial appellate court/District Court. 2. The judgment is sought to be reviewed on two grounds; firstly, the Arbitration Act which is a special statute prevails over the general statute viz. Commercial Courts Act. The appeal is the creature of the statute. In terms of Section 37 of the Arbitration and Conciliation Act, appeal lies before this Court and not the District Court. Secondly, the order passed is not one pending an arbitration, but at a pre-arbitration stage. Therefore, Section 10(3) of the Commercial Courts Act does not have any application. The appeal is to be filed as provided under the Arbitration Act, it is contended. R.P. No.34 of 2024 in Arb. Appeal No.29 of 2023 -: 2 :- 3. I have heard learned Senior Counsel Sri.K.Ramakumar on behalf of the review petitioners and Sri.Jawahar Jose on behalf of the respondent. 4. In _**Jaycee Housing Private Ltd. & Ors. v. Registrar (General), Orissa High Court, Cuttack & Ors. (2023) 1 SCC 549**_ , the Apex Court held that, the designated Commercial Court which is subordinate to the rank of the Principal Civil Court has jurisdiction to hear all applications or appeals under the Arbitration and Conciliation Act, 1996 other than those arising out of international commercial arbitrations. The Apex Court held that if the contention that only the Principal Civil Court has jurisdiction is accepted, it will frustrate the object and reasons of enactment of the Commercial Courts Act. It was held that it is the settled law that, the legislature while enacting the subsequent law, is conscious about the provisions of the Acts prior in time, and that the later Act shall prevail. R.P. No.34 of 2024 in Arb. Appeal No.29 of 2023 -: 3 :- 5. The Apex Court noticed that, there cannot be two fora with respect to different commercial disputes, Arbitration proceedings before the Principal Civil Court and with regard to other Commercial disputes before the Commercial Courts established under the Commercial Courts Act. 6. With regard to the second contention, this Court has in _**Pranathmaka Ayurvedics Pvt. Ltd. & Ors. v. Cocosath Health Products represented by its Managing Partner (2021) 1 KLJ 293**_ held that, an order under Section 9 of the Arbitration Act by a Commercial Court is appealable under Section 13(1) of the Commercial Courts Act. This Court held that though the right of appeal is created under the Arbitration Act, by virtue of the subsequent statute, viz. Commercial Courts Act, the fora is prescribed as the Commercial Court. Section 10 of the Commercial Courts Act deals with cases where the subject matter of an arbitration is a commercial dispute. The order under R.P. No.34 of 2024 in Arb. Appeal No.29 of 2023 -: 4 :- Section 9 is also one to secure the subject matter of arbitration. So also, under Section 37 of the Arbitration Act, appeal from an order under Section 9 lies to the Court authorised by law to hear appeals from original decrees of the Court passing the order. The Court passing the Section 9 order being the commercial court, the appeal therefrom lies in terms of Section 13(1) of the Commercial Courts Act to the Commercial Appellate Court. Therefore, the said contention also fails. Review petition lacks merits and is dismissed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF RP 34/2024** PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE APPLICATION UNDER S.9 OF ARBITRATION AND CONCILIATION ACT, FILED BY RESPONDETS AS O.P.(ARB). NO.1/2023 BFORE HONOURABLE COMMERCIAL COURT KATTAPPANA. -----