The High Court of Kerala vide judgment dated November 24, 2020, has dismissed a petition preferred by the petitioners under Article 227 of the Constitution challenging the order passed by the Commercial Court at Ernakulam under Section 9 of the Arbitration and Conciliation Act, 1996, on the grounds of availability of efficacious alternative remedy in the form of appeal before a civil court which ought to have been exhausted first.
It was the petitioner’s submission that as per the heading/ title of Section 13(1) of the Commercial Courts Act, 2015, only decrees and final judgments passed by Commercial Courts could be appealable. Rejecting this interpretation, the Court held that the body of the said provision clearly mentions orders to fall under the purview of appeals as well. The heading of any provision is not to be given literal meaning and interpretation when the contents are clear and sans any ambiguity. In the event of a contradictory interpretation between the two, the title cannot be utilized so as to give a specific meaning to the provision.
Thus, the High Court ruled that any orders passed by a Commercial Court which is below in hierarchy to a District Judge under Section 9 of the 1996 Act can be appealed under Section 13(1) of the Commercial Courts Act 2015.
The High Court further went on to provide alternative grounds under which an appeal challenging the impugned order passed by the commercial Court could be possible.
The first ground being that the said order was passed under Section 9 of the Arbitration and Conciliation Act 1996. Section 37 of the 1996 Act specifically provides that any order of refusal or grant of any measure under Section 9 can be appealed against.
The second ground being that the said order was one of an injunction and as per Order XLIII of the Code of Civil Procedure, 1908, orders of injunctions are expressly stated to be an appealable order.