Interim Order 1

Order Details: Order below exhibit
Pdf Text: Order on Exh. E 1
MHCC010096002019
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
ORDER BELOW EXH.E
IN
EXECUTION APPLICATION NO.348 of 2019.
Shashikiran Engineering Works. ...Applicant/
Decree Holder.
In the matter of :-
Shashikiran Engineering Works. ...Decree Holder.
V/s.
M/s. Shamvik Glasstech Pvt. Ltd ...Judgment Debtor.
Appearances :-
Adv.Chandrakant Yadav for DH/applicant.
Adv.Suresh Dhole a/w Adv.P. P. Mergane for JD.
Coram : U. C. Deshmukh.
C.R. No.: 59.
Date : 31/10/2023.
ORAL ORDER
This application is moved by the Judgment debtor to
set aside the order dated 20.04.2001 whereby warrant of attachment is
issued.
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Order on Exh. E 2
2. It is contention of the judgment debtor that Execution
Petition has arisen out of statutory agreement. Hence, this Court has no
jurisdiction to entertain the same. Judgment Debtor has filed writ
petition before Hon’ble High Court, Mumbai and same is pending.
Hence, prayed to allow the application and set aside order dated
20.04.2023
3. Decree holder filed its reply with contention that the
application is not maintainable. This Court has jurisdiction to entertain
the execution application. Though judgment debtor has filed writ
petition before Hon’ble High Court no order in nature of stay or
granting any relief has passed by Hon’ble High Court in favour of the
Judgment Debtor. The impugned order whereby warrant of attachment
is issued was passed after considering all relevant facts and same is
executed vide Order 21 Rule 54 of the Code of Civil Procedure ( In short
‘Code’)
4. Judgment debtor filed written notes of arguments at Exh.
K. He also filed documents in nature of roznama of the matter and
copies of the Maharashtra Civil Court Act 1869 and Bombay City Civil
Court 1948 and also relied upon the judgment of Hon’ble Apex Court in
State of West Bengal and Others V/s. Associated Contractors, (2015)1
S.C.C.32.
5. On the other hand, decree holder filed copy of Notification
published by State of Maharashtra on 05th September 2012. It is
submission of decree holder that this Court is well empowered to
entertain execution application. Hence, prayed to reject the application
(Exh. E).
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Order on Exh. E 3
6. The sum and substance of the submission of the Judgment
decree is that this Court is not a court within the meaning of Section 6
& 7 of the Maharashtra Civil Court Act. The Hon’ble High Court at
Bombay has Original jurisdiction to entertain civil dispute. Hence, it is
the Bombay High Court which has original jurisdiction to entertain the
execution application in question. The Arbitration and Conciliation Act
being a special law only the Hon’ble High Court would have jurisdiction
to deal with the matter. Hence execution application is not
maintainable. Therefore, it is necessary to see whether this court has
jurisdiction and particularly to see whether this Court can be termed as
Civil Court for the purpose of section 2(1) (e) of the Arbitration and
Conciliation Act, 1996. [In short ‘The Act’]
7. The Hon’ble Supreme Court in State of Bengal (Supra) has
observed that Section 2(1) (e) of the Act further goes on to say that
Court could not include any civil Court as a grade inferior to such
Principal Civil Court or Small Cause Court. Where the High Court
exercising ordinary civil jurisdiction over a district, the High Court will
have the preference to the principal Civil Court of Original jurisdiction
in that district. This Court is situated under Bombay City Civil Court
Act,1948. It is established under section 3 of the Bombay City Civil
Court Act, 1948. Thus, in the light of observation of Hon’ble Supreme
Court in aforesaid cases, the reference to section 3 of Bombay City Civil
Court Act is necessary. Hence, Section 3 of Bombay City Civil Court Act
1948 is reproduced as follows :
3. Constitution of City Court – The [State] Government may,
by notification in the Official Gazatte, establish for the
Greater Bombay a Court, to be called the Bombay City Civil
Court. Notwithstanding anything contained in any law, such
court shall have jurisdiction to receive, try and dispose off all
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Order on Exh. E 4
suits and other proceedings of a civil nature. [not exceeding
rupees one crore in value] arising within the Greater Bombay,
except suits for proceedings which are cognizable.:
(a) by the High Court as a Court of Admiralty or vice-
Admiralty as Colonial Court of Admiralty, or as a
Court having testamentary, intestate or matrimonial
Disjuncture, or
(b) by the High Court for the relief of insolvent
debtors, or
(c) by the High Court under any special law other
than the Letters Patent, or
[(c-1) by the High Court under the Parsi Marriage and
Divorce Act, 1936 or
(c-2) by the High Court in respect of intellectual
property matters;or]
(d) by the Small Cause Court.
“Provided that, the State Government may, from time to
time, after consultation with the High Court, by notification in the
Official Gazatte, enhance the pecuniary jurisdiction of the City Civil
Court and corresponding alter the pecuniary jurisdiction of the High
Court.
8. On perusal of provision of Section 3 of Bombay City Civil
Court Act, it is evident that the High Court has original jurisdiction in
respect of the matter arisen out of the special law. However, Section 3
expressly states that State Government by Notification in consultation
with Hon’ble High Court may establish a Court to be called Bombay
City Civil Court to exercise jurisdiction to try and dispose of suits and
other proceeding of civil in nature. Vide amendment act Maharashtra
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Order on Exh. E 5
Act, 25th December, 2012 the pecuniary jurisdiction of this Court is
enhanced upto Rs. 1,00,00,000/- and recently upto Rs. 10,00,00,000/-
9. Section 18 of Bombay City Civil Court Act provides that all
suits and proceedings cognizable by the City Civil Court and pending in
the High Court shall be transferred to the City Civil Court and City Civil
Court shall have all empowers and jurisdiction thereof as if they had
been the originally instituted in that Court. Conjoint reading of Section
3 and 18 of the Bombay City Civil Court Act manifest that subject to the
pecuniarily jurisdiction, this Court has original jurisdiction to try all
suits of civil in nature.
10. Judgment debtor does not dispute that the Hon’ble High
Court has original jurisdiction. However, it is his case that this Court is
not district court within the meaning of Section 2(1) (e) of the Act. The
Hon’ble High Court in State of Bengal (Supra) observed that where
original jurisdiction lies with the High Court then the only High Court
would have jurisdiction and it be termed as a Court within the meaning
of Section 2(1)(e) of the Act. Considering the pecuniary limits
prescribed under Bombay City Civil Court under Section 3 read with
Section 18 of Bombay City Civil Court Act, this Court has jurisdiction to
try all suits of Civil nature. It means this Court is a Court within the
meaning of Section 2(1) (e) of the Act. Therefore, there is no substance
in submission of judgment debtor that as such the matter has arisen out
of the Act, this Court has no jurisdiction. Consequently, application
(Exh. E) deserves to be rejected. In the result, following order is
passed :-
ORDER
Application (Exh. E) is hereby rejected.
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Order on Exh. E 6
Application (Exh. E) is disposed off accordingly.
(Dictated and Pronounced in Open Court).
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:31.10.2023 Greater Bombay (CR 59).
Declared on : 31.10.2023
Dictated on : 31.10.2023
Transcribed on : 24.11.2023
Checked on : 29.11.2023
Signed on : 01.12.2023.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
31.10.2023 at 05.00 -P.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 31.10.2023
Order signed by P.O. on 02.12.2023
order uploaded on 02.12.2023
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