Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Jul-2025 16:59:40 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6010 of 2025 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Narayan Naik …. Petitioner(s) -versus- Ranjita Naik & Ors. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) For Opposite Party (s) : : Mr. Jaydeep Pal, Adv. Mr. Amit Prasad Bose, Adv. CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-15.07.2025 DATE OF JUDGMENT:-18.07.2025 Dr. S.K. Panigrahi, J. 1. This Writ Petition is preferred by the Petitioner challenging order dated 05.02.2025 passed by the learned Senior Civil Judge (Commercial Court), Bhubaneswar in ARBP Case No.92 of 2024. I. FACTUAL MATRIX OF THE CASE: 2. The present Petitioner and late Satyabrata Naik were partners of a partnership firm in the name and style of “Jyotsna Alankar” having its principal place of business at Plot No.635, Holding No.68, Ground Floor, At- Darghabazar, PO– Buxi Bazar, Cuttack, District- Cuttack. The Page 1 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Jul-2025 16:59:40 Partnership Firm was constituted on 22nd October, 2020 and the Partnership Deed contains the following relevant clauses:
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“2. That the firm shall be deemed to have been constituted with effect from 22.10.2020 and shall be a Partnership at Will.” “9. That the shares of the partners in both Profit and Loss shall be EQUAL.” “15. That the firm shall not be dissolved upon the death of any partner and shall continue to be carried on with heir, successor or legal representative of the deceased partner.” “16. That in case of dispute, the matter shall be referred to a single Arbitrator selected and appointed by both the partners and his/her decision shall be final and binding to both the partners.” 3. In the meantime, Late Satyabrata Naik expired on 10.08.2024, leaving behind the Opposite Parties as his legal heirs and successors in interest. The Opposite Parties, by virtue of Clause 15 of the Partnership Deed as reproduced above, claim to have stepped into the shoes of Late Satyabrata Naik to continue the Partnership Firm. 4. However, it is alleged by the Opposite Parties that the present Petitioner was causing obstruction and hindering their access to the books of the Firm, apart from restricting their entry into the place of business and generally causing mischief to personally gain. Thereafter, relying on Clause 16 of the Partnership Deed, the present Opposite Parties vide Notice dated 11.9.2024 sought the appointment of a sole arbitrator for adjudicating the disputes between the Parties. 5. Upon receiving no response to the Notice dated 11.9.2024, the present Opposite Parties approached the Court of the learned Senior Civil Judge Page 2 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Jul-2025 16:59:40 (Commercial Court), Bhubaneswar vide ARBP 92 of 2024 under Section 9 of the A&C Act, seeking the following interim reliefs: “It is therefore prayed that your honour may graciously be pleased a. To preserve the business establishment i.e. Jyostna Alankar, Daraghabar, Cuttack and necessary order in this regard be passed for its interim custody. b. Injunct the Respondent No.1 from obstructing the Petitioners to enter into the business premises and to look after the business affairs of the firm and to take any coercive action as against the Petitioners. c. Petitioners. d. in favour of the petitioners. Xx xx xx..” Any other reliefs as deem fit and proper be awarded Cost of the proceeding be awarded in favour of the 6. In response to the same, the present Petitioner filed an application under Order VII Rule 11 of the Civil Procedure Code and Section 2(1)(e) of the A&C Act for return of the plaint under Section 9 of the A&C Act preferred by the Opposite Parties broadly under the following grounds: a. The present Opposite Parties have not placed any document on record to show that they are the legal heirs of Late Satyabrata Naik. b. The present Opposite Parties are not “party” to the Partnership Deed and as such they have no cause of action to invoke arbitration. c. The petition under Section 9 of the A&C Act preferred by the Opposite Parties is filed contrary to Order VI Rule 15(A) of CPC. Page 3 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Jul-2025 16:59:40 7. The present Opposite Parties filed their objection to the application under Order VII Rule 11 of the Civil Procedure Code preferred by the Petitioners broadly under the following grounds: a. The Order VII Rule 11 of the Civil Procedure Code is not applicable in a proceeding under Section 9 of the A&C Act. b. None of the limited grounds under which an Order VII Rule 11 CPC can be entertained are satisfied by the present Petitioner. c. The present Opposite Parties are the legal heirs of Late Satyabrata Naik and it was highlighted that the present Petitioner is not disputing them being legal heirs but has merely said that no document has been filed with the petition showcasing the same, which is a procedural defect and can be cured. It is not anybody’s case that the present Opposite Parties have no locus standi. The Petitioner and Late Satyabrata Naik are brothers and as such, the Petitioner is relying on frivolous grounds to vex the process of law adopted by the present Opposite Parties. 8. In fact, the order dated 05.02.2025 passed in ARBP Case No.92 of 2024, the learned Senior Civil Judge (Commercial Court), Bhubaneswar rejected the application under Order VII Rule 11 of the CPC preferred by the present Petitioner on merits, after holding that such application was maintainable in a petition under Section 9 of the A&C Act. The petition under Section 9 of the A&C Act was, accordingly, put up for hearing on objections on 27.02.2025. Page 4 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Jul-2025 16:59:40 9. Being aggrieved, the present Petitioner has approached this Court seeking setting aside of order dated 05.02.2025 in ARBP Case No.92 of 2024 and also seeking a direction for allowing his application filed under Order 7 Rule 11 of CPC to reject the petition filed by the present Opposite Parties. 10. Now, the broad facts leading to the instant Petition have been laid
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down, this Court shall endeavour to fully summarise the contentions of the Parties and the broad grounds that have been urged to seeking the exercise of this Court’s power. II. PETITIONER’S SUBMISSIONS: 11. It is submitted by learned counsel for the Petitioner that the impugned order is liable to be set aside as the Opposite Parties are not parties to the Partnership Deed and, therefore, not parties to the Arbitration Agreement. The Petitioner contends that upon the death of one partner, the partnership firm shall stand dissolved by operation of law under Section 42(c) of the Partnership Act. 12. It is further contended that the Partnership Deed mentions that the place of business as Cuttack, therefore, the petition before the learned Senior Civil Judge (Commercial Court), Bhubaneswar lacks jurisdiction. III. OPPOSITE PARTIES’ SUBMISSIONS: 13. Per contra, it is submitted by the learned Counsel for the Opposite Parties that the learned Senior Civil Judge (Commercial Court), Bhubaneswar has considered the petition of the present Petitioner on Page 5 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Jul-2025 16:59:40 merits and given the bar under Section 8 of the Commercial Courts Act, this Court ought to be slow to interfere with the same. 14. It is further submitted that the present Opposite Parties are known to the Petitioner, as they belong to the same family, therefore, these petitions are mere delay tactics to frustrate, vex and harass the Opposite Parties. The Opposite Parties are legal heirs of the Late Satyabrata Naik and in light of the clear stipulation in Clause 15 of the Partnership Deed, they are deemed to be parties to the Deed. In furtherance of which, it is contended, that they were well within their rights to exercise their option of arbitration. IV. ISSUES FOR CONSIDERATION: 15. Having heard the parties and perused the materials available on record, this court has identified a singular issue that has to be determined which have emerged contentiously during the course of the hearing and is germane to the decision in the lis at hand; A. WHETHER THE LD. SR CIVIL JUDGE (COMMERCIAL COURT), CUTTACK HAS CORRECTLY ADJUDICATED THE PETITION UNDER ORDER VII RULE 11 PREFERRED BY THE PRESENT PETITIONER? 16. This Court is first required to keep in view the fact that the impugned order has been passed by the commercial Court. In view of the provisions contained in Section 8 of the Commercial Courts Act, 2015, there is a bar against entertaining the revision against an interlocutory order. Section 8 ofthe Act, 2015 reads as under: Page 6 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Jul-2025 16:59:40 time being “8. Bar against revision application or petitionagainst an in terlocutory order. Notwithstanding anything contained in any other law for the no civil revision application or petition shallbeentertained agai nst any interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, and any such challenge, subject to the provisions of section 13, shall be raised of only the Commercial Court.” in an appeal against decree force, the in 17. The provisions of Section 8 of the Commercial Courts Act, 2015 cannot operate as an absolute bar to exercise of the power under Article 227 of the Constitution of India. Section 8 despite its initial non-obstante clause, cannot operate as an absolute bar to the exercise of the power of judicial review by High Courts, which is conferred by the Constitution of India under Article 227 thereof, since the 2015 Act is a subordinate legislation under the Constitution, the latter being the ground norm of the Indian legal system, cannot obstruct the powers of this Court under Articles 226 and 227 of the Constitution of India. 18. A creature of the Constitution of India cannot act in negation of the provisions of the Constitution of India. This Court is reminded of Surya Dev Rai v. Ram ChanderRai1, concerned with the impact of the amendment in Section 115 of the CPC brought about by the amendment of the CPC with effect from 1st July, 2002. In the wake of the said amendment, a question arose, whether on such amendment restricting/limiting the orders of the subordinate courts with respect to 1(2003) 6 SCC 675 Page 7 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Jul-2025 16:59:40 which a revision application under Section 115 of the CPC could be preferred to the High Court, an aggrieved person was completely deprived of the remedy of judicial review under Article 227 also. It was held, that curtailment of revisional jurisdiction of the High Court did not take away and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court, nor was the power of superintendence conferred on the High Court under Article 227 of the Constitution taken away or whittled down. It was further held that the said power continued to exists, untrammelled by the amendment in Section 115 CPC and remained available to be exercised, subject to the rules of self-discipline and practice, which were well settled. Similarly, in State of Gujarat v. Vakhatsinghji Vajesinghji, Vaghela2, Jetha Bai and Sons, Jew Town, Cochin v. Sunderbas Rathenai3, State of H.P. v. Dhanwant Singh4 and Union of India v. Major General Shri Kant Sharma5 it was held that the legislature cannot take away the power of superintendence of the High Court under Article 227 of the Constitution over all Courts and Tribunals which are within the territories in relation to which the High Court exercises its jurisdiction. Rather, in L. Chandra Kumar v. Union of India6, judicial review including under Article 227, was held to be a basic feature of the Constitution, even beyond the realm of amendability and Clause 2(d) of Article 323A and Clause 3(d) of Article