CW/5998/2023 of SHRI SALIM KHAN S/O SHRI AMIN KHAN Vs SHRI YUNUS ALI S/O MAHMOOD ALI on 18 August 2026

Order

18/08/2026

1. Instant Civil Writ Petition under Article 227 of the Constitution of India has been filed by and on behalf of petitioner-defendant No.1 against the order dated 09.11.2022 passed in Civil Suit No.127/2021 by the Civil Judge, Jhunjhunu, dismissing his application under Section 8 of the Arbitration and Conciliation Act, 1996 (for short, ‘the Act of 1996’), wherein prayer was made by petitioner to stay the proceedings of civil suit and to refer the parties to arbitration.

2. Learned counsel appearing on behalf of respondents, at the outset, pointed out that the order refusing to refer the parties to arbitration, passed under Section 8 of the Act of 1996, is appealable under Section 37(1)(a) of the Act of 1996. In support

(2 of 3) [CW-5998/2023] of his contention, counsel for respondents has referred and relied upon the judgment of Hon'ble Supreme Court delivered in case of N N Global Mercantile Pvt. Ltd. Vs. Indo Unique Flame Ltd. & Ors., reported in (2021) 4 SCC 379, wherein in Para No.52 following was observed: "Maintainability of the writ petition

52. We are of the view that the writ petition filed by Respondent 1 to challenge the order dated 18-1-2018 passed by the Special Commercial Court/District Judge-I in Commercial Dispute No. 62/2017 was not maintainable, since a statutory remedy under the amended Section 37 of the Arbitration Act is available. Section 37(1) has been amended by Act 3 of 2016. Section 37(1)(a) provides for an appeal to be filed against an order refusing to refer the parties to arbitration. Section 37(1)(a) reads as: “37. Appealable orders.—(1) An appeal shall lie from the following orders (and from no others) to the court authorised by law to hear appeals from original decrees of the Court passing the order, namely:

(a) refusing to refer the parties to arbitration under Section 8;....."

3. Counsel for petitioner is not in a position to controvert the aforesaid availability of an alternative remedy by way of statutory appeal against the impugned order under Section 37 (1)(a) of the Act of 1996, however, in addition thereto, her submission is that the dispute in the present suit is indeed a commercial dispute, falling under Section 2 (c) (xv) "partnership agreements" of the Commercial Courts Act, 2015, hence, the civil suit filed by respondents may be of the nature of permanent injunction, is not maintainable at all, before the Civil Court.

4. Be that as it may, in the instant writ petition, issue involved is in respect of challenging the order dated 09.11.2022, hence in order to challenge that order, petitioner may avail the remedy of statutory appeal thereagainst as available under Section 37 (1)(a) of the Act of 1996.

(3 of 3) [CW-5998/2023]

5. As far as the question of whether the dispute involved in the present civil suit is a commercial dispute or not is concerned, petitioner is at liberty to move an appropriate application before the trial Court and in case, any such application is filed, same shall be considered and decided by the trial Court, after giving an opportunity of hearing to the plaintiff, in accordance with law.

6. With the aforesaid, instant writ petition stands disposed of.

7. Stay order dated 05.05.2023 is hereby vacated.

8. All pending application(s), if any, stand(s) disposed of. (SUDESH BANSAL),J 72-S/RONAK JAIMAN