Commercial Court Orders Not Amenable To Writ Of Certiorari: Orissa High Court
The Orissa High Court has ruled that Commercial Courts have the "trapping of a Civil Court" and proceedings before them are civil proceedings. As a result, orders passed by Commercial Courts cannot be challenged through a writ of certiorari under Article 226 of the Constitution.
A division bench of Chief Justice Harish Tandon and Justice Murahari Sri Raman observed:
"Thus, a power is conferred upon the Commercial Courts to try a suit of a specified value, which is in ordinary sense is tried by a Civil Court and the proceedings of such nature is regarded as 'civil proceeding'. Thus, the Commercial Court has a trapping of a Civil Court and the proceeding initiated before it, is regarded as 'civil proceeding'. Such being the spirit of the Act, the order passed by the Commercial Court is regarded as an order of a Civil Court and in view of the embargo created in the larger Bench of the Apex Court in Radhey Shyam (supra) a writ of certiorari under Article 226 of the Constitution of India is not appropriate and/or competent."
The bench, however, clarified that orders passed by commercial courts remain open to challenge under Article 227 of the Constitution, which confers supervisory jurisdiction on the high courts.
The ruling came in an intra-court appeal arising from proceedings under the Arbitration and Conciliation Act, 1996. An arbitral award had been challenged before the Senior Civil Judge (Commercial Court), Bhubaneswar. Along with the challenge under Section 34 of the Act, applications under Section 151 of the Code of Civil Procedure and Section 36(2) of the Arbitration Act were filed separately as interlocutory applications.
While the application under Section 151 remained pending, the commercial court heard the Section 36(2) application. It stayed execution of the arbitral award subject to deposit and bank guarantee conditions.
The Union of India challenged that order by filing a composite petition under Articles 226 and 227 of the Constitution. A single judge set aside the conditional stay granted by the commercial court and ordered an unconditional stay on execution of the award until the Section 34 application was decided. The commercial court was also directed to dispose of the pending application under Section 151 CPC and the Section 34 proceedings. That order was challenged in the present intra-court appeal.
The only issue before the division bench was whether an order passed by a civil court is amenable to challenge under Article 226, particularly through a writ of certiorari.
For answering the said question, the Court relied upon the ruling of the Apex Court in Radhey Shyam & Anr. v. Chhabi Nath & Ors. (2015) which by overruling the earlier decision in Surya Dev Rai v. Ram Chander Rai & Ors. (2003), had held that resorting to Article 226 is not an appropriate remedy against the orders of a Civil Court. The High Court had reiterated the said proposition recently in NKC Projects Pvt. Ltd., Haryana v. Chief Engineer (Roads-1), Bhubaneswar, 2026 LiveLaw (Ori) 33.
The bench then considered whether a Commercial Court established under the Commercial Courts Act, 2015, has the "trapping of a Civil Court" and whether proceedings before it are civil proceedings. Referring to Section 6 of the Act, it observed that Commercial Courts are empowered to try commercial disputes of a specified value that would ordinarily be tried by civil courts. Proceedings before such courts are, therefore, civil proceedings. The orders they pass are also to be regarded as orders of civil courts.
It therefore ruled that orders passed by Commercial Courts cannot be challenged by invoking the High Court's writ jurisdiction under Article 226 through a writ of certiorari. Those orders, however, continue to be amenable to challenge under Article 227.
The bench also expressed concern over the growing practice of filing composite petitions under Articles 226 and 227 of the Constitution. It noted that petitions under Article 226 are registered as writ petitions, while petitions under Article 227 are registered as civil miscellaneous petitions (CMPs).
Since different categories of cases are assigned to different benches under the roster fixed by the Chief Justice, the practice could result in matters being placed before benches without the requisite roster and encourage forum shopping.
"It is a common practice in this Court by assigning the different nomenclature and numbers to an application filed under Article 226 of the Constitution of India, i.e., W.P.(C) and under Article 227 of the Constitution of India, i.e., CMP. The moment a composite application is filed and a particular category is resorted to in registration thereof, it ordinarily goes to a Bench who is assigned the roster/determination to take up such application. It is no longer res integra that the Chief Justice is the master of the roster and assigns the category of the cases to be dealt with by the respective Benches and, thus, the usurpation of the powers not expressly assigned is per se illegal as the order would be termed as an order without jurisdiction."
The bench further observed, "It will also give a leeway to unscrupulous litigants to resort to the forum shopping, which is deprecated in catena of decisions rendered by the Courts of this country. The litigants shall not be permitted to resort to forum non conveniens, nor shall they be permitted to disrupt the jurisdictional framework assigned to the Bench or invite the Court to entertain and pass an order."
Accordingly, the bench set aside the single judge's order. It restored the composite petition to file and directed the Registry to re-register it as a petition under Article 227 by assigning it the appropriate CMP nomenclature.
After re-registration, the matter was directed to be placed before the roster bench dealing with petitions under Article 227. The bench clarified that the petition should be decided independently on its own merits, without being influenced by the observations made either in the single judge's order or in the present judgment.
For Appellant: Senior Advocate Kishore Datta, Advocates Alok Ranjan Mohanty, Sumita Shaw and Chetan Kabra.
For Respondent: Additional Solicitor General N. Venkatraman, Deputy Solicitor General P.K. Parhi and Senior Panel Counsel Biswajit Maharana.