# M/S Deep Distributors Pvt. Ltd v. Tigers Brewery Industries Pvt. Ltd

- **Citation:** (2024) 3 ILRA 181
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-20
- **Case number:** Civil Misc. Arbitration Application No. 100 of 2023
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-deep-distributors-pvt-ltd-v-tigers-brewery-industries-pvt-ltd-51623
- **Pages:** 7

## Headnote

Law
-
Arbitration
and
Conciliation Act, 1996 - Sections 9,
2(1)(e), 2(1)(f) - Commercial Courts Act,
2015 - Sections 4 & 10 - Jurisdiction of
Commercial Division - Applicant sought interim
relief under Section 9 to restrain respondent
from breaching a marketing agreement dated
25.07.2018 - Respondent raised preliminary
objection on jurisdiction, arguing Allahabad High
Court, lacking ordinary original civil jurisdiction,
cannot constitute a Commercial Division - Held,
dispute qualifies as international commercial
arbitration under Section 2(1)(f) as respondent
is a Nepal-based company - Section 10(1) of
Commercial
Courts
Act
mandates
that
applications
in
international
commercial
arbitration be heard by Commercial Division of
High Court, irrespective of ordinary original civil
jurisdiction
-
Section
4's
restriction
on
Commercial Division to High Courts with
ordinary original civil jurisdiction does not limit
Section
10's
mandate
for
international
commercial arbitration - ITI Limited Vs Alphion
Corporation followed, affirming Commercial
Division's jurisdiction for such matters -
Allahabad High Court's Commercial Division,
constituted by Chief Justice, has jurisdiction to
hear the application - Preliminary objection
rejected, case listed for hearing. (Para 9-27)

Application
maintainable,
listed
for
hearing.

List of Cases Cited:

## Text

3 All. M/S Deep Distributors Pvt. Ltd. Vs. Tigers Brewery Industries Pvt. Ltd.
181

18. In view of above, Hon'ble
Mr.Justice V.C.Gupta(Former Judge of this
Court), House No.D-862, Omex City,
Raebareli Road, Lucknow (U.P.) Mobile
No.8004928897, is hereby appointed as an
Arbitrator to decide the dispute between the
parties herein.

19. The application is, accordingly,
disposed of.

20. Let a copy of this order be
communicated
forthwith
to
Hon'ble
Mr.Justice V.C.Gupta, House No.D-862,
Omex City, Raebareli Road, Lucknow
(U.P.) Mobile No.8004928897.
----------
(2024) 3 ILRA 181
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.03.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Civil Misc. Arbitration Application No. 100 of
2023

M/S Deep Distributors Pvt. Ltd.
 ...Applicant
Versus
Tigers Brewery Industries Pvt. Ltd.
 ...Opposite Party

Counsel for the Applicant:
Pritish Kumar, Amal Rastogi

Counsel for the Opposite Party:
Amrenra Nath Tripathi, Ajay Kumar Mishra

Arbitration
Law
-
Arbitration
and
Conciliation Act, 1996 - Sections 9,
2(1)(e), 2(1)(f) - Commercial Courts Act,
2015 - Sections 4 & 10 - Jurisdiction of
Commercial Division - Applicant sought interim
relief under Section 9 to restrain respondent
from breaching a marketing agreement dated
25.07.2018 - Respondent raised preliminary
objection on jurisdiction, arguing Allahabad High
Court, lacking ordinary original civil jurisdiction,
cannot constitute a Commercial Division - Held,
dispute qualifies as international commercial
arbitration under Section 2(1)(f) as respondent
is a Nepal-based company - Section 10(1) of
Commercial
Courts
Act
mandates
that
applications
in
international
commercial
arbitration be heard by Commercial Division of
High Court, irrespective of ordinary original civil
jurisdiction
-
Section
4's
restriction
on
Commercial Division to High Courts with
ordinary original civil jurisdiction does not limit
Section
10's
mandate
for
international
commercial arbitration - ITI Limited Vs Alphion
Corporation followed, affirming Commercial
Division's jurisdiction for such matters -
Allahabad High Court's Commercial Division,
constituted by Chief Justice, has jurisdiction to
hear the application - Preliminary objection
rejected, case listed for hearing. (Para 9-27)

Application
maintainable,
listed
for
hearing.

List of Cases Cited:

1. ITI Ltd. Vs Alphion Corporation; Commercial
Appeal No. 22 of 2022, decided on 25.02.2022
(Karnataka High Court)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Pritish Kumar, Advocate
assisted by Sri Amal Rastogi for the
petitioner and Sri Amrendra Nath Tripathi
assisted by Sri Akash Mishra for the
respondents.

2. The petitioner has invoked the
jurisdiction of this court by filing an
application
under
section
9
of
the
arbitration and conciliation act, 1996
seeking to restrain the respondents from
importing, exporting marketing and selling
the Beer manufactured by the respondents
in violation of the agreement dated
25/07/2018.
182 INDIAN LAW REPORTS ALLAHABAD SERIES

3. On notices being issued, the
respondents have put in appearance, and
raised preliminary objection with regard to
the jurisdiction of this Court to entertain the
instant application. It is submitted that a
Commercial Division can be constituted
only in a High Court having ordinary civil
jurisdiction and not otherwise, and the
Allahabad High Court which does not have
original civil jurisdiction, the Commercial
Division could not be constituted, and
application therefore can be entertained
only by a Bench having jurisdiction to hear
appeal from degrees of subordinate courts.

4. Counsel the petitioner, on the other
hand,
has
opposed
the
preliminary
objection raised by the respondents and
submitted that the present petition pertains
to "International Commercial Arbitration"
and the same has to be filed in the High
Court as per the provisions contained in
section 10 (1) of the Commercial Courts
Act, 2015. It has further been submitted
that the value of the present dispute is
about to ₹ 10 crores which is above the
threshold limit of ₹ 3 lakhs as per the
provisions contained in section 2(1)(i) of
the Commercial Courts Act, 2015 it is a
"commercial dispute" as per section 12 of
the act of 2015. It was further submitted
that Commercial Division of the High
Court has been duly constituted by the
Chief Justice and consequently this Court,
exercising
jurisdiction of
Commercial
Division of the High Court would have
jurisdiction to consider an application
under section 9 of the Arbitration and
Conciliation act, 1996.

5. It was further submitted that this
aspect of the matter was duly considered by
a bench of the Karnataka High Court in the
case
of
ITI
Limited
vs
Alphion
Corporation in Commercial Appeal No.
22 of 2022 which was decided on
25/02/2022 and it was held that in terms of
section 10 (1) of the Commercial Courts
Act
challenge
to
an
international
commercial arbitral award would have to
be considered by the Commercial Division
establishing High Court consisting of a
Single Judge, and therefore the present
dispute similar provisions will apply, and
the application would be cognizible before
the Commercial Division of this Court.

6. I heard the counsel the parties and
perused the record. Learned counsel for the
parties have jointly requested that the
preliminary issue be decided at the outset
before considering the application on
merits.

7. The present dispute has his roots in
the memorandum of understanding dated
25/07/2018 entered between the petitioner
and the respondent whereby the petitioner
company was given exclusive rights of
marketing, distribution and sale of beer of
certain brands as stated therein. According
to the petitioners despite grant of exclusive
rights for marketing and distribution of
beer, the respondent in violation of the
aforesaid agreement have entered into
new marketing agreement with different
companies. It is in the aforesaid
circumstances that application under
Section
9
of
the
Arbitration
&
Conciliation Act, 1996 has been filed by
the petitioner seeking to restrain the
respondent.

8. The value of the dispute is more
than the specified value of ₹ 3 lakhs, and as
per the rejoinder affidavit filed by the
petitioner is Rs. 10 crores and therefore it
will
fall
within
the
definition
of
'commercial dispute' as per section 2(1)
and 2(ix), (xviii) of the Act of 2015.
3 All. M/S Deep Distributors Pvt. Ltd. Vs. Tigers Brewery Industries Pvt. Ltd.
183

9. The matter pertains to International
Commercial Arbitration in terms of section
2(1)(f) of the arbitration and conciliation
act, 1996 which is reproduced hereinunder:
-

(f)
"international
commercial
arbitration" means an arbitration relating
to
disputes
arising
out
of
legal
relationships, whether contractual or not,
considered as commercial under the law in
force in India and where at least one of the
parties is- (i) an individual who is a
national of, or habitually resident in, any
country other than India; or (ii) a body
corporate which is incorporated in any
country other than India; or (iii) 2*** an
association or a body of individuals whose
central
management
and
control
is
exercised in any country other than India;
or (iv) the Government of a foreign
country;"

10. The respondent company has
registered office at Sukhanagar-10 Butwal,
Nepal i.e outside the territory of Republic
of India and, therefore, would come within
the purview of section 2 (1) (f) (ii) since
one of the parties is a body corporate
incorporated in the country other than
India.

11. According to clause 8 of the
memorandum
of
understanding
dated
28/02/2018 it has been provided that in the
event of any dispute between both the
parties the matter shall be referred for
arbitration as per the Arbitration &
Conciliation Act, 1996 and the proceedings
shall be carried at Lucknow. The seat of
arbitration is in Lucknow and therefore in
terms of section 2(2) of the Arbitration &
Conciliation Act,
1996
the
arbitration
proceedings between the parties would fall
within the scope of part I of the Arbitration &
Conciliation Act of 1996, and any application
under section 9 would be heard and decided
by the "Court" as per section 2(f) of the Act
of 1996 which as is as follows:-

(e) "Court" means- (i) in the case
of an arbitration other than International
Commercial Arbitration, the Principal Civil
Court of original jurisdiction in a district,
and includes the High Court in exercise of its
ordinary original civil jurisdiction, having
jurisdiction to decide the questions forming
the subject-matter of the arbitration if the
same had been the subject-matter of a suit,
but does not include any Civil Court of a
grade inferior to such principal Civil Court,
or any Court of Small Causes;

(ii) In the case of international
commercial arbitration, the High Court in
exercise of its ordinary original civil
jurisdiction, having jurisdiction to decide the
questions forming the subject-matter of the
arbitration if the same had been the subjectmatter of a suit, and in other cases, a High
Court having jurisdiction to hear appeals
from decrees of courts subordinate to that
High Court;"

12. A perusal of the aforesaid provision
would indicate that in case of international
commercial arbitration, the High Court
having jurisdiction to hear appeals from
degrees of courts subordinate to that court
would have jurisdiction to decide the matter,
and as per section 10 (1) of the Commercial
Courts Act in an international commercial
arbitration all applications arising out of such
arbitration shall be heard and decided by the
commercial
division
having
been
constituted in such High Court.

13. The controversy in the present
case has arisen on account of the fact that
this Court does not exercise of original civil
jurisdiction like the presidency Courts of
184 INDIAN LAW REPORTS ALLAHABAD SERIES
Bombay, Calcutta, Madras and the High
Court of Delhi where the application would
be cognizible before a Bench having been
assigned the jurisdiction to decide the
question forming subject matter of the
arbitration if the same had been subject
matter of a suit, while in all other cases, the
Bench
of
the
High
Court
having
jurisdiction to hear appeals from degrees of
court subordinate to the High Court.

14. Chapter 2 of the commercial
Courts act deals with the Constitution of
the
Commercial
Court,
Commercial
Appellate courts, Commercial Divisions
and Commercial Appellate Divisions.

15. With regard to the jurisdiction in
respect of arbitration matters particularly
international
commercial
arbitration
Section 10 of the Commercial Courts Act
provides:-

"10. Jurisdiction in respect of
arbitration matters.-Where the subjectmatter of an arbitration is a commercial
dispute of a Specified Value and--

(1) If such arbitration is an
international commercial arbitration, all
applications or appeals arising out of such
arbitration under the provisions of the
Arbitration and Conciliation Act, 1996 (26
of 1996) that have been filed in a High
Court, shall be heard and disposed of by
the Commercial Division where such
Commercial Division has been constituted
in such High Court."

16. Accordingly, in respect of
international commercial arbitration all
applications that have been filed in the
High Court shall be disposed of by
Commercial Division of the High Court,
and, therefore, the present case has been
listed before this Court. There is no dispute
that applications pertaining to International
Commercial Arbitration shall be cognizible
before
the
High
Court,
and
more
particularly
before
the
Commercial
Division which has been constituted by the
Chief Justice.

17. Section 4 deals with the
Constitution of the Commercial Division of
the High Court. Section 4 of Commercial
Court Act, 2015 is as under:-

"4. Constitution of Commercial
Division of High Court.-(1) In all High
Courts, having [ordinary original civil
jurisdiction], the Chief Justice of the High
Court may, by order, constitute Commercial
Division having one or more Benches
consisting of a single Judge for the purpose
of exercising the jurisdiction and powers
conferred on it under this Act.

(2) The Chief Justice of the High
Court shall nominate such Judges of the
High Court who have experience in dealing
with commercial disputes to be Judges of
the Commercial Division."

18.

Therefore,
considering
the
aforesaid provisions, it is borne out that
under
the
Commercial
Courts
Act
Commercial Courts can be constituted at
the District Judge level or court below the
District Judge level as per provisions of
Section 3 of the Commercial Courts Act by
the State Government in consultation with
the High Court. Section 3A provides for
designation
of
Commercial
Appellate
Courts in those States which do not have
ordinary original civil jurisdiction at the
level of the District Judge.

19. According to section 4 of the
Commercial Courts Act, all High Courts
having ordinary original civil jurisdiction
may
constitute
Commercial
Division
3 All. M/S Deep Distributors Pvt. Ltd. Vs. Tigers Brewery Industries Pvt. Ltd.
185
Courts consisting of a Single Judge. From a
bare reading of the aforesaid provision it is
clear that a Commercial Division is sought
to be constituted only in those High Courts
exercising
ordinary
original
civil
jurisdiction.

20. Section 5 of the Commercial
Courts Act makes provision for constitution
of the commercial appellate division which
is as follows:-

"5. Constitution of Commercial
Appellate Division.-
(1)
After
issuing
notification
under
subsection (1) of section 3 or order under
sub-section (1) of section 4, the Chief
Justice of the concerned High Court shall,
by order, constitute Commercial Appellate
Division having one or more Division
Benches for the purpose of exercising the
jurisdiction and powers conferred on it by
the Act.

(2) The Chief Justice of the High
Court shall nominate such Judges of the
High Court who have experience in dealing
with commercial disputes to be Judges of
the Commercial Appellate Division."

21. According to Section 5 of the
Commercial Courts Act the Chief Justice
has been empowered to constitute the
Commercial Appellate Division. A bare
perusal of section 5 would indicate that
Commercial Appellate Division has been
sought to be constituted in all the High
Courts
irrespective
of
whether
they
exercise ordinary original civil jurisdiction
or not.

22. The provision for appeal has been
made in chapter IV of the Act of 2015, and it
provides for appeal against a judgement or
order of Commercial Court below the level of
District Judge, to the Commercial Appellate
Court, and against the judgement of a
Commercial Court at the level of District
Judge exercising original jurisdiction or by
Commercial Division of the High Court the
appeal would lie to the Commercial Appellate
Division of the High Court. Proviso 2 of
Section 13(1A) of the Commercial Courts
Act restricts intra Court appeals from the
Commercial Division of a High Court to its
Commercial Appellate Division, only to those
orders of the Commercial Division, which are
specifically enumerated under Order 43 of
the Code of Civil Procedure 1908 as
amended by the Commercial Courts Act and
Section 37 of the Arbitration and Conciliation
Act 1996.

23. The aforesaid provisions when read
with Section 10 of the Commercial Courts
Act makes it clear that the special provision
has been made with regard to the arbitration
matters. According to section 10 (1) if the
arbitration is an international commercial
arbitration all applications or appeals arising
out of such arbitration, that have been filed in
the High Court, shall be heard and disposed
of by the Commercial Division where such
Commercial Division has been constituted, as
per section 10 (2) in the case of domestic
arbitration then the application or appeals
would have to be filed on the original site of
the High Court and shall be heard and
disposed of by the Commercial Division
where such Commercial Division has been
constituted by the High Court, and, lastly, in
all cases other than international commercial
arbitration, which would lie be before any
principal civil court of original jurisdiction,
would be heard and disposed of by the
Commercial
Division
bench
has
Commercial Court where it has been
constituted.

24. Even though as per section 4 of
the Commercial Courts Act, a provision has
186 INDIAN LAW REPORTS ALLAHABAD SERIES
been made for constitution of Commercial
Division only for the High Courts having
ordinary original and civil jurisdiction, but
the special provision has been carved in
Section
10
with
regard
to
matters
pertaining to international commercial
arbitration, where all applications and
appeals have to be disposed of by the
Commercial Division of the High Court.
Section 10 does not distinguish between
High Courts having ordinary original civil
jurisdiction and High Courts which do not
have ordinary civil jurisdiction. Therefore,
a Commercial Division would have to be
created in all the High Courts for disposal
of applications pertaining to international
commercial arbitrations.

25. The Karnataka High Court in the
case of Karnataka High Court in the case
of ITI Limited vs Alphion Corporation in
commercial appeal No. 22 of 2022 which
was decided on 25/02/2022 has also taken a
similar view, and the observations are
contained in 51 which is quoted as under:-

"51.1 Hence, we answer the
questions raised as under:

51.1 A challenge to an award
passed in an International Commercial
Arbitration can be made before the High
Court of Kamataka in view of Section 2
(e)(ii) of the A & C Act, 1996.

51.2 In terms of Section 10 (1) if
the CC Act, a challenge to an International
Commercial Arbitral Award would have to
be considered by a Commercial Division
established in the High Court consisting of
a Single Judge.

51.3 The Commercial Divisions
were constituted as a special Division, the
ordinary
limitation
of
the
pecuniary
Jurisdiction for the exercise of powers of
the Single Judge would not apply and the
pecuniary jurisdiction would be unlimited.

"51.4 Section 37 of the A & C Act
mandates the provision of an Appellate
remedy, the Commercial Appellate Division
which exercises Jurisdiction under Section
37 of the A & C Act, 1996 would also be
the forum for challenging a decision of the
Commercial Division of the High Court.

51.5 The classification of cases
now existing is not sufficient to cater to the
Challenge made to an award in any
International Commercial Arbitration. A
fresh Classification would have to be made
as regards such proceedings. One relating
to proceedings under Section 34 as regards
the
Challenge
to
an
International
Commercial Arbitral Award and another
relating to the orders of the Commercial
Divisions challenging the Order passed
under Section 9 of the A& C Act as regards
International Commercial Contracts or
Arbitral Proceedings.

51.6 Any Proceedings seeking for
the
execution
of
an
International
Commercial Arbitral Award or seeking for
interim relief in respect of International
Commercial Arbitration would also have to
be dealt with by the Commercial Division
comprising of a Single Judge.

51.7 All pending proceedings
which meet the above criteria pending
before the Commercial Appellate Division
are
directed to
be reclassified and
transferred to the Single Judge exercising
jurisdiction
over
the
Commercial
Division."

26. The objects and reasons of
Commercial Courts Act, 2015 is to provide
for speedy disposal of the commercial
disputes to create a positive image to the
investor worldwide about the independence
and
responsive
Indian
legal
system.
Applications and appeals in case of
international commercial arbitration lies
under jurisdictional ambit of commercial
3 All. Devendra Vs. The State of U.P.
187
division
and
constitution
of
such
commercial division only in High Courts
having ordinary original civil jurisdiction will
narrow down commercial divisions only to five
States which in turn will defeat the object of
Commercial Courts Act, 2015.

27. Therefore, from the above, it is clear that
an application in the matters pertaining to
international commercial arbitration would lie to
the Commercial Division of the High Court where
it has been constituted. In the Allahabad High
Court, the Chief Justice has constituted a
Commercial Division, and the present application
having been filed before the Commercial Division
is accordingly maintainable before this Court.

28. Accordingly, list this case on
3.4.2024 for hearing.
----------
(2024) 3 ILRA 187
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.02.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 22 of 1992

Devendra ...Appellant
Versus
The State of U.P. ...Respondent

Counsel for the Appellant:
Sri Ram Babu, Sri Amit Kumar Srivastava,
Sri Ram Babu Sharma, Sri Ravi Kant, Sri
Sanjay Agarwal, Sri Vijit Saxena

Counsel for the Opposite Party:
G.A.

(A)
Criminal
Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Sections 364 - kidnapping or abducting in
order to murder, Section 302 - murder,
The Code of criminal procedure, 1973 -
Section 374(2) - Circumstantial Evidence -
Last
Seen
Theory
-
Extra-Judicial
Confession - enmity - unexplained delay in
FIR - benefit of doubt
 -
Conviction
cannot rest solely on weak circumstantial
evidence like last seen theory and extrajudicial confessions - For a finding of guilt,
all circumstances must form a complete
and unbroken chain - If inconsistencies or
doubts arise in witness statements and
other circumstantial evidence, benefit of
doubt should be extended to the accused -
more serious the offence, the stricter the
degree of proof or in other words the
graver the offence, the stricter is the
standard of proof. (Para - 32,33)

(B)
Indian
Evidence
Act,
1872
-
Circumstantial evidence - where a case
rests squarely on circumstantial evidence
- the inference of guilt can be justified
only when all the incriminating facts and
circumstances
are
found
to
be
incompatible with the innocence of the
accused or the guilt of any other person -
Circumstances from which an inference as
to the guilt of the accused is drawn, have
to be proved beyond reasonable doubt
and have to be shown to be closely
connected with the principal fact sought
to
be
inferred
from
those
circumstances.(Para - 9)

Appellant was accused of carrying away victim -
on pretext of watching Ramleela - later allegedly
killing him due to longstanding enmity -
Witnesses testified seeing them together and
later heard gunshots - deceased's body was
found the following morning with gunshot
wounds - Trial court convicted appellant based
on circumstantial evidence - including last seen
theory and extra-judicial confession. (Para 3-5,
15)

HELD: - Evidence of witnesses of last seen as
well as PW-10, the witness of extra-judicial
confession, are not of such quality that on the
basis of their evidence, the conviction of the
accused can be recorded for a charge under
Section 364 and 302 IPC. Court set aside