State of Sikkim vs Nimmi Oberoi
- Court
- High Court of Sikkim
SKHC010001322026
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Revisional Jurisdiction)
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SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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CRP No. 6 of 2026
State of Sikkim,
Through the Secretary,
Tourism & Civil Aviation Department,
Government of Sikkim,
Gangtok,
Sikkim.
Pin - 737101.
….. Petitioner
versus
Nimmi Oberoi ,
Hotel Norkhil Campus,
Paljor Stadium Road,
Gangtok,
East Sikkim,
Pin – 737101. ..... Respondent
Revision Petition under Section 115 of the
Code of Civil Procedure, 1908
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Appearance:
Mr. Zangpo Sherpa, Additional Advocate General for the State
Petitioner.
Mr. Debarshi Dutta, Advocate (through V.C.) with Ms K.D. Bhutia,
Advocate for the respondent.
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st
Date of hearing : 21 August, 2026
nd
Date of judgment : 2 September, 2026
rd
Order uploaded on: 3 September, 2026
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CRP No. 06 of 2026 2
State of Sikkim vs. Nimmi Oberoi
O R D E R
Bhaskar Raj Pradhan, J.
The State of Sikkim invokes the provision of Section 115
of the Code of Civil Procedure, 1908 (CPC) to assail the impugned
order dated 13.04.2026 passed by the learned Commercial Court at
Mangan in Arbitration Case No.1 of 2026.
2. The State of Sikkim prays for transfer of Commercial
Arbitration Case No.1 of 2026 to another district.
3. The necessary facts for disposal of the present case is
on a narrow compass. On 15.05.2021, the respondents filed an
application under Section 9(ii) of the Arbitration and Conciliation
Act, 1996 (the Arbitration Act) before the learned Commercial Court,
East Sikkim at Gangtok, seeking interim relief of injunction. On
31.05.2021, the learned Commercial Court passed an order
restraining the State of Sikkim from disturbing the respondent’s
possession and enjoyment of leased premises until commencement
of the arbitration proceedings. According to the petitioner, the
present Presiding Officer who passed the impugned order dated
13.04.2026 was also the same Presiding Officer who injuncted the
State of Sikkim vide order dated 31.05.2021 in the application
under Section 9(ii) of the Arbitration Act and he decided the said
application extensively on the merits of the case. Thereafter, the
State of Sikkim had assailed the order dated 31.05.2021 passed by
the learned Commercial Court at Gangtok before this Court and this
CRP No. 06 of 2026 3
State of Sikkim vs. Nimmi Oberoi
Court had allowed the appeal filed by the State of Sikkim. However,
the judgment passed by this Court allowing the appeal of the State
of Sikkim was interfered by the Supreme Court which allowed the
appeal of the respondent, set aside the impugned judgment of this
Court and appointed a sole arbitrator to settle the dispute between
the parties. The Sole Arbitrator passed an Award dated 05.12.2022
against the State of Sikkim. The State of Sikkim therefore preferred
an appeal under Section 34 of the Arbitration Act before the
Commercial Court at Gangtok. On 28.10.2025, the learned Judge,
Commercial Court at Gangtok recused from hearing the case on the
ground that the counsel for the respondent was his spouse. This
Court vide office order no. 149/JUDL.HCS dated 25.02.2026 in the
administrative side transferred the appeal under Section 34 of the
Arbitration Act to the Commercial Court at Mangan. Thereafter, the
Commercial Court at Mangan passed the impugned order dated
13.04.2026.
4. The learned Commercial Court in the impugned order
dated 13.04.2026 opined that hearing of an earlier application
seeking certain interim measures/orders concerning the same
matter cannot be a ground for recusal of the Presiding Judge.
Accordingly, the prayer for recusal was rejected. The State of Sikkim
is aggrieved and therefore, the present petition.
5. Heard the learned Additional Advocate General for the
State of Sikkim. It is contended by him that as the learned Judge,
Commercial Court at Mangan had decided the application under
CRP No. 06 of 2026 4
State of Sikkim vs. Nimmi Oberoi
Section 9(ii) of the Arbitration Act extensively on merits, he ought
not to hear the present appeal under Section 34 of the Arbitration
Act as the learned Judge had already made up his mind on the
merits of the case and rendered the findings against the State of
Sikkim in the earlier order dated 31.05.2021.
6. Mr. Debarshi Dutta, learned Counsel for the respondent
on the other hand vehemently objects to the present revision
petition on several grounds. Firstly, it is contended that the
impugned order is an interim order and therefore not assailable
under Section 115 of the CPC. Secondly, it is contended that merely
because the learned Presiding Judge had decided on an application
under Section 9(ii) of the Arbitration Act earlier, he cannot be asked
to recuse from hearing the appeal under Section 34 of the
Arbitration Act. Finally, it is contended that the State of Sikkim has
not been able to show any inherent bias which would preclude the
learned Judge, Commercial Court at Mangan to hear the appeal.
7. Section 115 of the CPC permits the High Court to call for
the records of any case pending in any Court subordinate to such
High Court in which no appeal lies and if such subordinate Court
appears - (a) to have exercised a jurisdiction not vested in it by law,
or (b) to have failed to exercise a jurisdiction so vested, or (c) to
have acted in the exercise of its jurisdiction illegally or with material
irregularity.
CRP No. 06 of 2026 5
State of Sikkim vs. Nimmi Oberoi
8. The proviso to Section 115 of the CPC states that the
High Court “shall not”, under this Section, vary or reverse any order
made, or any order deciding an issue, in the course of a suit or
other proceedings, except where the order, if it had been made in
favour of the party applying for revision, would have finally disposed
of the suit or other proceedings. The explanation further provides
that the expression, “any case which has been decided” includes any
order made, or any order deciding an issue, in the course of a suit
or other proceedings.
1
9. In DLF Housing & Construction Co. Pvt. Ltd. vs. Sarup Singh , the
Supreme Court had stated that:
““ The position thus seems to be firmly established that
while exercising the jurisdiction under Section 115, it is not
competent to the High Court to correct errors of fact
however gross or even errors of law unless the said errors
have relation to the jurisdiction of the Court to try the
dispute itself. Clauses (a) and (b) of this section on their
plain reading quite clearly do not cover the present case. It
was not contended, as indeed it was not possible to
contend, that the learned Additional District Judge had
either exercised a jurisdiction not vested in him by law or
had failed to exercise a jurisdiction so vested in him, in
recording the order that the proceedings under reference
be stayed till the decision of the appeal by the High Court
in the proceedings for specific performance of the
agreement in question. Clause (c) also does not seem to
apply to the case in hand. The words "illegally" and "with
material irregularity" as used in this clause do not cover
either errors of fact or of law; they do not refer to the
decision arrived at but merely to the manner in which it is
reached. The errors contemplated by this clause may, in
our view, relate either to breach of some provision of law
or to material defects of procedure affecting the ultimate
decision, and not to errors either of fact or of law, after the
1
(1972) SCR 368
CRP No. 06 of 2026 6
State of Sikkim vs. Nimmi Oberoi
prescribed formalities have been complied with. The High
Court does not seem to have adverted to the limitation
imposed on its power under Section 115 of the Code.
Merely because the High Court would have felt inclined,
had it dealt with the matter initially, to come to a different
conclusion on the question of continuing stay of the
reference proceedings pending decision of the appeal,
could hardly justify interference on revision under Section
115 of the Code when there was no illegality or material
irregularity committed by the learned Additional District
Judge in his manner of dealing with this question. It seems
to us that in this matter the High Court treated the revision
virtually as if it was an appeal .” at Pg.373 .”
10. The Amendment Act, 1999 which amended the proviso
to Section 115(1) so as to delete clause (b) has the effect of barring
interference in revision against interlocutory orders even where
there is failure of justice or irreparable injury. This was done and
intended to cut the number of revisions.
2
11. In Tek Singh vs. Shashi Verma And Anr . , the Supreme
Court opined that from a reading of the proviso after 1999, revision
petition filed under Section 115 of the CPC are not maintainable
under interlocutory orders.
12. The impugned order of refusal to recuse from the case
even if it was decided in favour of the State of Sikkim would not
have disposed of the suit or other proceedings. All that it would
result in would be a change of the Presiding Officer or the Court.
However, neither the suit nor other proceeding would be disposed
of. Therefore, I am in agreement with the objection raised by the
2
Civil Appeal No.1416 of 2019
CRP No. 06 of 2026 7
State of Sikkim vs. Nimmi Oberoi
learned Counsel for the respondent that this is not a case in which
the revisional powers under Section 115 of the CPC ought to be
exercised.
13. In Neelam Manmohan Attavar vs. Manmohan Attavar (dead)
3
through Legal Representatives , the applicant-petitioner-in-person
submitted before the Supreme Court that one of the honourable
Judges should recuse himself from hearing the application to which
the Supreme Court opined:
“ 3. We see no valid and good ground for recusal by one of
us. Merely because the order might not be in favour of the
applicant earlier, cannot be a ground for recusal. A litigant
cannot be permitted to browbeat the Court by seeking a
Bench of its choice. Therefore, the prayer of the applicant-
petitioner-in-person that one of us (Dr. Dhananjaya Y.
Chandrachud, J.) should recuse from hearing the present
miscellaneous application is not accepted and the said
prayer is rejected .”
14. I am also of the considered view that the learned Judge
who decided the application under Section 9 of the Arbitration Act
does not have to automatically recuse from subsequently hearing
the appeal under section 34 arising from the same arbitration unless
the State of Sikkim is able to demonstrate a real and reasonable
apprehension of bias. If an application for recusal is permitted on
the mere asking on the ground that the learned Judge had decided
one way or the other earlier on an application under Section 9 of the
Arbitration Act, it would lead to the party choosing their Judge which
would not be proper for administration of justice. An application
under Section 9 and an appeal under Section 34 of the Arbitration
3
(2021) 3 SCC 727
CRP No. 06 of 2026 8
State of Sikkim vs. Nimmi Oberoi
Act involves different inquiries. Section 9 deals with interim and
protective measures while Section 34 is an appeal to set aside the
award under limited statutory grounds.
15. It may also be relevant to examine whether the learned
Judge while deciding the application under Section 9 finally
adjudicated an issue directly central to an appeal under Section 34
and made findings that effectively amounted to conclusion on the
validity or legality of the arbitral award or express strong views on
the merit of the case which lays down a strong foundation of the
charge of bias against him.
16. The paragraphs of the order dated 31.05.2021 passed
by the learned Judge, Commercial Court on 31.05.2021 which
troubled the State of Sikkim and quoted in the petition under
Section 115 of the CPC, clearly reflects that he was conscious of the
jurisdiction in interpreting the various clauses of the agreement at
the stage of Section 9 of the Arbitration Act. The learned Judge
carefully examined clauses thereof “ for the limited purpose of
deciding the present petition ” and gave his “ prima facie ” opinion on
it. I am, therefore, unable to agree with the learned Additional
Advocate General that merely because the learned Judge reflected
his prima facie opinion on the clauses of the agreement while
deciding the application under Section 9, he would be biased against
the State of Sikkim while deciding an application under Section 34 of
the Arbitration Act.
CRP No. 06 of 2026 9
State of Sikkim vs. Nimmi Oberoi
17. Under the circumstances, I am of the view that the
present revision petition filed by the State of Sikkim must fail. It is
accordingly rejected. Parties may bear their own cost. This order
may be sent to the Court of the learned Judge, Commercial Court at
Mangan for information.
(Bhaskar Raj Pradhan)
Judge
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