//
you're reading...
legal issues

The provisions of Chapter I of Part II of the 1996 Act along with the provisions of the Foreign Awards, Recognition and Enforcement Act, 1961, insofar as relevant for the present are placed below in a tabular form: PART II ENFORCEMENT OF CERTAIN THE FOREIGN AWARDS FOREIGN AWARDS (RECOGNITION AND ENFORCEMENT) ACT, 1961 CHAPTER I NEW YORK CONVENTION AWARDS 2. Definition.–In this Act, unless the 44. Definition.–In this Chapter, unless context otherwise requires, “foreign the context otherwise requires, “foreign

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.11945 OF 2010
FUERST DAY LAWSON LTD. … PETITIONER
VERSUS
JINDAL EXPORTS LTD. … RESPONDENT
WITH

 
SPECIAL LEAVE PETITION (CIVIL) NO.13625 OF 2010
FUERST DAY LAWSON LTD. … PETITIONER
VERSUS
JINDAL EXPORTS LTD. … RESPONDENT

 
WITH
SPECIAL LEAVE PETITION (CIVIL) NOS.13626-13629 OF 2010
JINDAL EXPORTS LIMITED … PETITIONER
VERSUS
FUERST DAY LAWSON … RESPONDENT
2

 

 

WITH
SPECIAL LEAVE PETITION (CIVIL) NOS.22318-22321 OF 2010
ITE INDIA P. LTD. … PETITIONER
VERSUS
MUKESH SHARMA & ORS. … RESPONDENTS

 
WITH
CIVIL APPEAL NO.5156 OF 2011

[ARISING OUT OF SLP (CIVIL) NO.31068 OF 2009]
SHIVNATH RAI HARNARAIN

INDIA COMPANY … APPELLANT
VERSUS
GLENCORE GRAIN ROTTERDAM … RESPONDENT
WITH
CIVIL APPEAL NO.5157 OF 2011

[ARISING OUT OF SLP (CIVIL) NO.4648 OF 2010]
TINNA FINEX LTD. … APPELLANT

VERSUS
NATIONAL ABILITY S.A. & ANR. … RESPONDENTS
3

 

 

AND
CIVIL APPEAL NO.36 OF 2010
SEA STREAM NAVIGATION LTD. … APPELLANT
VERSUS
LMJ INTERNATIONAL LTD. … RESPONDENT

 

 

J U D G M E N T

 

 

AFTAB ALAM, J.

 

 

1. Leave granted in SLP (C) No.31068 of 2009 and SLP (C) No.4648 of
2010.
2. The common question that arises for consideration by the Court in this
batch of cases is whether an order, though not appealable under section 50 of
the Arbitration and Conciliation Act, 1996 (hereinafter “1996 Act”), would
nevertheless be subject to appeal under the relevant provision of the Letters
Patent of the High Court. In other words even though the Arbitration Act
does not envisage or permit an appeal from the order, the party aggrieved by
it can still have his way, by-passing the Act and taking recourse to another
jurisdiction.
4

 
3. Mr. C.A. Sundaram, senior advocate, however, who led the arguments
on behalf of the appellants, would like to frame the question differently. He
would ask whether there is any provision in the 1996 Act that can be said to
exclude the jurisdiction of the High Court under its Letters Patent either
expressly or even impliedly. He would say that the jurisdiction of the High
Court under the Letters Patent is an independent jurisdiction and as long as
the order qualifies for an appeal under the Letters Patent an appeal from that
order would be, undoubtedly, maintainable before the High Court.
4. A correct answer to both the questions would depend upon how the
1996 Act is to be viewed. Do the provisions of the 1996 Act constitute a
complete code for matters arising out of an arbitration proceeding, the
making of the award and the enforcement of the award? If the answer to the
question is in the affirmative then, obviously, all other jurisdictions,
including the letters patent jurisdiction of the High Court would stand
excluded but in case the answer is in the negative then, of course, the
contention of Mr. Sundaram must be accepted.
5. The batch presently before the Court originally consisted of nine
cases, out of which SLP (C) No.16908 of 2010 ended in compromise
between the parties. Of the remaining eight cases, SLP (C) No.13625 of
2010 and SLP (C) No.11945 of 2010 are unrelated and have been wrongly
5

 
put in this batch. These two SLPs are filed against a common judgment
passed by a single judge of the Delhi High Court insofar as though allowing
the petitioners’ application for enforcement of two foreign awards, the High
Court declined to pass any order for payment of interest on the awarded
amounts payable to the petitioners. These two cases are, therefore, directed
to be de-tagged and listed separately. This leaves behind six cases. At the
conclusion of hearing, one of the cases, being SLP (C) No.31067 of 2009
was directed, on the prayer made by the counsel for the petitioner, to be de-
linked from the batch and to be listed separately. It, however, appears that
the direction was wrongly obtained since that case and another case in the
batch, SLP (C) No.31068 of 2009 arise from a common order and SLP (C)
No.31067 of 2009 would also be fully governed by this judgment. Be that as
it may, the direction for de-linking is already made and, hence, that case will
be separately listed and dealt with in due course. Of the remaining five cases
four come from the Delhi High Court and one from the Calcutta High Court.
In SLP (C) No.4648 of 2010 and SLP (C) No.31068 of 2010, the
applications filed by the respective respondents in these cases, for
enforcement of the foreign award in their favour were allowed by orders
passed by a single judge of the High Court. Against the orders of the single
judge, the petitioners in these SLPs filed appeals before the division bench
6

 
of the High Court. All the appeals were taken together and dismissed by a
common order as not maintainable. The petitioners have come before this
Court against the order passed by the division bench only, on the question of
maintainability of their appeals. Civil Appeal No.36 of 2010 coming from
the Calcutta High Court is opposite of the aforementioned two SLPs coming
from the Delhi High Court. In this case, against an order passed by a single
judge of the High Court, by which he granted relief for enforcement of a
foreign award, an appeal was preferred before the division bench of the High
Court. The appeal was admitted but a preliminary objection was raised in
regard to its maintainability in view of section 50 of the 1996 Act. The
division bench by order dated May 8, 2007 rejected the preliminary
objection holding that the appeal was maintainable.
6. In SLP (C) Nos.22318-22321 of 2010 a single judge of the Delhi High
Court dismissed the suit filed by the petitioner and allowed the application
filed by defendant nos.3-5 referring the parties to arbitration in terms of
section 45 of the 1996 Act. The petitioner’s appeal before the division bench
was dismissed as not maintainable. The SLP (C) Nos. 22318-22321 of 2010
are filed under Article 136 of the Constitution challenging orders passed by
both the division bench and the single judge of the High Court.
7

 
7. The petitioner in SLP (C) Nos.13626-13629 of 2010 is the respondent
in SLP (C) No.13625 of 2010 and SLP (C) No.11945 of 2010 which have
been held to be unrelated to the batch. Against the order passed by a single
judge of the High Court for enforcement of two foreign awards against it,
the petitioner in SLP (C) Nos.13626-13629 of 2010, first preferred an appeal
before the division bench of the High Court, but the appeal was dismissed by
the division bench as not maintainable. The present SLPs are filed
challenging both the orders passed by the single judge and the division
bench.
8. At the outset Mr. C.A. Sundaram, submitted that the proper course
would be to refer the matter to a larger bench of three judges. He pointed out
that in Orma Impex Pvt. Ltd. v. Nissai ASB PTE Ltd., (1999) 2 SCC 541, the
same question was earlier referred to a bench of three judges of this Court.
The Court, however, did not have the occasion to decide the case because it
was withdrawn following a settlement between the parties. Mr. Sundaram
submitted that though the case does not survive, the issue arising in it (which
is the same as in this batch of cases) continues to be alive and hence,
following the referral in Orma Impex Pvt. Ltd. (which was in the form of
`Record of Proceedings’ and not an order of the Court!), all these cases
should be referred for hearing before a bench of three judges of this Court.
8

 
Mr. Dushyant Dave, learned senior advocate appearing for the respondents,
in some of the cases in the batch, strongly opposed Mr. Sundaram’s
submission and contended that there was no need to refer the cases to any
larger bench.
9. In Orma Impex Pvt. Ltd., the Delhi High Court had taken the view that
against the order passed by a single judge of the High Court under section
45, refusing to refer parties to arbitration, no further appeal would lie under
section 50 of the 1996 Act. In the special leave petition filed against the
order of the High Court, a bench of two judges of this Court observed that
the High Court had failed to notice section 10 of the Delhi High Court Act,
1996 and clause 10 of the Letters Patent which applies to the Delhi High
Court. It further observed that though the view taken by the High Court was
supported by a two judge bench decision of this Court in State of West
Bengal v. M/s Gourangalal Chatterjee, (1993) 3 SCC 1, which in turn had
relied upon an earlier decision of the Court in Union of India v. Mohindra
Supply Co., 1962 (3) SCR 497, a contra view was taken by the Court in
Vinita M. Khanolkar v. Pragna M. Pai & Ors., (1998) 1 SCC 500. There,
thus, appeared a conflict of decisions on the question. In support of the
contra view, the division bench also referred to an earlier decision by a three
9

 
judge bench of this Court in National Sewing Thread Co. Ltd. v. James
Chadwick and Bros. Ltd., AIR 1953 SC 357.
10. Mr. Dave pointed out that neither the decision in Vinita M. Khanolkar
nor the decision in National Sewing Thread Co. Ltd. was rendered under the
provisions of the Arbitration Act; the former was in the context of section
6(3) of the Specific Relief Act, 1963 and the latter under the Trade Marks
Act, 1940. He further submitted that after the decisions in Vinita M.
Khanolkar and the referral of Orma Impex Pvt. Ltd., a three judge bench of
this Court in Union of India & Ors. v. Aradhana Trading Co., (2002) 4 SCC
447, had the occasion to consider the same question, as arising in this batch
of cases, though not under the 1996 Act but under the provisions of the
Arbitration Act, 1940 (hereinafter “1940 Act”). In Aradhana Trading Co.
the Court referred to both the decisions in Vinita M. Khanolkar and in
National Sewing Thread Co. Ltd.; the first it did not follow and the second it
distinguished as having been rendered on a different set of provisions. Mr.
Dave submitted that, thus, the very foundation on which the referral of
Orma Impex Pvt. Ltd. was based, no longer held good.
11. On hearing the two sides, we are of the view that in the afore-noted
facts and circumstances the referral of Orma Impex Pvt. Ltd. cannot be said
to constitute a binding precedent, especially as the case that was referred no
10

 
longer survives. In any event we have heard the two sides at great length and
we see no good reason why this matter should be referred to a larger bench
and not decided by this Court. We, accordingly, proceed to do so.
12. The question regarding the availability of an appeal under the relevant
clause of the Letters Patent has engaged the attention of this Court from time
to time under different circumstances and in cases arising under different
Acts. We take note of some of the cases here that were brought to our notice
by the two sides.
13. In National Sewing Thread Co. Ltd., this Court held that the judgment
of a learned single judge of the Bombay High Court, on an appeal preferred
under section 76 of the Trade Marks Act was subject to appeal under clause
15 of the Letters Patent of that High Court. The Court noted the material part
of clause 15 of the Letters Patent of the High Court and section 76 (1) of the
Trade Marks Act and observed:
“The Trade Marks Act does not provide or lay down any

procedure for the future conduct or career of that appeal in the

High Court, indeed S.77 of the Act provides that the High Court

can if it likes make rules in the matter. Obviously after the

appeal had reached the High Court it has to be determined

according to the rules of practice and procedure of that

Court and in accordance with the provisions of the charter

under which that Court is constituted and which confers on

it power in respect to the method and manner of exercising

that jurisdiction. The rule is well settled that when a statute

directs that an appeal shall lie to a Court already
11

 
established, then that appeal must be regulated by the

practice and procedure of that Court.”
(emphasis supplied)
14. Taking support for its view from the decisions in (i) National
Telephone Co. Ltd. v. Postmaster-General, (1913) AC 546, (ii) Adaikappa
Chettiar v. Chandresekhara Thevar, AIR 1948 PC 12 and (iii) Secy. of State
for India v. Chellikani Rama Rao, AIR 1916 PC 21, the decision in National
Sewing Thread Co. Ltd. further observed:
“Section 76, Trade Marks Act confers a right of appeal to the

High Court and says nothing more about it. That being so, the

High Court being seized as much of the appellate jurisdiction

conferred by S.76 it has to exercise that jurisdiction in the same

manner as it exercises its other appellate jurisdiction and when

such jurisdiction is exercised by a single Judge, his judgment

becomes subject to appeal under Cl.15 of the Letters Patent

there being nothing to the contrary in the Trade Marks Act.”
15. The Court held that there was nothing in the provisions of section 77
of the Trade Marks Act that would debar the High Court from hearing
appeals under section 76, according to the Rules under which all other
appeals are heard or from framing Rules for the exercise of that
jurisdiction under section 108, Government of India Act, 1915, for hearing
those appeals by single judges or by division benches. It also negated the
submission that the judgment of the learned single judge would not be
12

 
subject to an appeal under clause 15 of the Letters Patent because it was not
delivered pursuant to section 108, Government of India Act.
16. In Vinita M. Khanolkar, a bench of two judges of this Court held that
notwithstanding the bar of sub-section (3), an order passed by a learned
single judge of the High Court under section 6 of the Specific Relief Act
would nevertheless be subject to appeal under clause 15 of the Letters Patent
of the Bombay High Court. In Vinita M. Khanolkar, this Court put the power
of the High Court under the Letters Patent at the level of constitutional
power of the High Court and went on to observe as follows:
“3. Now it is well settled that any statutory provision barring an

appeal or revision cannot cut across the constitutional power of

a High Court. Even the power flowing from the paramount

charter under which the High Court functions would not get

excluded unless the statutory enactment concerned expressly

excludes appeals under letters patent. No such bar is discernible

from Section 6(3) of the Act. It could not be seriously

contended by learned counsel for the respondents that if clause

15 of the Letters Patent is invoked then the order would be

appealable. Consequently, in our view, on the clear language of

clause 15 of the Letters Patent which is applicable to Bombay

High Court, the said appeal was maintainable as the order under

appeal was passed by learned Single Judge of the High Court

exercising original jurisdiction of the court. Only on that short

ground the appeal is required to be allowed.”
17. As noted above, Vinita M. Khanolkar, was considered in a later three
judge bench decision in Aradhana Trading Co. One may not go so far as to
say that Aradhana Trading Co. disapproved Vinita M. Khanolkar wholly but
13

 
it surely took the opposite view on the question in the context of section 39
of the Arbitration Act, 1940.
18. In Sharda Devi v. State of Bihar, (2002) 3 SCC 705, a bench of three
judges of this Court examined the question whether a Letters Patent Appeal
is maintainable against the judgment and decree of a single judge of the
High Court passed in an appeal preferred under section 54 of the Land
Acquisition Act, 1894. A bench of two judges before which the case was
earlier put up noticed a conflict of decision on the question. In Baljit Singh
v. State of Haryana, bench of two judges of the Court had held that no
Letters Patent Appeal is maintainable against the judgment of a single judge
of the High Court on an appeal under section 54 of the Land Acquisition
Act, whereas in Basant Kumar v. Union of India, (1996) 11 SCC 542, a
bench of three judges, without adverting to the decision in Baljit Singh, held
that such an appeal is maintainable. The two judge bench, accordingly,
referred the case for hearing before a bench of three judges. The three judge
bench affirmed the decision in Basant Kumar. It noted that the decision in
Baljit Singh was based on concession made in light of an earlier decision of
this Court in South Asia Industries (P) Ltd. v. S.B. Sarup Singh, (1965) 2
SCR 756. The decision in South Asia Industries was in a case under the
Delhi Rent Control Act, 1958. In Sharda Devi, the Court pointed out that in
14

 
South Asia Industries, the Court had examined sections 39 and 43 of the
Delhi Rent Control Act and held that a combined reading of the two sections
showed that an order passed by the High Court in an appeal under section 39
was to be final. It was held that the provision of finality was intended to
exclude any further appeal. This decision was, thus, based on interpretation
of sections 39 and 43 of the Delhi Rent Control Act. Section 54 of the Land
Acquisition Act, has no similarity with sections 39 and 43 of the Delhi Rent
Control Act. Hence, the decision in South Asia Industries had no relevance
to decide the question whether a letters patent appeal is maintainable against
the judgment passed by a single judge under section 54 of the Land
Acquisition Act. In regard to the Letters Patent jurisdiction of the High
Court, this Court in Sharda Devi made the following observation in
paragraph 9:
“9. A Letters Patent is the charter under which the High Court

is established. The powers given to a High Court under the

Letters Patent are akin to the constitutional powers of a High

Court. Thus when a Letters Patent grants to the High Court a

power of appeal, against a judgment of a Single Judge, the right

to entertain the appeal would not get excluded unless the

statutory enactment concerned excludes an appeal under

the Letters Patent.”
19. Referring to section 54 of the Land Acquisition Act, the Court
concluded as follows:
15

 
“14. … Section 26 of the said Act provides that every award

shall be a decree and the statement of grounds of every award

shall be a judgment. By virtue of the Letters Patent “an appeal”

against the judgment of a Single Judge of the High Court would

lie to a Division Bench. Section 54 of the said Act does not

exclude an appeal under the Letters Patent. The word “only”

occurring immediately after the non obstante clause in

Section 54 refers to the forum of appeal. In other words, it

provides that the appeal will be to the High Court and not to

any other court e.g. the District Court. The term “an appeal”

does not restrict it to only one appeal in the High Court. The

term “an appeal” would take within its sweep even a letters

patent appeal. The decision of the Division Bench rendered in a

letters patent appeal will then be subject to appeal to the

Supreme Court. Read in any other manner there would be a

conflict between Section 54 and the provision of a Letters

Patent. It is settled law that if there is a conflict, attempt should

be made to harmoniously construe the provisions.”

 
20. In Subal Paul v. Malina Paul & Anr., (2003) 10 SCC 361, a bench of
three judges of this Court examined the question whether a letters patent
appeal would lie against the judgment of a single judge of a High Court on
an appeal filed under section 299 of the Indian Succession Act, 1925.
Arguing against the maintainability of a letters patent appeal against the
judgment of the single judge it was contended that the rejection of the
application for probate by the district judge did not give rise to any decree.
Hence, an appeal against such an order would be one under section 104 of
the Civil Procedure Code and a further appeal would, therefore, be barred
under sub-section (2) of section 104. This Court did not accept the
16

 
submission. It held that the appeal against an order of the district judge
would be under section 299 of the Indian Succession Act. Section 104 of the
Code simply recognizes appeals provided under special statutes; it does not
create a right of appeal as such. Consequently, it does not bar any further
appeal also. As regards the nature of an appeal under the Letters Patent, the
decision in Subal Paul in paragraphs 21 and 22, observed as follows:
“21. If a right of appeal is provided for under the Act, the

limitation thereof must also be provided therein. A right of

appeal which is provided under the Letters Patent cannot be

said to be restricted. Limitation of a right of appeal, in the

absence of any provision in a statute cannot be readily

inferred. It is now well-settled that the appellate jurisdiction

of a superior court is not taken as excluded simply because

the subordinate court exercises its special jurisdiction. In

G.P. Singh’s Principles of Statutory Interpretation, it is stated:

“The appellate and revisional jurisdiction of superior

courts is not taken as excluded simply because the

subordinate court exercises a special jurisdiction. The

reason is that when a special Act on matters governed by

that Act confers a jurisdiction to an established court, as

distinguished from a persona designata, without any

words of limitation, then, the ordinary incident of

procedure of that court including any general right of

appeal or revision against its decision is attracted.”

 

22. But an exception to the aforementioned rule is on

matters where the special Act sets out a self-contained code,

the applicability of the general law procedure would be

impliedly excluded. [See Upadhyaya Hargovind Devshanker

v. Dhirendrasinh Virbhadrasinhji Solanki (1988) 2 SCC 1]”
(emphasis supplied)
17

 
21. In paragraph 32 of the judgment, this Court further observed as
follows:
“32. While determining the question as regards clause 15 of the

Letters Patent, the court is required to see as to whether the

order sought to be appealed against is a judgment within the

meaning thereof or not. Once it is held that irrespective of the

nature of the order, meaning thereby whether interlocutory or

final, a judgment has been rendered, clause 15 of the Letters

Patent would be attracted.”

 

22. In P.S. Sathappan v. Andhra Bank Ltd. & Ors., (2004) 11 SCC 672, a
constitution bench of this Court once again extensively considered the nature
of the Letters Patent jurisdiction of the High Court, and the circumstances in
which it would be available and those under which it would be ousted. The
question that was referred to the Constitution Bench was: what would be
“the effect of the provisions of section 104(2) of the Code of Civil
Procedure, 1908 (hereinafter “CPC”) vis-`-vis clause 15 of the Letters Patent
(of the Madras High Court)”? An application for setting aside the court
auction-sale was dismissed by the execution court. An appeal against the
order came to the High Court and it was dismissed by a single judge.
Against the order of the single judge, a letters patent appeal was filed. The
question of maintainability of the appeal was examined by a full bench of
the High Court and the intra-court appeal to the division bench was held to
be not maintainable in view of the provisions of section 104(2) of CPC. A
18

 
Constitution Bench of this Court, however, reversed the decision of the full
bench of the High Court and by a majority of 3:2 held that the letters patent
appeal was perfectly maintainable.
23. P.S. Sathappan is actually an authority on the interplay of section 104
of the Code of Civil Procedure and the Letters Patent jurisdiction of the
High Court. The majority judgment went into the history of the matter and
pointed out that under the Civil Procedure Codes of 1877 and 1882 there
was a divergence of opinion among the different High Courts on the point
whether the finality attached to orders passed under section 588
(corresponding to section 104 of the present Code) precluded any further
appeals, including a letters patent appeal. The question, then, came up before
the Privy Council in the case of Hurrish Chunder Chowdry v. Kali Sundari
Debia, ILR (1882) 9 Cal. 482 ( PC). But the decision of the Privy Council,
rather than settling the issue gave rise to further conflicting decisions by
different High Courts in the country. The Bombay, Calcutta and Madras
High Courts held that section 588 did not take away the right of appeal given
under the Letters Patent. On the other hand, the Allahabad High Court took a
different view and held that a letters patent appeal was barred under section
588 of the Code. In view of this conflict of views, the legislature stepped in
and amended the law. It introduced section 4 and section 104 in the Code.
19

 
Having, thus, put the controversy in the historical perspective, the Court
referred to sections 4 and 104 of the Code and made the following
observation in paragraph 6 of the judgment:
“To be immediately noted that now the legislature provides that

the provision of this Code will not affect or limit special law

unless specifically excluded. The legislature also

simultaneously saves, in section 104(1), appeals under “any

law for the time being in force”. These would include letters

patent appeals.”

(emphasis supplied )
24. The above is really the kernel of the decision in P.S. Sathappan and
the rest of the judgment is only an elucidation of this point.
25. In P. S. Sathappan the constitution bench considered in some detail
the 1962 decision by a bench of four judges of the Court in Mohindra
Supply Co. (supra) in which the legislative history of section 104 of the
Code was traced out in detail and it was shown that by virtue of the saving
clause in section 4 and the express language of section 104 that saved an
appeal as provided by any other law for the time being in force, a letters
patent appeal was not hit by the bar of sub-section (2) of section 104 of the
Code. [Mohindra Supply Co., however, was a case under section 39 of the
1940 Act, which did not contain any provision similar to section 4 of the
Code and hence, in that case the Court held that the finality attached by sub-
20

 
section (2) to an order passed under sub-section (1) of section 39 barred any
further appeal, including a letters patent appeal.]
26. In P.S. Sathappan, on a consideration of a number of earlier decisions,
the Constitution Bench concluded that till 1996, the unanimous view of all
courts was that section 104(1) CPC specifically saved letters patent appeals
and the bar under section 104(2) did not apply to letters patent appeals.
Thereafter, there were two decisions in deviation from the accepted judicial
view, one by a bench of two judges of this Court in Resham Singh Pyara
Singh v. Abdul Sattar, (1996) 1 SCC 49 and the other by a bench of three
judges of this Court in New Kenilworth Hotel (P) Ltd. v. Orissa State
Finance Corpn., (1997) 3 SCC 462. P.S. Sathappan, overruled both these
decisions and declared that Resham Singh Pyara Singh and New Kenilworth
Hotel (P) Ltd. laid down wrong law. It further pointed out that even after the
aforementioned two decisions this Court had continued to hold that a Letters
Patent Appeal is not affected by the bar of section 104(2) CPC. In this
connection, it referred to Vinita M. Khanolkar (supra), under section 6 of the
Specific Relief Act, Chandra Kanta Sinha v. Oriental Insurance Co. Ltd. &
Ors., (2001) 6 SCC 158, under section 140 of the Motor Vehicles Act,
1988, Sharda Devi (supra), under section 54 of the Land Acquisition Act
and Subal Paul (supra), under section 299 of the Indian Succession Act,
21

 
1925 and came to the conclusion that the consensus of judicial opinion has
been that section 104(1) CPC expressly saves the letters patent appeal and
the bar under section 104(2) CPC does not apply to letters patent appeals. In
paragraph 22 of the judgment, the Court observed as follows:
“22…. The view has been that a letters patent appeal cannot be

ousted by implication but the right of an appeal under the

Letters Patent can be taken away by an express provision in an

appropriate legislation. The express provision need not refer to

or use the word “letters patent” but if on a reading of the

provision it is clear that all further appeals are barred then even

a letters patent appeal would be barred.”
27. Further, analysing the two sub-sections of section 104(2) along with
section 4 CPC, this Court in paragraph 30 of the judgment observed as
follows:
“30…. Section 104 must be read as a whole and harmoniously.

If the intention was to exclude what is specifically saved in sub-

section (1), then there had to be a specific exclusion. A general

exclusion of this nature would not be sufficient. We are not

saying that a general exclusion would never oust a letters patent

appeal. However, when section 104(1) specifically saves a

letters patent appeal then the only way such an appeal could be

excluded is by express mention in section 104(2) that a letters

patent appeal is also prohibited. . ….”
28. Mr. Sundaram heavily relied upon this decision.
29. The decisions noticed so far lay down certain broad principles that
may be stated as follows:
22

 
1. Normally, once an appeal reaches the High Court it has to be
determined according to the rules of practice and procedure
of the High Court and in accordance with the provisions of
the charter under which the High Court is constituted and
which confers on it power in respect to the method and
manner of exercising that power.
2. When a statute merely directs that an appeal shall lie to a
court already established then that appeal must be regulated
by the practice and procedure of that court.
3. The High Court derives its intra-court appeal jurisdiction
under the charter by which it was established and its powers
under the Letters Patent were recognized and saved by
section 108 of the Government of India Act, 1915, section
223 of the Government of India Act, 1935 and finally, by
Article 225 of the Constitution of India. The High Court,
therefore, cannot be divested of its Letters Patent jurisdiction
unless provided for expressly or by necessary intendment by
some special statute.
4. If the pronouncement of the single judge qualifies as a
“judgment”, in the absence of any bar created by a statute
23

 
either expressly or by necessary implication, it would be
subject to appeal under the relevant clause of the Letters
Patent of the High Court.
5. Since section 104(1) CPC specifically saves the letters
patent appeal it could only be excluded by an express
mention in section 104(2). In the absence of any express
mention in section 104(2), the maintainability of a letters
patent appeal is saved by virtue of section 104(1).
6. Limitation of a right of appeal in absence of any provision in
a statute cannot be readily inferred. The appellate
jurisdiction of a superior court cannot be taken as excluded
simply because a subordinate court exercises its special
jurisdiction.
7. The exception to the aforementioned rule is where the
special Act sets out a self-contained code and in that event
the applicability of the general law procedure would be
impliedly excluded. The express provision need not refer to
or use the word “letters patent” but if on a reading of the
provision it is clear that all further appeals are barred then
even a letters patent appeal would be barred.
24

 
30. These general principles are culled out from the decisions of this
Court rendered under section 104 of the CPC and various other Acts, as
noted above. But there is another set of decisions of this Court on the
question under consideration rendered in the context of section 39 of the
1940 Act. Section 39 of the erstwhile Act contained the provision of appeal
and provided as follows:
“39. Appealable orders.–(1) An appeal shall lie from the

following orders passed under this Act (and from no others) to

the Court authorised by law to hear appeals from original

decrees of the Court passing the order:
An order –
(i) superseding an arbitration;
(ii) on an award stated in the form of a special case;
(iii) modifying or correcting an award;
(iv) filing or refusing to file an arbitration agreement;
(v) staying or refusing to stay legal proceedings where

there is an arbitration agreement;
(vi) setting aside or refusing to set aside an award:
PROVIDED THAT the provisions of this section shall not

apply to any order passed by a Small Cause Court.
(2) No second appeal shall lie from an order passed in appeal

under this section, but nothing in this section shall affect or take

away any right to appeal to the Supreme Court.”
25

 
[Insofar as relevant for the present, section 37 of the 1996 Act, is very
similar to section 39 of the previous Act as quoted above.]
31. In Mohindra Supply Co., a bench of four judges of this Court held that
a letters patent appeal against an order passed by a single judge of the High
Court on an appeal under section 39(1) of the 1940 Act was barred in terms
of sub-section (2) of section 39. This decision is based on the bar against
further appeals as contained in sub-section (2) of section 39 of the 1940 Act
and, therefore, it may not have a direct bearing on the question presently
under consideration.
32. More to the point are two later decisions. In M/s Gourangalal
Chatterjee, a bench of two judges of this Court held that an order, against
which no appeal would lie under section 39(1) of the 1940 Act, could not be
taken in appeal before the division bench of the High Court under its Letters
Patent. The same view was reaffirmed by a bench of three judges of this
Court in Aradhana Trading Co.
33. In regard to these two decisions, Mr. Sundaram took the position that
both M/s Gourangalal Chatterjee and Aradhana Trading Co. were rendered
on section 39 of the 1940 Act, the equivalent of which is section 37 of the
1996 Act. In view of the two decisions, he conceded that in the event an
order was not appealable under section 37(1) of the 1996 Act, it would not
26

 
be subject to appeal under the Letters Patent of the High Court. He,
however, referred to section 50 of the 1996 Act, which is as follows:
“50. Appealable orders.–(1) An appeal shall lie from the order

refusing to–

(a) refer the parties to arbitration under section 45;

(b) enforce a foreign award under section 48,

to the court authorised by law to hear appeals from such order.
(2) No second appeal shall lie from an order passed in appeal

under this section, but nothing in this section shall affect or take

away any right to appeal to the Supreme Court.”
34. Mr. Sundaram submitted that section 50, unlike section 39 of the
previous Act and section 37 of the current Act does not have the words
“(and from no others)” and that, according to him, made all the difference.
He contended that the omission of the words in parenthesis was significant
and it clearly pointed out that unlike section 37, even though an order was
not appealable under section 50, it would be subject to appeal under the
Letters Patent of the High Court. At any event the decisions rendered under
section 39 of the 1940 would have no application in a case relating to section
50 of the 1996 Act.
35. Mr. Dave, in reply submitted that the words “(and from no other)”
occurring in section 39 of the 1940 Act and section 37 of the 1996 Act were
actually superfluous and seen, thus, there would be no material difference
between the provisions of section 39 of the 1940 Act or section 37 of the
27

 
1996 Act and section 50 of the 1996 Act and all the decisions rendered on
section 39 of the 1940 Act will apply with full force to cases arising under
section 50 of the 1996 Act.
36. The use of round brackets for putting words in parenthesis is not very
common in legislation and this reminds us of the painful lament by
Meredith, J. of the Patna High Court, who in 1948 dealing with a case said
that “the 1940 Act contains examples of bad drafting which it would be hard
to beat”.
37. According to the New Oxford Dictionary of English, 1998 edition,
brackets are used to enclose words or figures so as to separate them from
the context. The Oxford Advanced Learner’s Dictionary, Seventh edition
defines “bracket” to mean “either of a pair of marks, ( ) placed around extra
information in a piece of writing or part of a problem in mathematics”. The
New Oxford Dictionary of English, 1998 edition gives the meaning and use
of parenthesis as:
“Parenthesis–noun (pl. parentheses) a word, clause, or

sentence inserted as an explanation or afterthought into a

passage which is grammatically complete without it, in

writing usually marked off by brackets, dashes, or commas.
– (usu. Parentheses) a pair of round brackets ( ) used to include

such a word, clause, or sentence.”

 
28

 
38. The Oxford Advanced Learner’s Dictionary, Seventh edition, defines
the meaning of parenthesis as:
“a word, sentence, etc. that is added to a speech or piece of

writing, especially in order to give extra information. In

writing, it is separated from rest of the text using brackets,

commas or DASHES.”
39. The Complete Plain Words by Sir Ernest Gowers, 1986 revised
edition by Sidney Greenbaum and Janet Whitcut, gives the purpose of
parenthesis as follows:
“Parenthesis
The purpose of a parenthesis is ordinarily to insert an

illustration, explanation, definition, or additional piece of

information of any sort into a sentence that is logically and

grammatically complete without it. A parenthesis may be

marked off by commas, dashes or brackets. The degree of

interruption of the main sentence may vary from the almost

imperceptible one of explanatory words in apposition, to the

violent one of a separate sentence complete in itself.”
40. The Merriam Webster Online Dictionary defines parenthesis as
follows:
“1 a : an amplifying or explanatory word, phrase, or sentence

inserted in a passage from which it is usually set off by

punctuation b : a remark or passage that departs from the theme

of a discourse : digression

 

2: interlude, interval

 

3: one or both of the curved marks ( ) used in writing and

printing to enclose a parenthetical expression or to group a

symbolic unit in a logical or mathematical expression”
29

 

 

41. The Law Lexicon, The Encyclopaedic Law Dictionary by P.
Ramanatha Aiyar, 2000 edition, defines parenthesis as under:
“Parenthesis. a parenthesis is defined to be an explanatory or

qualifying clause, sentence, or paragraph, inserted in another

sentence, or in course of a longer passage, without being

grammatically connected with it. (Cent. Dist.)
PARENTHESIS is used to limit, qualify or restrict the meaning

of the sentence with which it is connected, and it may be

designated by the use of commas, or by a dash, or by curved

lines or brackets [53 Fed.81 (83); 3C, CA 440].”

 
42. Having regard to the grammatical use of brackets or parentheses, if
the words, “(and from no others)” occurring in section 39 of the 1940 Act or
section 37 of the 1996 Act are viewed as `an explanation or afterthought’ or
extra information separate from the main context, then, there may be some
substance in Mr. Dave’s submission that the words in parentheses are
surplusage and in essence the provisions of section 39 of the 1940 Act or
section 37 of the 1996 Act are the same as section 50 of the 1996 Act.
Section 39 of the 1940 Act says no more and no less than what is stipulated
in section 50 of the 1996 Act.
43. But there may be a different reason to contend that section 39 of the
1940 Act or its equivalent section 37 of the 1996 Act are fundamentally
different from section 50 of the 1996 Act and hence, the decisions rendered
30

 
under section 39 of the 1940 Act may not have any application to the facts
arising under section 50 of the 1996 Act.
44. But for that we need to take a look at the basic scheme of the 1996
Act and its relevant provisions. Before the coming into force of the
Arbitration and Conciliation Act, 1996 with effect from August 16, 1996,
the law relating to domestic arbitration was contained in the Arbitration Act,
1940, which in turn was brought in place of the Arbitration Act, 1899. Apart
from the Arbitration Act 1940, there were two other enactments of the same
genre. One called the Arbitration (Protocol and Convention) Act, 1937 (for
execution of the Geneva Convention Awards) and the other called the
Foreign Awards (Recognition and Enforcement) Act, 1961 (for enforcement
of the New York Convention awards).
45. The aforesaid three Acts were replaced by the Arbitration and
Conciliation Act, 1996, which is based on the United Nations Commission
on International Trade Law (UNCITRAL) Model and is broadly compatible
with the “Rules of Arbitration of the International Chamber of Commerce”.
The Arbitration and Conciliation Act, 1996 that has repealed the Arbitration
Act, 1940 and also the Acts of 1937 and 1961, consolidates and amends the
law relating to domestic arbitration, international commercial arbitration,
enforcement of foreign arbitral awards and defines the law relating to
31

 
conciliation and provides for matters connected therewith and incidental
thereto taking into account the UNCITRAL MODEL law and Rules.
46. The Statement of Objects and Reasons of the Arbitration and
Conciliation Act, 1996 reads as under:
“Statement of Objects and Reasons
The law of arbitration in India is at present substantially

contained in three enactments, namely, The Arbitration Act,

1940, The Arbitration (Protocol and Convention) Act, 1937 and

The Foreign Awards (Recognition and Enforcement) Act, 1961.

It is widely felt that the 1940 Act, which contains the general

law of arbitration, has become outdated. The Law Commission

of India, several representative bodies of trade and industry and

experts in the field of arbitration have proposed amendments to

this Act to make it more responsive to contemporary

requirements. It is also recognised that our economic reforms

may not become fully effective if the law dealing with

settlement of both domestic and international commercial

disputes remains out of tune with such reforms. Like

arbitration, conciliation is also getting increasing worldwide

recognition as an instrument for settlement of disputes. There

is, however, no general law on the subject in India.
2. The United Nations Commission on International Trade Law

(UNCITRAL) adopted in 1985 the Model Law on International

Commercial Arbitration. The General Assembly of the United

Nations has recommended that all countries give due

consideration to the said Model Law, in view of the desirability

of uniformity of the law of arbitral procedures and the specific

needs of international commercial arbitration practice. The

UNCITRAL also adopted in 1980 a set of Conciliation Rules.

The General Assembly of the United Nations has recommended

the use of these Rules in cases where the disputes arise in the

context of international commercial relations and the parties

seek amicable settlement of their disputes by recourse to

conciliation. An important feature of the said UNCITRAL
32

 
Model Law and Rules is that they have harmonised

concepts on arbitration and conciliation of different legal

systems of the world and thus contain provisions which are

designed for universal application.
3. Though the UNCITRAL Model Law and Rules are intended

to deal with international commercial arbitration and

conciliation, they could, with appropriate modifications, serve

as a model for legislation on domestic arbitration and

conciliation. The present Bill seeks to consolidate and amend

the law relating to domestic arbitration, international

commercial arbitration, enforcement of foreign arbitral awards

and to define the law relating to conciliation, taking into

account the said UNCITRAL Model Law and Rules.
4. The main objectives of the Bill are as under:-

(i) to comprehensively cover international and commercial

arbitration and conciliation as also domestic arbitration

and conciliation;

(ii) to make provision for an arbitral procedure which is fair,

efficient and capable of meeting the needs of the specific

arbitration;

(iii) to provide that the arbitral tribunal gives reasons for its

arbitral award;

(iv) to ensure that the arbitral tribunal remains within the

limits of its jurisdiction;

(v) to minimise the supervisory role of courts in the

arbitral process;

(vi) to permit an arbitral tribunal to use mediation,

conciliation or other procedures during the arbitral

proceedings to encourage settlement of disputes;

(vii) to provide that every final arbitral award is enforced

in the same manner as if it were a decree of the court;

(viii) to provide that a settlement agreement reached by the

parties as a result of conciliation proceedings will have

the same status and effect as an arbitral award on agreed

terms on the substance of the dispute rendered by an

arbitral tribunal; and

(ix) to provide that, for purposes of enforcement of foreign

awards, every arbitral award made in a country to which
33

 
one of the two international Conventions relating to

foreign arbitral awards to which India is a party applies,

will be treated as a foreign award.
5. The Bill seeks to achieve the above objects.”

(emphasis supplied)
47. The Preamble of the Arbitration and Conciliation Act, 1996 is as
follows:
“PREAMBLE
WHEREAS the United Nations Commission on

International Trade Law (UNCITRAL) has adopted the

UNCITRAL Model Law on International Commercial

Arbitration in 1985;

 

AND WHEREAS the General Assembly of the United

Nations has recommended that all countries give due

consideration to the said Model Law, in view of the desirability

of uniformity of the law of arbitral procedures and the specific

needs of international commercial arbitration practice;

 

AND WHEREAS the UNCITRAL has adopted the

UNCITRAL Conciliation Rules in 1980;

 

AND WHEREAS the General Assembly of the United

Nations has recommended the use of the said Rules in cases

where a dispute arises in the context of international

commercial relations and the parties seek an amicable

settlement of that dispute by recourse to conciliation;

 

AND WHEREAS the said Model Law and Rules make

significant contribution to the establishment of a unified legal

framework for the fair and efficient settlement of disputes

arising in international commercial relations;

 
34

 
AND WHEREAS it is expedient to make law respecting

arbitration and conciliation, taking into account the aforesaid

Model Law and Rules;”
48. The new Act is a loosely integrated version of the Arbitration Act,
1940, Arbitration (Protocol and Convention) Act, 1937 and Foreign Awards
(Recognition and Enforcement) Act, 1961. It actually consolidates amends
and puts together three different enactments. But having regard to the
difference in the object and purpose and the nature of these three
enactments, the provisions relating thereto are kept separately. A mere
glance at the 1996 Act is sufficient to show that under its scheme the
provisions relating to the three enactments are kept separately from each
other. The 1996 Act is divided into four parts and it has three schedules at its
end. Part I has ten chapters that contain provisions governing domestic
arbitration and international commercial arbitration. Part II has two chapters;
Chapter I contains provisions relating to the New York Convention Awards
and Chapter II contains provisions relating to the Geneva Convention
Awards. Part III of the Act has provisions concerning conciliation. Part IV
has the supplementary provisions such as the power of the High Court to
make rules (section 82), provision for removal of difficulties (section 83),
and the power to make rules (section 84). At the end there are two repeal and
saving sections. Section 85 repeals the three enactments referred to above,
35

 
subject to the appropriate saving clause and section 86 repeals Ordinance 27
of 1996, the precursor of the Act, subject to the appropriate saving clause.
Of the three schedules, the first is related to Part II, Chapter I, i.e., the New
York Convention Awards and the second and the third to Chapter II, i.e., the
Geneva Convention Awards.
49. There is a certain similarity between the provisions of Chapters I and
II of Part II but Part I of the Act is vastly different from Chapters I and II of
Part II of the Act. This is quite understandable too since Part II deals only
with enforcement of foreign awards (Chapter I, of New York Convention
Awards and Chapter II, of Geneva Convention Awards) while Part I of the
Act deals with the whole gamut of law concerning domestic arbitration and
international commercial arbitration. It has, therefore, a very different and
much larger framework than the two chapters in Part II of the Act.
50. Part I has ten chapters. Chapter I begins with definition clauses in
section 2 that defines, amongst other terms and expressions, “arbitration”,
“arbitration agreement”, “arbitral award”, etc. Chapter I also contains some
“General Provisions” (sections 3-6). Chapter II contains provisions relating
to “Arbitration Agreement” (sections 7-9). Chapter III contains provisions
relating to “Composition of Arbitral Tribunal” (sections 10-15). Chapter IV
deals with the “Jurisdiction of Arbitral Tribunals” (sections 16-17). Chapter
36

 
V lays down provisions concerning “Conduct of Arbitral Proceedings”
(sections 18-27). Chapter VI deals with “Making of Arbitral Award and
Termination of Proceedings” (sections 28-33). Chapter VII has only one
section, i.e., section 34 that provides “Recourse against Arbitral Award”.
Chapter VIII deals with “Finality and Enforcement of Arbitral Awards”
(sections 35-36). Chapter IX provides for “Appeals” (section 37 which is
akin to section 39 of the 1940 Act). Chapter X contains the “Miscellaneous”
provisions (sections 38-43).
51. It is also evident that Part I and Part II of the Act are quite separate
and contain provisions that act independently in their respective fields. The
opening words of section 2, i.e. the definition clause in Part I, make it clear
that meanings assigned to the terms and expressions defined in that section
are for the purpose of that part alone. Section 4 which deals with waiver of
right to object is also specific to Part I of the Act. Section 5 dealing with
extent of judicial intervention is also specific to Part I of the Act. Section 7
that defines “arbitration agreement” in considerable detail also confines the
meaning of the term to Part I of the Act alone. Section 8 deals with the
power of a judicial authority to refer parties to arbitration where there is an
arbitration agreement and this provision too is relatable to Part I alone
(corresponding provisions are independently made in sections 45 and 54 of
37

 
Chapter I and II, respectively of Part II). The other provisions in Part I by
their very nature shall have no application insofar as the two chapters of Part
II are concerned.
52. Once it is seen that Part I and Part II of the Act are quite different in
their object and purpose and the respective schemes, it naturally follows that
section 37 in Part I (analogous to section 39 of the 1940 Act) is not
comparable to section 50 in Part II of the Act. This is not because, as Mr.
Sundaram contends section 37 has the words in parentheses “and from no
others” which are not to be found in section 50 of the Act. Section 37 and
section 50 are not comparable because they belong to two different statutory
schemes. Section 37 containing the provision of appeal is part of a much
larger framework that, as seen above, has provisions for the complete range
of law concerning domestic arbitration and international commercial
arbitration. Section 50 on the other hand contains the provision of appeal in
a much limited framework, concerned only with the enforcement of New
York Convention awards. In one sense, the two sections, though each
containing the appellate provision belong to different statutes.
53. Having come to this conclusion, it would appear that the decisions
rendered by the Court on the interplay between section 39 of the 1940 Act
and the Letters Patent jurisdiction of the High Court shall have no
38

 
application for deciding the question in hand. But that would be only a
superficial view and the decisions rendered under section 39 of the 1940 Act
may still give the answer to the question under consideration for a very basic
and fundamental reason.
54. However, before going into that it will be useful to take another look
at the provisions of Chapter I of Part II of the Act. We have so far seen the
provisions of Chapter I of Part II of the Act in comparison with those of Part
I of the 1996 Act. It would also be relevant to examine it in comparison with
the provisions of its precursor, the Foreign Awards, Recognition and
Enforcement Act, 1961 and to see how far the earlier Act is consolidated,
amended and harmonised and designed for universal application.
55. The provisions of Chapter I of Part II of the 1996 Act along with the
provisions of the Foreign Awards, Recognition and Enforcement Act, 1961,
insofar as relevant for the present are placed below in a tabular form:

 

 

PART II

ENFORCEMENT OF CERTAIN

THE FOREIGN AWARDS FOREIGN AWARDS

(RECOGNITION AND

ENFORCEMENT) ACT, 1961 CHAPTER I

NEW YORK CONVENTION

AWARDS
2. Definition.–In this Act, unless the 44. Definition.–In this Chapter, unless

context otherwise requires, “foreign the context otherwise requires, “foreign
39

 
award” means an award on differences award” means an arbitral award on

between persons arising out of legal differences between persons arising out

relationships, whether contractual or not, of legal relationships, whether

considered as commercial under the law contractual or not, considered as

in force in India, made on or after the commercial under the law in force in

11th day of October, 1960 – India, made on or after the 11th day of

(a) in pursuance of an agreement in October, 1960 –

writing for arbitration to which

the Convention set forth in the (a) in pursuance of an agreement in

Schedule applies, and writing for arbitration to which the

(b) in one of such territories as the Convention set forth in the First

Central Government being Schedule applies, and

satisfied that reciprocal (b) in one of such territories as the

provisions have been made, may, Central Government, being

by notification in the Official satisfied that reciprocal provisions

Gazette, declare to be territories have been made may, by

to which the said Convention notification in the Official Gazette,

applies. declare to be territories to which

the said Convention applies.

3. Stay of proceedings in respect of

matters to be referred to arbitration.–

Notwithstanding anything contained in

the Arbitration Act, 1940 (10 of 1940),

or in the Code of Civil Procedure, 1908

(5 of 1908), if any party to an agreement

to which Article II of the Convention set 45. Power of judicial authority to refer

forth in the Schedule applies, or any parties to arbitration.–

person claiming through or under him Notwithstanding anything contained in

commences any legal proceedings in any Part I or in the Code of Civil Procedure,

court against any other party to the 1908 (5 of 1908), a judicial authority,

agreement or any person claiming when seized of an action in a matter in

through or under him in respect of any respect of which the parties have made

matter agreed to be referred to arbitration an agreement referred to in section 44,

in such agreement, any party to such shall, at the request of one of the parties

legal proceedings may, at any time after or any person claiming through or under

appearance and before filing a written him, refer the parties to arbitration,

statement or taking any other step in the unless it finds that the said agreement is

proceedings, apply to the court to stay null and void, inoperative or incapable of

the proceedings and the court, unless bring performed.

satisfied that the agreement is null and
40

 
void, inoperative or incapable of being 46. When foreign award binding.–Any

performed or that there is not, in fact, foreign award which would be

any dispute between the parties with enforceable under this Chapter shall be

regard to the matter agreed to be treated as binding for all purposes on the

referred, shall make an order staying the persons as between whom it was made,

proceedings. and may accordingly be relied on by any

of those persons by way of defence, set

4. Effect of foreign awards.–(1) A off or otherwise in any legal proceedings

foreign award shall, subject to the in India and any references in this

provisions of this Act, be enforceable in Chapter to enforcing a foreign award

India as if it were an award made on a shall be construed as including

matter referred to arbitration in India. references to relying on an award.

(2) Any foreign award which would be

enforceable under this Act shall be 47. Evidence.–(1) The party applying

treated as binding for all purposes on the for the enforcement of a foreign award

persons as between whom it was made, shall, at the time of the application,

and may accordingly be relied on by any produce before the court –

of those persons by way of defence, set

off or otherwise in any legal proceedings (a) the original award or a copy

in India and any references in this Act to thereof, duly authenticated in the

enforcing a foreign award shall be manner required by the law of the

construed as including references to country in which it was made;

relying on an award. (b) the original agreement for

arbitration or a duly certified copy

5. Filing of foreign award in court.–(1) thereof; and

Any person interested in a foreign award (c) such evidence as may be necessary

may apply to any court having to prove that the award is a foreign

jurisdiction over the subject-matter of the award.

award that the award be filed in court.

(2) The application shall be in writing (2) If the award or agreement to be

and shall be numbered and registered as produced under sub-section (1) is in a

a suit between the applicant as plaintiff foreign language, the party seeking to

and the other parties as defendants. enforce the award shall produce a

(3) The court shall direct notice to be translation into English certified as

given to the parties to the arbitration, correct by a diplomatic or consular agent

other than the applicant, requiring them of the country to which that party

to show cause, within a time specified belongs or certified as correct in such

why the award should not be filed. other manner as may be sufficient

according to the law in force in India.

6. Enforcement of foreign award.–(1) Explanation.–In this section and all
41

 
Where the court is satisfied that the the following sections of this Chapter,

foreign award is enforceable under this “Court” means the principal Civil Court

Act, the court shall order the award to be of original jurisdiction in a district, and

filed and shall proceed to pronounce includes the High Court in exercise of its

judgment according to the award. ordinary original civil jurisdiction,

(2) Upon the judgment so pronounced a having jurisdiction over the subject-

decree shall follow, and no appeal shall matter of the award if the same had been

lie from such decree except in so far as the subject-matter of a suit, but does not

the decree is in excess of or not in include any civil court of a grade inferior

accordance with the award. to such principal Civil Court, or any

Court of Small Causes.

7. Conditions for enforcement of foreign

awards.– (1) A foreign award may not 48. Conditions for enforcement of

be enforced under this Act- foreign awards.–(1) Enforcement of a

(a) if the party against whom it is foreign award may be refused, at the

sought to enforce the award request of the party against whom it is

proves to the court dealing with invoked, only if that party furnishes to

the case that- the court proof that –

(i) the parties to the agreement

were under the law applicable (a) the parties to the agreement

to them, under some referred to in section 44 were,

incapacity, or the said under the law applicable to them,

agreement is not valid under under some incapacity or the said

the law to which the parties agreement is not valid under the

have subjected it, or failing law to which the parties have

any indication thereon, under subjected it or, failing any

the law of the country where indication thereon, under the law

the award was made; or of the country where the award

(ii) the party was not given was made; or

proper notice of the (b) the party against whom the award

appointment of the arbitrator is invoked was not given proper

or of the arbitration notice of the appointment of the

proceedings or was otherwise arbitrator or of the arbitral

unable to present his case; or proceedings or was otherwise

(iii) the award deals with unable to present his case; or

questions not referred or (c) the award deals with a difference

contains decisions on matters not contemplated by or not falling

beyond the scope of the within the terms of the submission

agreement: Provided that if to arbitration, or it contains

the decisions on matters decisions on matters beyond the
42

 
submitted to arbitration can scope of the submission to

be separated from those not arbitration:

submitted, that part of the Provided that, if the decisions

award which contains on matter submitted to arbitration

decisions on matters can be separated from those not so

submitted to arbitration may submitted, that part of the award

be enforced; or which contains decisions on

(iv) the composition of the matters submitted to arbitration

arbitral authority or the may be enforced; or

arbitral procedure was not in (d) the composition of the arbitral

accordance with the authority or the arbitral procedure

agreement of the parties or was not in accordance with the

failing such agreement, was agreement of the parties, or, failing

not in accordance with the such agreement, was not in

law of the country where the accordance with the law of the

arbitration took place; or country where the arbitration took

(v) the award has not yet become place; or

binding on the parties or has (e) the award has not yet become

been set aside or suspended binding on the parties, or has been

by a competent authority of set aside or suspended by a

the country in which, or competent authority of the country

under the law of which, that in which, or under the law of

award was made; or which, that award was made.

 

(b) if the court dealing with the case (2) Enforcement of an arbitral award

is satisfied that- may also be refused if the Court finds

(i) the subject-matter of the that –

difference is not capable of (a) the subject-matter of the

settlement by arbitration difference is not capable of

under the law of India; or settlement by arbitration under the

(ii) the enforcement of the award law of India; or

will be contrary to public (b) the enforcement of the award

policy. would be contrary to the public

policy of India.

(2) If the court before which a foreign

award is sought to be relied upon is Explanation.–Without prejudice to

satisfied that an application for the the generality of clause (b) of this

setting aside or suspension of the award section, it is hereby declared, for the

has been made to a competent authority avoidance of any doubt, that an award is

referred to in sub-clause (v) of clause (a) in conflict with the public policy of India
43

 
of sub-section (1), the court may, if it if the making of the award was induced

deems proper, adjourn the decision on or affected by fraud or corruption.

the enforcement of the award and may

also, on the application of the party (3) If an application for the setting aside

claiming enforcement of the award, or suspension of the award has been

order the other party to furnish suitable made to a competent authority referred to

security. in clause (e) of sub-section (1) the Court

may, if it considers it proper, adjourn the

8. Evidence.–(1) The party applying for decision on the enforcement of the award

the enforcement of a foreign award shall, and may also, on the application of the

at the time of the application, produce- party claiming enforcement of the award,

(a) the original award or a copy order the other party to give suitable

thereof, duly authenticated in the security.

manner required by the law of the

country in which it was made; 49. Enforcement of foreign awards.–

(b) the original agreement for Where the Court is satisfied that the

arbitration or a duly certified copy foreign award is enforceable under this

thereof; and Chapter, the award shall be deemed to be

(c) such evidence as may be a decree of that Court.

necessary to prove that the award

is a foreign award. 50. Appealable orders.–(1) An appeal

(2) If the award or agreement requiring shall lie from the order refusing to –

to be produced under sub-section (1) is

in a foreign language, the party seeking (a) refer the parties to arbitration under

to enforce the award shall produce a section 45;

translation into English certified as (b) enforce a foreign award under

correct by a diplomatic or consular agent section 48,

of the country to which that party to the court authorised by law to hear

belongs or certified as correct in such appeals from such order.

other manner as may be sufficient

according to the law in force in India. (2) No second appeal shall lie from an

order passed in appeal under this section,

9. Saving.–Nothing in this Act shall- but nothing in this section shall affect or

(a) prejudice any rights which any take away any right to appeal to the

person would have had of Supreme Court.

enforcing in India of any award or

of availing himself in India of any 51. Saving.–Nothing in this Chapter

award if this Act had not been shall prejudice any rights which any

passed; or person would have had of enforcing in

(b) apply to any award made on an India of any award or of availing himself
44

 
arbitration agreement governed in India of any award if this Chapter had

by the law of India. not been enacted.
10. Repeal.–The Arbitration (Protocol 52. Chapter II not to apply.–Chapter II

and Convention) Act, 1937 (6 of 1937), of this Part shall not apply in relation to

shall cease to have effect in relation to foreign awards to which this Chapter

foreign awards to which this Act applies. applies.
11. Rule making power of the High

Court.–The High Court may make rules

consistent with this Act as to-

(a) the filing of foreign awards and

all proceedings consequent

thereon or incidental thereto;

(b) the evidence which must be

furnished by a party seeking to

enforce a foreign award under this

Act; and

(c) generally, all proceedings in court

under this Act.

 

 

56. A comparison of the two sets of provisions would show that section
44, the definition clause in the 1996 Act is a verbatim reproduction of
section 2 of the previous Act (but for the words “chapter” in place of “Act”,
“first schedule” in place of “schedule” and the addition of the word
“arbitral” before the word “award” in section 44). Section 45 corresponds to
section 3 of the previous Act. Section 46 is a verbatim reproduction of
section 4(2) except for the substitution of the word “chapter” for “Act”.
Section 47 is almost a reproduction of section 8 except for the addition of
the words “before the court” “in sub-section (1)” and an explanation as to
45

 
what is meant by “court” in that section. Section 48 corresponds to section 7;
section 49 to section 6(1) and section 50 to section 6(2). Apart from the fact
that the provisions are arranged in a far more orderly manner, it is to be
noticed that the provisions of the 1996 Act are clearly aimed at facilitating
and expediting the enforcement of the New York Convention Awards.
Section 3 of the 1961 Act dealing with a stay of proceedings in respect of
matters to be referred to arbitration was confined in its application to “legal
proceedings in any court” and the court had a wider discretion not to stay the
proceedings before it. The corresponding provision in section 45 of the
present Act has a wider application and it covers an action before any
judicial authority. Further, under section 45 the judicial authority has a
narrower discretion to refuse to refer the parties to arbitration. Under section
4(1) of the 1961 Act, a foreign award for its enforcement was first deemed to
be an award made on a matter referred to arbitration in India. Section 46 of
the present Act dispenses with the provision of sub-section (1) of section 4
and resultantly a foreign award is enforceable in its own right. Section 47 is
almost a reproduction of section 8 except for the addition of the words
“before the court” in sub-section (1) and an explanation as to what is meant
by “court” at the end of the section. Section 49 corresponds to section 6(1)
and section 50 to section 6(2). It is however, a comparison of section 6 of the
46

 
1961 Act with section 49 of the present Act that would be of interest to us
and that provides a direct answer to the question under consideration. As the
comparison of the two sections is of some importance, the two sections are
once again reproduced here:
The Foreign Awards (Recognition and Enforcement) Act, 1961
“6. Enforcement of foreign award.–(1) Where the court is

satisfied that the foreign award is enforceable under this Act,

the court shall order the award to be filed and shall proceed to

pronounce judgment according to the award.

(2) Upon the judgment so pronounced a decree shall follow,

and no appeal shall lie from such decree except in so far as the

decree is in excess of or not in accordance with the award.”
The Arbitration and Conciliation Act, 1996
“49. Enforcement of foreign awards.–Where the Court is

satisfied that the foreign award is enforceable under this

Chapter, the award shall be deemed to be a decree of that

Court.”

 
57. Under section 6 of the 1961 Act, the Court on being satisfied that the
foreign award was enforceable under the Act, would first order the award to
be filed and then proceed to pronounce judgment according to the
award. The judgment would lead to a decree against which no appeal would
lie except insofar as the decree was in excess of or not in accordance
with the award.
47

 
58. Section 49 of the present Act makes a radical change in that where the
court is satisfied that the foreign award is enforceable, the award itself would
be deemed to be a decree of the Court. It, thus, not only omits the procedural
formality for the court to pronounce judgment and a decree to follow on that
basis but also completely removes the possibility of the decree being in
excess of, or not in accordance with the award. Thus, even the limited
basis on which an appeal would lie under sub-section (2) of section 6 of
the 1961 Act, is taken away. There is, thus, no scope left for an appeal
against an order of the court for the enforcement of a foreign award. It is for
this reason that section 50(1)(b) provides for an appeal only against an order
refusing to enforce a foreign award under section 48.
59. There can be no doubt that under section 6, except on the very limited
ground, no appeal including a Letters Patent Appeal was maintainable
against the judgment and decree passed by the Court under section 6(1). It
would be futile, therefore, to contend that though the present Act even
removes the limited basis on which the appeal was earlier maintainable, yet
a Letters Patent Appeal would lie notwithstanding the limitations imposed
by section 50 of the Act. The scheme of sections 49 and 50 of the 1996 Act
is devised specially to exclude even the limited ground on which an appeal
was earlier provided for under section 6 of the 1961 Act. The exclusion of
48

 
appeal by section 50 is, thus, to be understood in light of the amendment
introduced in the previous law by section 49 of the Act.
60. There is another way to look at the matter. It will be illuminating to
see how the courts viewed the Arbitration Act, 1940 shortly after it was
enacted and even while the previous law, the Arbitration Act, 1899 coupled
with the Schedule 2 of the Code of Civil Procedure was still fresh in the
courts’ mind. In Gauri Singh v. Ramlochan Singh, AIR (35) 1948 Patna 430,
the plaintiff had filed a suit for an order for filing an arbitration award and
preparing a decree of the court on that basis. The award was in writing and it
was also registered on the admission of the arbitrators but the award was
made not on the basis of any arbitration agreement in writing but on an oral
reference. Before the division bench of the Patna High Court, the question
arose regarding the maintainability of the suit. Agarwala, C.J. in a brief
order held that Chapter II of the Act would only apply when the agreement
was in writing. In other words, the existence of an “arbitration agreement”
i.e. an agreement in writing, was the foundation of the court’s jurisdiction to
direct the arbitrators, under section 14(2), to cause the award to be filed in
court. But Meredith, J. examined the matter in greater detail. He considered
the question, whether the Act of 1940 was exhaustive or whether it related
only to awards following arbitration agreements within the meaning of the
49

 
Act. The case of the plaintiff was that there was an oral reference to
arbitration. Such an oral reference was perfectly valid and so was the award
upon it. But it did not come within the scope of the Act. The award could,
therefore, be enforced by an ordinary suit under the Code of Civil Procedure.
Rejecting the submission, in paragraphs 20, 21 and 22 of the judgment,
Meredith, J. observed as follows:
“20. ….. It may be regarded as settled that, so far as Sch.2,

Civil P.C., and the Arbitration Act of 1899 were concerned, an

award based upon an oral submission or reference to arbitration

was not touched, but was perfectly legal and valid, and the

award could be enforced by suit, though not by the special

procedure under the provisions of the Civil P.C., or the 1899

Act. That Act was regarded as not exhaustive even in the

limited areas where it was applicable. …..
21. This view was also taken by the Madras High Court in

Ponnamma v. Marappudi Kotamma [19 A.I.R. 1932 Mad. 745],

and also in our own High Court in Ramautar Sah v. Langat

Singh, A.I.R. 1931 Pat. 92. The view there taken was that there

is nothing in law which requires a submission of the dispute

between the parties to arbitration to be in writing. A parole

submission is a legal submission to arbitration.
22. Has the position been altered by the Act of 1940? In my

opinion it has. The Act of 1899 was described as “An Act to

amend the law relating to arbitration”, but the Act of 1940 is

headed as “An Act to consolidate and amend the law relating to

arbitration”, and the preamble says “whereas it is expedient to

consolidate and amend the law relating to arbitration in British

India”. It is an Act to consolidate the arbitration law. This

suggests that it is intended to be comprehensive and exhaustive.

……”
50

 
61. Making reference to sections 47, 26 and 30 of the 1940 Act, in
paragraph 26 of the judgment, His Lordship concluded as follows:
“26. I think I am justified in holding, in view of these

provisions, that the Act was intended to be exhaustive of the

law and procedure relating to arbitration. I cannot imagine that

the words “arbitrations” and “awards” could have been used in

such specific provisions without more, specially having regard

to the definition of award, if it was intended to leave it open to

the parties to an award based upon an oral submission to

proceed to enforce it or set it aside by proceedings by way of

suit altogether outside the Act. Let us take it then that the Act

intended that there should be no such proceedings.”
62. In paragraph 33, he further said:
“If then, as I have held, the Act is intended to be exhaustive,

and contains no provisions for the enforcement of an award

based upon an oral submission, the only possible conclusion is

that the Legislature intended that such an award should not be

enforceable at all, and that no such suit should lie.”
63. In Belli Gowder v. Joghi Gowder, AIR (38) 1951 Madras 683,
Viswanatha Sastri, J. took the same view on a case very similar in facts to
the case in the Patna decision. In paragraph 2 of the judgment, Sastri, J.
observed as follows:
“2. The first point argued by the applt’s learned advocate is that

the suit is one to enforce an award given on oral reference or

submission to arbitration and is not maintainable by reason of the

provisions of the Arbitration Act, 1940. It is common ground that

there was no written submission to the panchayatdars. Prior to

the enactment of the Arbitration Act of 1940 it had been held by

this and other H. Cts that there was nothing in the Arbitration Act

of 1899 or in Sec. 89 and schedule 2 of the C. P. C. of 1908

rendering an oral agreement to refer to arbitration invalid. A
51

 
parole submission was held to be a legal submission to arbitration

and an award passed on an oral reference was held to be valid

and enforceable by a suit though not by the special procedure

prescribed by Sch 2, C. P. C. or the Arbitration Act of 1899….

…. The question whether it was intended merely to make awards

on oral submissions unenforceable under the procedure of the

Arbitration Act or to make them invalid and unenforceable

altogether, would depend to a large extent on whether the Act is

exhaustive of the law of arbitration. I am inclined to think that it

is. I therefore hold that an award passed on oral submission can

neither be filed and made a rule of Ct under the Act, nor enforced

apart from the Act. The same opinion has been expressed in

‘Gauri Singh v. Ramlochan Singh’, AIR (35) 1948 Pat 430: (29

PLT 105).”

 
64. In Narbadabai and Ors. v. Natverlal Chunilal Bhalakia & Anr., AIR
1953 Bombay 386, a division bench of the Bombay High Court went a step
further and held that an arbitration award could only be enforced in terms of
section 17 of the Arbitration Act and a suit filed for enforcement of an award
was not maintainable. Chagla, C.J. speaking for the court, in paragraph 5 of
the judgment, held and observed as follows:
“5. Whatever the law on the subject may have been prior to the

Indian Arbitration Act 10 of 1940, it is clear that when this Act

was passed, it provided a self-contained law with regard to

arbitration. The Act was both a consolidating and amending law.

The main object of the Act was to expedite and simplify

arbitration proceedings and to obtain finality; and in our opinion

when we look at the various provisions of the Arbitration Act, it

is clear that no suit can be maintained to enforce an award made

by arbitrators and an award can be enforced only by the manner

and according to the procedure laid down in the Arbitration Act

itself. Section 14 deals with signing and filing of the award.

Section 15 deals with the power of the Court to modify the award
52

 
in cases set out in that section and Section 16 deals with the

power of the Court to remit the award. Then we come to S.17 and

that provides that

“Where the Court sees no cause to remit the award or any

of the matters referred to arbitration for reconsideration or

to set aside the award the Court shall, after the time for

making an application to set aside the award has expired,

or such application having been made, after refusing it,

proceed to pronounce judgment according to the award,

and upon the judgment so pronounced a decree shall

follow, and no appeal shall lie from such decree except on

the ground that it is in excess of, or not otherwise in

accordance with the award.”
Therefore, Section 17 lays down the procedure by which a decree

can be obtained on an award. The Act gives the right to the

parties to challenge the award by applying for setting aside the

award after the award is filed under Section 14, but if that right is

not availed of or if the application is dismissed and the Court has

not remitted the award, then the Court has to pronounce

judgment according to the award, and upon the judgment so

pronounced a decree has to follow. Mr. Desai does not dispute, as

indeed he cannot, that when the award was published by the

arbitrators, he could have followed the procedure laid down in

the Arbitration Act and could have applied for judgment under

Section 17. But Mr. Desai contends that Section 17 does not

preclude a party from filing a suit to enforce the award. Mr.

Desai says that Section 17 gives a party a summary remedy to

obtain judgment upon the award but that summary remedy does

not bar a suit. …”
65. He, then, considered sections 31 and 32 of the Act and came to hold
as follows:
“6…. Mr. Desai is undoubtedly right that before the Act of

1940 the view was taken that an award did not lose its efficacy

merely because it was not filed and no action was taken on it by

proceedings under the arbitration law. But the question is

whether that view is possible after the Arbitration Act came
53

 
into force and the Legislature enacted S.32. Therefore, with

respect, we agree with the view taken by the Madras High

Court in -‘Moolchand v. Rashid Jamshed Sons & Co.’, [(’46)

AIR 1946 Mad. 346] and the view taken by the Patna High

Court in– ‘Ramchander Singh v. Munshi Mian [(’42) AIR

1942 Bom 101]., & the view taken by the Punjab High Court in

– ‘Radha Kishen v. Ganga Ram [(’51) AIR 1951 Punj 121].

 

7. The result, therefore, is that the plaintiff cannot maintain this

action to enforce the award. ….. Therefore, if we are right in

the view we take as to the interpretation of Section 32, then it is

clear that Shah J. with respect, had no jurisdiction to try a suit

which in substance and in effect was a suit to enforce an award.

The result, therefore, is that the suit must fail on the preliminary

ground that the suit is not maintainable, the suit being one to

enforce an award duly given by arbitrators appointed by the

parties and also because the award deals with the very disputes

which are the subject-matter of the suit. ….”

 
66. In S.N. Srikantia & Co. v. Union of India and Anr., AIR 1967
Bombay 347, the question that arose for consideration was whether a court
has the power to grant interest on the principal sum adjudged by an award
from the date of the award till payment. The plaintiff in the case claimed that
the court should award interest in the principal sum adjudged by the award at
a certain rate from the date of the award till the date of the decree, and
further interest on the said principal sum at another rate from the date of the
decree till payment. The plaintiff’s claim was resisted on the plea that under
section 29 of the 1940 Act, interest on the principal sum adjudged by an
award could not be granted from the date of the award till the passing of the
54

 
decree. It was contended on behalf of the plaintiff that section 29 was merely
an enabling provision but that cannot stand in the way of the court in
awarding interest for the prior period, namely, from the date of the award
onwards till the passing of the decree. Tulzapurkar, J., (as his Lordship then
was) referred to the earlier decisions of the Bombay High Court in
Narbadabai and relying upon the decisions of Patna High Court in Gauri
Singh and Madras High Court in Belli Gowder held an observed as follows:
“I may mention that a contention was raised in that case that

though Section 17 of the Act laid down the procedure by which

a decree could be obtained on an award that Section gave a

summary remedy to a party to an award for a judgment upon an

award, but that such summary remedy did not bar a suit to

enforce an award. This contention was negatived by this Court

and it was held that for enforcing an award the procedure laid

down in the Act itself could alone be availed of by a party to

the award. It is no doubt true that Section 32 of the Act was

referred to, which expressly barred suits “for a decision upon

the existence, effect or validity of an award” and it was held

that the expression “effect of the award” was wide enough, to

cover a suit to enforce an award. At the same time this Court

did take the view that since the Act was a self-contained Code

with regard to arbitration and was exhaustive, an award could

be enforced only by the manner and according to the procedure

laid down in section 17 of the Act. In my view, these decisions

and particularly, the decisions of the Patna High Court and the

Madras High Court clearly indicate the corollary which follows

upon an Act being regarded as exhaustive viz.. that it carries

with it a negative import that only such acts as are mentioned in

the Act are permissible to be done and acts or things not

mentioned therein are not permissible to be done. In my view,

Section 29 of the Act also is exhaustive of the whole law upon

the subject of “interest on awards” and since the said section

enables the court to award interest on the principal sum
55

 
adjudged by an award from the date of the decree onwards, it

must be held that it carries with it the negative import that it

shall not be permissible to the Court to award interest on the

principal sum adjudged by an award for any period prior to the

date of the passing of the decree.”

 
67. We have so far seen the decisions of the High Courts holding that a
suit for enforcement of an arbitration award made on an oral reference was
not maintainable, an arbitral award could only be enforced in terms section
17 of the Arbitration Act and a suit for the enforcement of an arbitral award
was not maintainable, and third, that no interest could be awarded on the
amount adjudged in the award beyond the provisions of section 29 of the
Arbitration Act.
68. We now come back to the decision of this Court in Mohindra Supply
Co. in which the issue was about the maintainability of an appeal,
particularly, a letters patent appeal. It is seen above that, in Mohindra Supply
Co. the court held that a letters patent appeal was not maintainable in view
of section (2) of section 39 of the 1940 Act. To that extent, the decision may
not have any bearing on the present controversy. But, in that decision
observations of great significance were made in regard to the nature of the
1940 Act. It was observed (SCR page 500):
“The proceedings relating to arbitration are, since the

enactment of the Indian Arbitration Act X of 1940, governed by

the provisions of that Act. The Act is a consolidating and
56

 
amending statute. It repealed the Arbitration Act of 1899,

Schedule 2 of the Code of Civil Procedure and also cls. (a) to

(f) of s. 104(1) of the Code of Civil Procedure which provided

for appeals from orders in arbitration proceedings. The Act set

up machinery for all contractual arbitrations and its provisions,

subject to certain exceptions, apply also to every arbitration

under any other enactment for the time being in force, as if the

arbitration were pursuant to an arbitration agreement and as if

that, other enactment were an arbitration agreement, except in

so far as the Arbitration Act is inconsistent with that other

enactment or with any rules made thereunder. …. …”
69. It was further observed and held (SCR page 506):
“But it was urged that the interpretation of s.39 should not be

divorced from the setting of legislative history, and if regard be

had to the legislative history and the dictum of the Privy

Council in Hurrish Chunder Chowdry v. Kali Sundari Debia

[(1882) L.R.10 I.A. 4, 17] which has been universally followed,

in considering the extent of the right of appeal under the Letters

Patent, the Court would not be justified in restricting the right

of appeal which was exercisable till 1940 by litigants against

decisions of single Judges of High Courts in arbitration matters

from orders passed in appeals. In considering the argument

whether the right of appeal which was previously exercisable

by litigants against decisions of single Judges of the High

Courts in appeals from orders passed in arbitration proceedings

was intended to be taken away by s. 39(2) of the Indian

Arbitration Act, the Court must proceed to interpret the words

of the statute without any predisposition towards the state of the

law before the Arbitration Act was enacted. The Arbitration

Act of 1940 is a consolidating and amending statute and is

for all purposes a code relating to arbitration…..”
70. And (SCR pages 512-513):
“Prior to 1940 the law relating to contractual arbitration (except

in so far as it was dealt with by the Arbitration Act of 1899)

was contained in the Code of Civil Procedure and certain orders

passed by courts in the course of arbitration proceedings were
57

 
made appealable under the Code of 1877 by s. 588 and in the

Code of 1908 by s.104. In 1940, the legislature enacted Act X

of 1940, repealing schedule 2 and s. 104(1) clauses (a) to (f) of

the Code of Civil Procedure 1908 and the Arbitration Act of

1899. By s. 39 of the Act, a right of appeal was conferred upon

litigants in arbitration proceedings only from certain orders and

from no others and the right to file appeals from appellate

orders was expressly taken away by sub-s.2 and the clause in

s.104 of the Code of 1908 which preserved the special

jurisdiction under any other law was incorporated in s. 39. The

section was enacted in a form which was absolute and not

subject to any exceptions. It is true that under the Code of 1908,

an appeal did lie under the Letters Patent from an order passed

by a single Judge of a Chartered High Court in arbitration

proceedings even if the order was passed in exercise of

appellate jurisdiction, but that was so, because, the power of the

Court to hear appeals under a special law for the time being in

operation was expressly preserved.”
“There is in the Arbitration Act no provision similar to s. 4 of

the Code of Civil Procedure which preserves powers reserved

to courts under special statutes. There is also nothing in the

expression “authorised by law to hear appeals from original

decrees of the Court” contained in s. 39(1) of the Arbitration

Act which by implication reserves the jurisdiction under the

Letters Patent to entertain an appeal against the order passed in

arbitration proceedings. Therefore, in so far as Letters Patent

deal with appeals against orders passed in arbitration

proceedings, they must be read subject to the provisions of

s. 39(1) and (2) of the Arbitration Act.”
“Under the Code of 1908, the right to appeal under the Letters

Patent was saved both by s. 4 and the clause contained in

s. 104(1), but by the Arbitration Act of 1940, the jurisdiction of

the Court under any other law for the time being in force is not

saved; the right of appeal can therefore be exercised against

orders in arbitration proceedings only under s. 39, and no

appeal (except an appeal to this Court) will lie from an

appellate order.”
58

 
71. Mohindra Supply Co. was last referred in a constitution bench
decision of this Court in P.S. Sathappan, and the way the constitution bench
understood and interpreted Mohindra Supply Co. would be clear from the
following paragraph 10 of the judgment:
“10…..The provisions in the Letters Patent providing for

appeal, in so far as they related to orders passed in Arbitration

proceedings, were held to be subject to the provisions of

Section 39(1) and (2) of the Arbitration Act, as the same is a

self-contained code relating to arbitration.”
72. It is, thus, to be seen that Arbitration Act 1940, from its inception and
right through 2004 (in P.S. Sathappan) was held to be a self-contained code.
Now, if Arbitration Act, 1940 was held to be a self-contained code, on
matters pertaining to arbitration the Arbitration and Conciliation Act, 1996,
which consolidates, amends and designs the law relating to arbitration to
bring it, as much as possible, in harmony with the UNCITRAL Model must
be held only to be more so. Once it is held that the Arbitration Act is a self-
contained code and exhaustive, then it must also be held, using the lucid
expression of Tulzapurkar, J., that it carries with it “a negative import that
only such acts as are mentioned in the Act are permissible to be done and
acts or things not mentioned therein are not permissible to be done”. In other
words, a Letters Patent Appeal would be excluded by application of one of
the general principles that where the special Act sets out a self-contained
59

 
code the applicability of the general law procedure would be impliedly
excluded.
73. We, thus, arrive at the conclusion regarding the exclusion of a letters
patent appeal in two different ways; one, so to say, on a micro basis by
examining the scheme devised by sections 49 and 50 of the 1996 Act and the
radical change that it brings about in the earlier provision of appeal under
section 6 of the 1961 Act and the other on a macro basis by taking into
account the nature and character of the 1996 Act as a self-contained and
exhaustive code in itself.
74. In light of the discussions made above, it must be held that no letters
patent appeal will lie against an order which is not appealable under section
50 of the Arbitration and Conciliation Act, 1996.
75. In the result, Civil Appeal No.36 of 2010 is allowed and the division
bench order dated May 8, 2007, holding that the letters patent appeal is
maintainable, is set aside. Appeals arising from SLP (C) No.31068 of 2009
and SLP (C) No.4648 of 2010 are dismissed.
76. SLP (C) Nos.13626-13629 of 2010 and SLP (C) Nos.22318-22321 of
2010 are dismissed insofar as they seek to challenge the orders of the
division bench holding that the letters patent appeals were not maintainable.
60

 
These two SLPs may now be listed only in regard to the challenge to the
orders passed by the single judge.
77. There will be no order as to costs.

 

 
……………………

……J.

(AFTAB ALAM)

 

 

……………………

……J.

(R.M. LODHA)

New Delhi;

July 8, 2011.

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,883,999 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com
%d bloggers like this: