LOYAL TEXTILE MILLS LIMITED Vs. ALLENBERG COTTON COMPANY

JUDGEMENT

(1.) A petition was filed under Section 33 of the Arbitration Act on the Original side of this court for a declaration that there was no arbitration agreement between the petitioner/appellant and the first respondent herein and that the arbitration proceeding entered into by the respondents 3 and 4 under the auspices of the second respondent at the behest of the first respondent was without jurisdiction, illegal, ab initio void and non est. A learned single Judge of this court, after notice and hearing the parties, dismissed the petition. The petitioner/appellant invoked clause 15 of the Letters Patent of this court and preferred an appeal against the judgment of the learned single Judge dismissing his petition. At the final hearing of the appeal, however, learned counsel appearing for the first respondent raised an objection as to the maintainability of the appeal and contended that the order of the learned single Judge rejecting the petition under Section 33 of the Arbitration Act, 1940 is not appealable. The Bench hearing the appeal. However, thought that to give a finality to such objection, the matter should be referred to a Full Bench.

(2.) The original civil jurisdiction of this court as to suits is preserved under clause 12 of the Letters Patent of this court in these words :

(3.) On the question whether the interdict in sub-section (2) of Section 39 of the Act operated against an appeal under the Letters Patent, there had been divergence of opinion amongst High Courts, but this court in Radhakrishna Murthy v. Ethirajulu Chetty and Co. 1945 AIR(Madras) 184 = 58 LW 510), took the view that there was no further right of appeal under the Letters Patent when a single Judge of the High Court disposed of an appeal under Section 39(1) of the Act. A Full Bench of this court in Mulchand Kewal Chand Daga v. Kissan Dass Gridhardass (74 LW 408), overruled the Judgment in Radhakrishna Murthy v. Ethirajulu Chetty Co. (supra) and held that Section 39 deals only with appeals from orders passed by a court to a superior court and not with appeals "intra-court" and therefore, Section 39(2) does not operate to prohibit an appeal under the Letters Patent against the order of a single judge exercising appellant jurisdiction in an arbitration matter. The matter, however, was finally settled by a judgment of the Supreme Court in Union of India v. Mohindra Supply Co. 1962 AIR(SC) 256, 1962 (2) SCJ 179, 1962 (3) SCR 497, 1962 ALJ 1, 1962 (2) MLJ 63, 1962 (2) AnWR(SC) 63, 1962 (2) MLJ(SC) 63, 1962 All(LJ) 1, 1977 AIR(Cal) 285, 1962 (2) MLJ 63, 1962 (2) An WR 63 The Supreme Court, dealing with Clause 10 of the Letters Patent of the Punjab High Court having no ordinary original civil jurisdiction and having the Letters Patent appellate power in these words.