SURESH JAYANTILAL AJMERA Vs. RASIKLAL GOKALDAS AJMERA

JUDGEMENT

(1.) THIS is an appeal from the order of the learned Single Judge rejecting the application of the appellants under section 28 of the Arbitration Act, 1940 (the "act") for extending the time for making the award.

(2.) WHEN this appeal was taken up for hearing, Mr. Virendra Tulzapurkar, learned Counsel for the respondents, raised a preliminary objection in regard to the maintainability of this appeal. It was contended that no appeal lies against an order under section 28 of the Act refusing to enlarge the time for making an award. Our attention was drawn to section 39 of the Act, which provides for appeal, to show that an order under section 28 refusing to enlarge time for making the award is not included in the list of appealable orders set out in sub-section (1) thereof. It was submitted that appeal lies under section 39 (1) of the Act only from the orders specified therein and "from no others". It was also submitted that no appeal lies from the impugned order even under Clause 15 of the Letters Patent in view of the specific prohibition contained in section 39 of the Act. In support of the above contentions, reliance was placed by Mr. Tulzapurkar on the decisions of the Supreme Court in (Union of India v. Mohindra Supply Co.) A. I. R. 1962 S. C. 256 and (State of West Bengal v. Gourangalal Chatterjee) (1993) 3 S. C. C. 1 and the decisions of this Court in (Shiv Omkar v. Bansidhar) A. I. R. 1956 Bombay 459; (Municipal Corpn. of Greater Bombay v. Patel Engineering Co. Ltd.) 1994 (3) Bom. C. R. 139 : A. I. R. 1994 Bombay 80 and (M. H. Telani v. Kulsumbai) A. I. R. 1967 Bombay 300. Our attention was also drawn to the decision of the Andhra Pradesh High Court, in (P. Ramula v. N. Appalaswami) A. I. R. 1957 Andhra Pradesh 11.

(3.) IN reply to the above preliminary objection of Mr. Tulzapurkar, Mr. Doctor, learned Counsel for the appellants, submits that an order of the Court under section 28 of the Act refusing to extend the time for making an award amounts to supersession of the arbitration within the meaning of item (i) of sub-section (1) of section 39 of the Act and hence appeal lies from such an order. In support of the above contention, Mr. Doctor relies on the decision of the Kerala High Court in (E. K. Abdulkhader Haji v. Thalakkal Kunhammad) A. I. R. 1986 Kerala 3 and decision of this Court in M. H. Telani v. Kulsumbai, A. I. R. 1967 Bombay 300. In the alternative, Mr. Doctor submits that even if no appeal lies from the above order under section 39 (1) of the Arbitration Act, appeal would be maintainable under Clause 15 of the Letters Patent. Reliance is placed in support of this contention on the decision of Madras High Court in (Martirosi v. Subramaniam Chettiar) A. I. R. 1928 Madras 69. So far as the decision of the Bombay High Court in Shiv Omkar v. Bansidhar (supra) is concerned, Mr. Doctor submits that the ratio of the said decision will not apply to the present case because that was a case where time had been extended by the Court and the challenge was to the extension of time, whereas in the present case the learned Judge has refused to extend time which has the effect of superseding the arbitration. This aspect of the controversy, according to Mr. Doctor, was not before this Court in the above case and hence the ratio of the same cannot help the respondents in this appeal.