SUREKA STEEL LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) We have heard Mr. S.N. Mukherjee for appellant and Mr. Sunil Mitra for respondent No. 1 as regards the maintainability of the appeal.

(2.) This appeal is directed against the order dated 3rd Dec., 1996 of a learned Single Judge of this Court passed in Civil Suit No. 93(A) of 1996 whereby an application made by the appellant, who is defendant No. 1 in the Civil Suit, under Sec. 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as the Act) was rejected on the ground that reliefs have been claimed in the Civil Suit against respondent No. 2 as well who is not a party to the arbitration agreement even when reliefs can only be granted in the presence of the appellant. Learned Counsel for respondent No. 1 has submitted that the appeal is not maintainable for the reason that Sec. 37(1) of the Act does not specify an order passed under Sec. 8 as an order from which an appeal is permissible. According to the learned Counsel, since sub-section (1) of said Sec. 37(1) provides for appeals only against those orders which are specified thereunder and further stipulates that an appeal does not lie from any other order, an appeal does not lie from an order of a class not specified thereunder either under Sec. 37 of the Act or under clause 15 of the Letters Patent, particularly, in view of Clause 44 of the Letters Patent which makes all the provisions of the Letters Patent subject to the law of the appropriate legislature. On the other hand, learned Counsel for the appellant has submitted that an order rejecting an application under Sec. 8 amounts to judgment within the meaning of Clause 15 of the Letters Patent and as such appeal lies against such an order under the Letters Patent. He has sought to derive support from certain observations in Shah Bahulal Khimji Vs. Jayaben D. Kania & Anr, AIR 1981 SC 1786 . Sec. 37 of the Act reads as follows:

(3.) Sec. 37(1) of the Act specifies those orders of the Court from which an appeal lies to the Court authorised by law to hear appeals form original decrees of the Court passing the order. It further stipulates that an appeal shall not lie from any order not specified therein. Clause 15 of the Letters Patent read with Clause 44 being subject to the law of an appropriate legislature, interdiction of an appeal from an order not specified under Sec. 37(1) would exclude the operation of clause 15 of the Letters Patent with regard to such appeal. In State of West Bengal Vs. Gouragalal Chatterjee, (1993)3 SCC 1 similar controversy came to be considered by the Apex Court. There the question was whether an appeal is maintainable either under Sec. 39(2) of the Arbitration Act, 1940 or under the Letters Patent from an order not covered in either of the six clauses mentioned in Sec. 39. Material portion of Sec. 39(1) is in the same terms in which Sec. 37(1) of the 1996 Act is couched, in as much as Sec. 39(1) also specifies the orders from which an appeal lies with further stipulation that an appeal would not lie from any order not specified thereunder. It was held that an appeal could lie only from the orders mentioned in sub-Section (1) itself and since the impugned order passed by the learned Single Judge was not covered in any of the six clauses mentioned therein it is obvious that no appeal could be filed against the order of the learned Single Judge. This decision is an authority for the proposition that an appeal does not lie under the Letters Patent from an order of a learned Single Judge, which is not mentioned in sub-section (1) of Sec. 39 of the Act of 1940. To the same effect are the decision of this Court in Union of India Vs. K. Satyanarayan & Co., (1995)1 Cal LJ 458 and Santosh Kumar Agarwal Vs. Phalguni-Banerjee, (1994)1 Cal HN 113 . All these authorities are fully applicable to the present controversy. In our view Shah Babulal Khimji Vs. Jayaben (supra) is of no assistance to the appellant. There the plaintiff-appellant had filed a suit on the original side of the Bombay High Court for specific performance of a contract and prayed for an interm relief by appointing a receiver of the suit- property and injuncting the defendant from disposing of the suit- property during the pendency of the suit. The learned Single Judge after hearing the notice of motion dismissed the application for appointment of receiver as also for interim injunction. Thereafter, the plaintiff appellant filed an appeal before the Bombay High Court which dismissed the appeal as being non-maintainable on the ground that the Order impugned (order of the single Judge) was not a judgment as contemplated by Clause 15 of the Letters Patent of the High Court. Since Orders under Rule 1 and Rule 2 of the Order 39 and Rule 1 and Rule 4 of Order 40 of the Code of Civil Procedure are appealable under Order 43, Rule 1. C.P.C., one of the questions for consideration was whether the provisions of Order 43 Rule 1 are inconsistent with Clause 15 of the Letters Patent or whether Sec. 104 read with Order 43 Rule 1, C.P.C. could not apply to the original trial by the Trial Judge which is governed by the Letters Patent Clause , and as such whether an order refusing to appoint receiver and to grant injunction by a Learned Single Judge is not appealable before the Division Bench. It was held that a combined reading of the various provisions of the Code of Civil Procedure leads to the irresistible conclusion that Sec. 104 read with Order 43, Rule 1 clearly applies to be proceedings before the Trial Judge of the High Court and does not in any way abridge, interfere with or curb the powers conferred on the Trial Judge by Clause 15 of the Letters Patent. Further it was pointed out that what Sec. 104 read with Order 43, Rule 1 does is merely to give an additional remedy by way of an appeal from the orders of the Trial Judge to a larger Bench. There is nothing to show that the Letters Patent in any way excludes or overrides the application of Sec. 104 read with Order 43 or to show that these provisions would not apply to internal appeals. While considering Pandey Dagadu Vs. Jamnadas Chotumal Marwadi, AIR 1923 Bom. 218 the Court pointed out in paragraph 60 that the decision in that case appears to have overlooked "that far from excluding the Code there could be other special Acts which could and did confer additional jurisdiction even in internal appeals to the High Court, viz., from an order passed by Trial Judge to a larger Bench, for instance Sec. 39 of the Arbitration Act or Sec. 202 of the Indian Companies Act and other similar local or special Acts. If these special Acts could without affecting the jurisdiction of the Letters Patent or overriding the same provided a supplementary or additional jurisdiction, there was no reason why the Code of Civil Procedure also could not do the same particularly when the Trial Judge had to adopt the procedure contained in the Code, starting from the presentation of the plaint to the delivery of judgment." On the basis of these observations Learned Counsel for the appellant submits that since the impugned order affects the valuable right of the appellant it amounts to judgment and an appeal lies under Clause 15 of the Letters Patent even though no appeal is contemplated under Sec. 37 of the Act. This argument overlooks the fact that the impugned order is not an order passed under the Code of Civil Procedure which is Sec. 4(1) provides that in the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. The impugned order is one which has been passed under the Arbitration Act which is a self-contained code as regards Arbitration and Sec. 37 of which clearly excludes an appeal from an order of a Court not specified in sub-section (1) of Sec. 37 of the Act. In Khimjis case (supra) the Court was not concerned with the effect of any statutory provision similar to Sec. 37 of the Act on Letters Patent. On the other hand, State of W.B. Vs. Gourangalal Chatterjee (supra) is a direct authority on the issue before us.