Madras High Court
Karaikal Municipality By The ... vs Nabissa Ummal And Ors. on 24 March, 2004
Equivalent citations: 2004(2)ARBLR280(MADRAS), 2004(2)CTC334, (2004)2MLJ554
JUDGMENT
1. The above appeal is filed against the order dated 19.12.2000 in C.M.A.No.874 of 1998 passed by the learned single Judge of this Court.
2. We need not go into the merits of the case, in view of the preliminary objection raised by the learned counsel for the respondents regarding maintainability of the above appeal.
3. According to the learned counsel for the respondents, second appeal is not maintainable, as barred under Section 39(2) of the Arbitration Act, 1940. To appreciate the said condition, it is beneficial to extract Section 39 of the Arbitration Act, 1940, which reads as follows:
" Section 39: Appealable orders.
(1) An appeal shall lie from the following orders passed under this Act and from none 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. "
Section 39(2) of the Arbitration Act prohibits filing of a second appeal from an order passed in appeal, which is dealt with under Sub Section (1). Now, the question is whether such a prohibition will apply even to the appeals under Clause 15 of the Letters Patent.
4. Originally, in Radhakrishnamurthy V. Ethirajulu Chetty & CO. (AIR 1945 Madras 184), a Division Bench of this Court held that the Arbitration Act, being an Act of the Central Legislature, the provisions of Section 39 of that Act must prevail over Clause 15 of the Letters Patent, and therefore, in the case of an order passed in appeal under Section 39 of the Arbitration Act, no second appeal lies under Clause 15 of the Letters Patent by reason of Section 39(2) of the Act.
5. The said judgment has been over-ruled by a decision of the Full Bench in Moolchand Kevalchand Daga v. Kissindoss Giridhardoss, (1974 L.W. 408), holding that the expression "Second Appeal" in Section 39(2) of the Arbitration Act would not apply to an appeal under Clause 15 of the Letters Patent from one Judge of the High Court to two or more Judges of the same Court. The above-said principle held in the said judgment has been declared as not good law by the Supreme Court in Union of India V. Mohindra Supply CO. . The Apex Court has held as follows:
"(5)The problem to which attention must then be directed is whether the right to appeal under the Letters Patent is at all restricted by S. 39, Sub-ss. (1) and (2). Clause 10 of the Letters Patent of the High Court, in so far as it is material, provides:
"And we do further ordain that an appeal shall lie to the said High Court ............... from the judgment (not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction ........) of one Judge of the High Court....."
By this clause, a right to appeal except in the cases specified, from one Judge of the High Court to a Division Bench is expressly granted. But the Letters Patent are declared by Cl.37 subject to the legislative power of the Governor-General in Council and also of the Governor-in-Council under the Government of India Act, 1915, and may in all respects be amended or altered in exercise of legislative authority. Under S. 39(1), an appeal lies from the orders specified in that sub-section and from no others. The legislature has plainly expressed itself that the right of appeal against orders passed under the Arbitration Act may be exercised only in respect of certain orders. The right to appeal against other orders is expressly taken away. If by the express provision contained in S. 39(1), a right to appeal from a judgment which may otherwise be available under the Letters Patent is restricted, there is no ground for holding that cl.(2) does not similarly restrict the exercise of appellate power granted by the Letters Patent. If for reasons aforementioned the expression "second appeal" includes an appeal under the Letters Patent, it would be impossible to hold that notwithstanding the express prohibition, an appeal under the Letters Patent from an order passed in appeal under sub-s.(1) is competent. "
"(17)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. "
6. The said judgment is followed and the principles therein are also approved by the Apex Court in the later judgment in State of West Bengal V. M/S.Gourangalal Chaterjee . In the said judgment also, it is held as follows:
"3. Section 39 of the Arbitration Act came up for consideration in Union of India V. mohindra SUPPLY CO. . The Court after going into detail and examining various authorities given by different High Courts held that no second appeal lay under Section 39(2) against a decision given by a learned Single Judge under Section 39(1). In respect of the jurisdiction under Letters Patent the Court observed that since Arbitration Act was a consolidating and amending Act relating to arbitration it must be construed without any assumption that it was not intended to alter the law relating to appeals. The Court held that in view of bar created by sub-section (2) of Section 39 debarring any second appeal from an order passed in appeal under sub-section (1) the 'conclusion was inevitable that it was so done with a view to restrict the right of appeal within strict limits defined by Section 39'. Therefore, so far the second part is concerned, namely, the maintainability of the appeal under Letters Patent it stands concluded by this decision. "
7. Again, in the recent judgment of the Apex Court in Union of India V. Aradhana Trading Co. , the Apex Court has reiterated the above-said principle, holding as follows:
"12. So far the question as to whether the order passed by the learned single Judge rejecting the application for recalling/setting aside ex parte order dated 27.1.1998 is concerned, it cannot be treated as an order refusing to set aside the award. This position would stand covered by the decision in the case of Neeilkantha Shidramappa Ningashetty (supra) as it has been held if there was no objection before the Court for setting aside the award, no question of refusal to set it aside could arise. Hence no appeal under Section 39(1)(vi) of the Arbitration Act would be maintainable. The ground of challenge of the award was that the limitation to file the objection was to run with effect from the date of service of a written notice for filing the objection which contention was repelled by the Bench consisting of four Hon'ble Judges holding that the knowledge of the appellant of the Award having been filed and time allowed to file objections was sufficient notice. In the present case also it is to be found that no objections to the award had been filed despite due notice and nor evern subsequently while counsel is said to have been attending the Court on two dates fixed in the case. In this view of the matter it would not be necessary to go into other aspect of the matter or the view taken in some other cases as referred to in the earlier part of the judgment. Some cases, a reference of which has been made earlier relate to the question of maintainability of a second appeal in Letters Patent against the appellate order passed under Section 39(1) of the Arbitration Act as in the case of Mohindra Supply Company (supra) where the Bench of four Hon'ble Judges held that in view of Clause (2) of Section 39 of the Arbitration Act, an appeal against an appellate order under the Letters Patent was not maintainable. The restriction to appeal contained under sub-Sec.(2) of Section 39 was applicable to Letters Patent. So restriction contained under sub-sec.(1) of Sec. 39 of the Arbitration Act shall also be applicable. "
In view of the above-said principles of law, the L.P.A. filed by the appellant against the judgment and decree in C.M.A.No.874 of 1998 cannot be sustained. Hence, the appeal is dismissed. No costs.