Bombay High Court
International Thermal vs Esteem Projects Pvt. Ltd on 19 March, 2009
Author: A.A.Sayed
Bench: S.A.Bobde, A.A.Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.485 OF 2005
IN
NOTICE OF MOTION NO.1238 OF 2003
IN
SUMMARY SUIT NO. 332 OF 2003
International Thermal
Technology Kirchner Italia
Branch ,S.P.A. ..Appellant
V/s
Esteem Projects Pvt. Ltd. ..Respondent
Shri S.R. Shah i/b Shah Legal for the Appellant
Snehal Shah with S.V. Uttam with M. Pardiwala i/b
Pardiwala & Co. for the Respondent
CORAM ; S.A.BOBDE AND
A.A.SAYED, JJ.
ig DATE : 19TH MARCH, 2009
P.C.
1. This is an appeal by a defendant against the
order of the learned Single Judge dismissing the
appellant's motion for referring the dispute under
Section 8 of the Arbitration and Conciliation Act 1996.
2. The appellant is a defendant in Summary Suit No.332 of 2003. Hereinafter, the parties are referred to as arrayed in the suit for the sake of convenience.
The plaintiff has sued the defendant for recovery of an amount allegedly due under an order for works of material supply and shop fabrication of steel work etc. On service of the writ of summons the defendant entered appearance and took out an motion for referring the ::: Downloaded on - 09/06/2013 14:25:57 ::: :2: parties to arbitration under section 8 of the Arbitration and Conciliation Act,1996. According to the defendant, clause 14 of the general terms and conditions of purchase requires that disputes which are not mutually resolved be referred to arbitration. The learned Single Judge came to the conclusion that the defendant failed to prove that the general terms and conditions of the purchase were never agreed between the parties or formed part of the contract and therefore, dismissed the motion.
3. Aggrieved thereby, the defendant has filed the present appeal. Ms Shah, the learned Counsel for the respondent raised a preliminary objection about the maintainability of this appeal. According to the learned Counsel for the respondent, the present appeal is against an order from which no appeal lies under section 37 of the Arbitration and Conciliation Act, 1996, which reads as follows:-
"Appealable orders.- (1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to to hear appeals from original decrees of the Court passing the order, namely:-
(a) granting or refusing to grant any measure under section 9;
(b) setting aside or refusing to set aside an arbitral award under section 34.::: Downloaded on - 09/06/2013 14:25:57 ::: :3:
(2) An appeal shall also lie to a Court from an order granting of the arbitral tribunal.
(a) accepting the plea referred in sub-section (2) or sub-section (3) of section 16; or
(b) granting or refusing to grant an interim measure under section 17.
(3) 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.
On a plain construction of the provision it is clear that an appeal is provided only from the orders specified therein i.e. (a) granting or refusing to set grant any measure under section 9 or setting or refusing to aside the arbitral award under section 34, (b) from an order accepting plea that the arbitral tribunal has no jurisdiction and (c) an order granting or refusing to grant an interim measure under section 17.
4. The words in parenthesis (and from no others), are equally important. These words are intended to remove any doubt that might arise about the maintainability of an appeal from any order other than those specified. The words emphasise that an appeal only lies from orders specified in the section and no others. The only thing that needs to be seen therefore is whether an appeal lies from an order under section 8 of the Arbitration and Conciliation Act, 1996. It is ::: Downloaded on - 09/06/2013 14:25:57 ::: :4: clear that an appeal is not provided under section 37.
An order refusing to refer the dispute to arbitration
under section 8 is not
an order which falls in any of the categories specified in section 37 and therefore is not appealable.
5. The view taken by us finds support in a decision of a Division Bench of the Punjab and Haryana High Court in the case of Hind Samachar Limited, Jalandhar - Smt. Sudarshan Chopra and others V. Vijay Kumar Chopra and others, reported in (2002) 4 Company Law Journal 1, pointed out igby Ms Shah, the learned Counsel for the respondent. The Division Bench of Punjab and Haryana High Court observed in para 36 as follows:-
"Having dealt with all issues canvassed by learned counsel, we now endeavour to draw conclusions based on our interpretation of section 37 of the Arbitration Act, 1996. In the absence of judicial precedent on the pointed issue, we will embark upon the controversy on first principles. We have already concluded above that even a remedy of appeal would not be available unless expressly provided for, while interpreting section 5 of the Arbitration Act, 1996. We have also concluded that the term "orders" referred in Section 37 of the Arbitration Act, 1996, refers to orders passed under Part I of the Arbitration Act, 1996. The question then is whether the remedy of appeal is excluded against an order passed by a "judicial authority" under section 8 of the Arbitration Act, 1996? In our view, it is. The reason for the aforesaid conclusion are the words 'and from no others' qualifying the word 'orders' it leaves no doubt that section 37 (1)) of the Arbitration Act, 1996, does not delineate an inclusive list of appealable order, but defines the exhaustive ::: Downloaded on - 09/06/2013 14:25:57 ::: :5: list of orders from which an appeal under the provisions of the Arbitration Act, 1996, is competent. Since the list is exhaustive, and since an order passed by a "judicial authority"
under section 8 of the Arbitration Act, 1996, is not included therein, it would been enevitable to conclude that the remedy of appeal there from is expressly excluded."
6. Ms Shah further submitted that in the context of an appeal arising out of another kind of order the Division Bench of this Court construed the provisions strictly in State of Maharashtra and another V. Ramdas Construction Co. and another, reported in 2006 (6) Mh.L.J. 678. An appeal was preferred against an order refusing to condone the delay in making an application for setting aside the arbitral award. It was contended that since the appeal lay against an order setting aside or refusing to set aside the arbitral award, an appeal against an order is an application for condonation of delay in making such application for setting aside the award must be construed to be tenable. The Division Bench held that section 37 does not permit the appeal against the order rejecting an application for condonation of delay even if an order on the application for condonation of delay would result in an order on the application for setting aside an award against which an appeal is tenable. The Division Bench held that an order on an application for condonation of delay is not an appealable order. We are in respectful agreement ::: Downloaded on - 09/06/2013 14:25:57 ::: :6: with the view of the Division Bench.
7. We therefore, conclude that no appeal is provided for in section 37 of the Arbitration and Conciliation Act, 1996 against the order under section 8 of that Act.
8. In the result the appeal is liable to be dismissed and is accordingly dismissed.
(S.A.BOBDE, J.)
( A.A. SAYED, J.)
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