Gujarat High Court
Ravibhai Alias Dharmendrabhai ... vs Anshuben Mohanbhai Jaishal on 18 October, 2021
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/AO/19/2021 ORDER DATED: 18/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 19 of 2021
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RAVIBHAI ALIAS DHARMENDRABHAI BINDUBHAI BRAHMBHATT
Versus
ANSHUBEN MOHANBHAI JAISHAL
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Appearance:
NATASHA SUTARIA(7907) for the Appellant(s) No. 1
RAHUL SHARMA(8276) for the Respondent(s) No. 1
SUBODHKANT B PARMAR(10133) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 18/10/2021
ORAL ORDER
1. This Appeal from Order under Order 43 Rule 1 of the Civil Procedure Code, 1908 is at the instance of the original appellant in C.M.A. No. 40 of 2017 and is directed against the order passed by the 3rd Additional District Judge, Gandhinagar below Exh.29 dated 01.01.2021. The impugned order is passed below Exh.29 preferred by the original opponent (wife) under Order-7 Rule-11 r/w. Section 9 of the Guardian and Wards Act, 1890 (for short 'the GW Act' 1890') and Section 151 of the Code of Civil Procedure, 1908 (for short 'the CPC').
2. Being aggrieved by the same, the present Appeal from Order has been preferred by the appellant- husband on the ground that the Court below has returned the application filed by the appellant to be presented before the competent Court.
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3. This Court at the outset questioned the maintainability of the present Appeal from Order under Order-43 Rule-1 of the CPC, in view of the expressed language of Section 104 of the CPC. Since this Court is assessing the maintainability of the present Appeal from Order, only facts germane to decide the said issued are stated herein-below.
3.1. The appellant (original appellant-husband) and the respondent(wife) entered into wedlock on 19.11.2013 as per the Hindu rites and rituals and son Himalaya was born out of the said wedlock on 27.07.2014.
3.2. It is the case of the appellant that the respondent left the matrimonial home on 31.07.2016 without any reason and the son is in the custody of the respondent since then.
3.3. It is an admitted position by both the parties that the minor son 'Himalaya' is with the respondent-mother and residing at Muland, Mumbai since 31.07.2016.
3.4. The application being CMA No. 40 of 2017 came to be filed by the appellant under Section 25 of the GW Act, 1890 seeking the following reliefs:
"a. Hon'ble Court be pleased to direct the respondent to hand over the permanent custody of minor son Himalaya to the applicant.
b. Hon'ble Court be pleased to grant such other and further reliefs as may be found just and proper Page 2 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022 C/AO/19/2021 ORDER DATED: 18/10/2021 in the facts and circumstances of the case, in favour of the petitioner and against the respondent."
3.5. A Transfer Petition came to be filed by the respondent- wife before the Hon'ble Apex Court seeking transfer of CMA No. 40 of 2017 from the District Court, Gandhinagar to the concerned Family Court at Mumbai. The said Transfer Petition was not entertained by the Hon'ble Apex Court and the same came to be dismissed. A Review petition also came to be filed filed, which also came to be rejected.
3.6. The respondent then preferred an application below Exh.29 under Order-7 Rule-11 and Section 151 of the CPC r/w. Section 9 of GW Act, 1890. The reliefs prayed for in the said application are reproduced thus:
"a) that the Hon'ble Court be pleased to reject the present petition;
b) Cost of this application;
c) For any such and other order as this Hon'ble Court may deem fit in the interest of justice."
3.7. The Court below by an order dated 03.03.2020 dismissed the application below Exh.29 on the ground that the said application was not tenable, as the said issue was already decided by the Hon'ble Apex Court and had attained finality. The said order dated 03.03.2020 passed below Exh.29 came to be challenged by the respondent before this Court by filing Civil Revision Application No. 113 of 2020, wherein, this Court after Page 3 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022 C/AO/19/2021 ORDER DATED: 18/10/2021 hearing both the parties and on broad consensus to participate in the fresh hearing of Exh.29 application, passed the following order:
"After detailed hearing made before this Court, learned Advocates appearing for the respective parties jointly submitted that they would not invite any reasoned order while keeping all the factual and legal contentions open to be agitated before the learned trial Judge while re-hearing the application made below Exhibit-29 in CMA No.40 of 2017 afresh.
In view of the above submissions made by the learned Advocates appearing for the respective parties, it is directed that the learned trial Judge shall hear and decide the application at Exhibit-29 afresh on its own merits and shall permit both the parties to raise all legal and factual contentions on its own merits and without being influenced by the impugned order, as also the order passed by this Court as well as the order passed by the Hon'ble Apex Court. Needless to say that the learned trial Judge has rejected the application Exhibit-29 mainly on the ground that the Hon'ble Apex Court has declined to transfer the case under Section 25 of the Code of Civil Procedure. It is required to be mentioned that both the provisions i.e. Section 9(3) of the Guardians and Wards Act, 1890 and Section 25 of the Code of Civil Procedure have different scope and operates on different grounds.
Since all the issues are kept open to be agitated before the learned trial Judge, this Court is not considering any other grounds including the grounds raised before the Apex Court at this stage, since this Court is directing the learned trial Judge to re-hear and decide the application at Exhibit-29 afresh on its own merits uninfluenced by the order passed by this Court, as also the order passed by the Hon'ble Apex Court. Both the parties are at liberty to raise all available factual and legal Page 4 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022 C/AO/19/2021 ORDER DATED: 18/10/2021 contentions at the time of rehearing of the application at Exhibit-29 filed in CMA No.40 of 2017. The learned trial Judge shall re-hear and decide application Exhibit-29 within two weeks from the date of receipt of the writ of this order....."
3.8. The Court below after hearing both the parties, passed the impugned order below Exh.29 dated 01.01.2021. The Court below held that since there was no dispute between the parties about the child residing at Mumbai, alongwith his mother, the application is required to be returned to the applicant for presentment before the appropriate court having the territorial jurisdiction. The operative para of the order passed by the court below dated 01.01.2021 at Exh.29 is produced thus:
"The present Civil Misc. Application No. 40 of 2017 is hereby returned under Section 9 (3) of the Guardian and Wards Act to the applicant for presentment to the appropriate Court having jurisdiction at Mumbai Court.
The applicant is hereby directed to collect the necessary file / papers within 15 days from the date of this order.
Necessary entry of return is made in the concerned register and counter signature of the applicant may be obtained while receiving the case papers.
No order as to costs."
4. The above-referred order is the subject matter of challenge by way of the present Appeal from Order under Order-43 Rule-1 of CPC.
5. The parties have pursued various proceedings under different Page 5 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022 C/AO/19/2021 ORDER DATED: 18/10/2021 laws which are narrated in the memo of appeal. The same are not required to be mentioned herein at this stage.
6. Heard Ms. Natasha Sutariya, the learned counsel appearing for the appellant-husband and Mr. Rahul Sharma, the learned counsel appearing for the respondent-wife.
7. The question as regards the maintainability of the present Appeal from Order was put to the learned counsel for the appellant. The learned counsel for the appellant has placed reliance on the provisions of Order-7 Rule-10 and Order-43 Rule-1 of CPC. The learned counsel appearing for the appellant submitted that the impugned order directs the return of the application, and hence, the powers are exercised below Order-7 Rule-10 of CPC, and therefore, the Appeal from Order would be maintainable, as provided under Order-43 Rule-1 (a) of CPC. No other and further submissions with regard to the maintainability of the present Appeal from Order is made by the learned counsel appearing for the appellant.
8. On going through the record of the Appeal from Order, the following facts are undisputed, which are stated thus:
(a). The minor son 'Himalaya' is residing with his mother at Mumbai since 31.07.2016.
(b). The order dated 18.12.2020 was passed by this Court with consensus with regard to re-hearing of the application Page 6 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022 C/AO/19/2021 ORDER DATED: 18/10/2021 below Exh.29.
(c). The proceedings being CMA No. 40 of 2017 are filed under the provisions of the GW Act, 1890 by the appellant seeking custody of the minor.
(d). The order dated 18.12.2020 passed by this Court is clear with regard to the applicability of both the provisions i.e. Section 9(3) of the GW Act, 1890 and Section 25 of the CPC, have different scope and both operates on different ground.
(e). The order dated 18.12.2020 in CRA No. 113 of 2020 is not challenged and has attained finality.
(f). The impugned order dated 01.01.2021 has been passed taking into consideration the provisions of Section 9 of the GW Act, 1890.
9. To arrive at a finding with regard to the maintainability of the present Appeal from Order, under Order-43 Rule-1 of the CPC, the following provisions are required to be taken into consideration:
(A). Section 104 of CPC reads thus:
"104. Orders from which appeal lies.--(1) An appeal shall lie from the following orders, and save as otherwise expressely provided in the body of this Code or by any law for the time being in force, from no other orders:--
4 * * * * *
Page 7 of 19
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C/AO/19/2021 ORDER DATED: 18/10/2021
5 [(ff) an order under section 35A;]
6 [(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;]
(g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules:
(2) No appeal shall lie from any order passed in appeal under this section."
(B). Order-7 Rule-10 and 11 of CPC reads thus:
"10. Return of plaint.--(1) 2 [ Subject to the provisions of rule 10A, the plaint shall] at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.
"11. Rejection of plaint.-- The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
[(e) where it is not filed in duplicate;] [(f) where the plaintiff fails to comply with the provisions of rule 9:]"
Page 8 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022C/AO/19/2021 ORDER DATED: 18/10/2021 (C) Order-43 Rule-1 of CPC, reads thus: "1. Appeals from Orders:
An appeal shall lie from the following Orders under the provisions of section 104, namely:-
(a) an Order under rule 10 of Order VII returning a plaint to be presented to the proper Court 1[except where the procedure specified in rule 10A of Order VII has been followed];
(c) an Order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an Order to set aside the dismissal of a suit;
(d) an Order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an Order to set aside a decree passed ex pane
(f) an Order under rule 21 of Order XI;
(i) an Order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;]
(j) an Order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
1[(ja) an Order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an Order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.]
(k) an Order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an Order under rule 10 of Order XXII giving or refusing to give leave;
(n) an Order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an Order to Page 9 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022 C/AO/19/2021 ORDER DATED: 18/10/2021 set aside the dismissal of a suit;
[(na) an Order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent persons:]
(p) Orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an Order under rule 2, rule 3 or rule 6 of Order XXXVIII;
(r) an Order under rule 1, rule 2 4[rule 2A], rule 4 or rule 10 of Order XXXIX;
(s) an Order under rule 1 or rule 4 of Order XL;
(t) an Order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;
(u) an Order rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;"
(D). Order 32A1 of CPC, reads thus:
order 32A- Suits relating to matters concerning the family: (1) The provision of this Order shall apply to suits or proceedings relating to matters concerning the family. (2)In particular, and without prejudice to the generality of the provisions of sub-rule (1), the provisions of this Order shall apply to the following suits or proceedings concerning the family, namely-
(a)a suit or proceeding for matrimonial relief, including a suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of any person;
(b) a suit or proceeding for a declaration as to legitimacy of any person;
(c) a suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family, under a disability;
(d) a suit or proceeding for maintenance;
(e) a suit or proceeding as to the validity or effect of an adoption;
(f) a suit or proceeding, instituted by a member of the family Page 10 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022 C/AO/19/2021 ORDER DATED: 18/10/2021 relating to wills, intestacy and succession;
(g) a suit or proceeding relating to any other matter concerning the family in respect of which the parties are subject to their personal law.
(3) So much of this Order as relates to a matter provided for by a special law in respect of any suit or proceeding shall not apply to that suit or proceeding."
(E). Section 9 of GW Act, 1890, reads thus:
"9. Court having jurisdiction to entertain application.--
(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. (2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.
(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction."
(F) Section 25 of GW Act, 1890, reads thus:
"25. Title of guardian to custody of ward.--
(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882)1.
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship."
(G) Section 47 of GW Act, 1890, reads thus:
Page 11 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022C/AO/19/2021 ORDER DATED: 18/10/2021 "47. Orders appealable.--An appeal shall lie to the High Court from an order made by a 1[***] Court,--
(a) under section 7, appointing or declaring or refusing to appoint or declare a guardian; or
(b) under section 9, sub-section (3), returning an application; or
(c) under section 25, making or refusing to make an order for the return of a ward to the custody of his guardian; or
(d) under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto; or
(e) under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section; or
(f) under section 32, defining, restricting or extending the powers of a guardian; or
(g) under section 39, removing a guardian; or
(h) under section 40, refusing to discharge a guardian; or
(i) under section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians or enforcing the order; or
(j) under section 44 or section 45, imposing a penalty."
(H). Gujarat High Court Rules: Rule-2, reads thus:
"Rule-2 Matters to be disposed of by a Single Judge- Save as otherwise expressly provided by any law in force or by these rules; a Single Judge may dispose of the following matters:
1. Civil:
.....
(3) Appeals in proceedings under the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956 .
(7) Appeals from order under Section 104 and Order XLIII, Rule 1 of the Civil Procedure Code, 1908. "
10. On conjoint reading of the above provisions of the CPC, GW Act, 1890 and the Gujarat High Court Rules, 2010, the following legal position emerges:Page 12 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022
C/AO/19/2021 ORDER DATED: 18/10/2021 A. Appeal from Order under Order-43 Rule-1 of CPC
is provided only in cases where the exercise of powers is under the provisions as mentioned in the said list. In the said list, GW Act, 1890 is not included.
B. Appeal is provided by way of Section 47 of the GW Act, 1890 would be maintainable against order returning an application as passed in the present case under Section 9(3) of the GW Act, 1890.
C. The provision of Order-43 Rule-1 does not include any other appeals as provided in any other Act except in Section 104 of CPC.
D. The GW Act, 1890 is in effect since the year 1890 and CPC is in effect since 1908.
E. The provisions of Order-32A of CPC includes the suits concerning the family issues and the same is not covered under the list as provided under Order-43 of CPC.
F. The Gujarat High Court Rules as referred above clearly draws a distinction between an Appeal from Order under Section 104 of CPC and appeals arising out the proceedings under GW Act, 1890.
G. The GW Act, 1890 is a substantive law governing the declaration as to guardianship and custody issue, whereas, Page 13 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022 C/AO/19/2021 ORDER DATED: 18/10/2021 CPC is a procedural law, and hence, when the statute itself provides for a specific remedy under the law, the statutory remedy is required to be availed and not the remedy under the procedural law.
11. The contention of the learned counsel for the appellant that the impugned order directs the return of the application, therefore, the Appeal from Order under Order-43 would be maintainable, is not well founded. The Hon'ble Apex Court in the case of BGS SGS SOMA JV v. NHPC LIMITED reported in 2020 (4) SCC 234, wherein, also the question as to maintainability of the appeal provided under the special act of arbitration against the order returning an application for setting aside the award was raised and it has been laid down by the Apex Court that the return of application is not an appealable order under the Act and so the appeal was not maintainable. Para-13 and 14 reads thus:
13. The interplay between Section 37 of the Arbitration Act, 1996 and Section 13 of the Commercial Courts Act, 2015, has been laid down in some detail in the judgment in Kandla Export Corporation (supra). The precise question that arose in Kandla Export Corporation (supra) was as to whether an appeal, which was not maintainable under Section 50 of the Arbitration Act,1996, is nonetheless maintainable under Section 13(1) of the Commercial Courts Act, 2015. In this context, after setting out various provisions of the Commercial Courts Act, 2015 and the Arbitration Act, 1996, this Court held:
"13. Section 13(1) of the Commercial Courts Act, with which we are immediately concerned in these appeals, is in two parts. The main provision is, as has been correctly submitted by Shri Giri, a provision which provides for appeals from judgments, orders and decrees of the Page 14 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022 C/AO/19/2021 ORDER DATED: 18/10/2021 Commercial Division of the High Court. To this main provision, an exception is carved out by the proviso..."
14. The proviso goes on to state that an appeal shall lie from such orders passed by the Commercial Divi- sion of the High Court that are specifically enumer- ated under Order 43 of the Code of Civil Procedure Code, 1908, and Section 37 of the Arbitration Act. It will at once be noticed that orders that are not specifi- cally enumerated under Order 43 CPC would, there- fore, not be appealable, and appeals that are men- tioned in Section 37 of the Arbitration Act alone are appeals that can be made to the Commercial Appel- late Division of a High Court.
15. Thus, an order which refers parties to arbitration under Section 8, not being appealable under Section 37(1)
(a), would not be appealable under Section 13(1) of the Commercial Courts Act. Similarly, an ap- peal rejecting a plea referred to in sub-sections (2) and (3) of Section 16 of the Arbitration Act would equally not be appealable under Section 37(2)(a) and, therefore, under Section 13(1) of the Commer- cial Courts Act.
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20. Given the judgment of this Court in Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] , which Parliament is presumed to know when it en- acted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section 50 is a provi- sion contained in a self-contained code on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in para 89 of Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] that appeals which are not men- tioned therein, are not permissible. This being the case, it is clear that Section 13(1) of the Commercial Courts Act, being a general provision vis-à-vis Page 15 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022 C/AO/19/2021 ORDER DATED: 18/10/2021 arbitra- tion relating to appeals arising out of commercial dis- putes, would obviously not apply to cases covered by Section 50 of the Arbitration Act.
21. However, the question still arises as to why Sec- tion 37 of the Arbitration Act was expressly included in the proviso to Section 13(1) of the Commercial Courts Act, which is equally a special provision of appeal contained in a self-contained code, which in any case would be outside Section 13(1) of the Commercial Courts Act. One answer is that this was done ex abundanti cautela. Another answer may be that as Section 37 itself was amended by the Arbitration Amendment Act, 2015, which came into force on the same day as the Commercial Courts Act, Parliament thought, in its wisdom, that it was necessary to em- phasise that the amended Section 37 would have precedence over the general provision contained in Section 13(1) of the Commercial Courts Act. Inciden- tally, the amendment of 2015 introduced one more category into the category of appealable orders in the Arbitration Act, namely, a category where an order is made under Section 8 refusing to refer parties to arbi- tration. Parliament may have found it necessary to emphasise the fact that an order referring parties to arbitration under Section 8 is not appealable under Section 37(1)(a) and would, therefore, not be appeal- able under Section 13(1) of the Commercial Courts Act. Whatever may be the ultimate reason for includ- ing Section 37 of the Arbitration Act in the proviso to Section 13(1), the ratio decidendi of the judgment in Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jin- dal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] would apply, and this being so, appeals filed under Section 50 of the Arbitration Act would have to follow the drill of Section 50 alone.
22. This, in fact, follows from the language of Section 50 itself. In all arbitration cases of enforcement of for- eign awards, it is Section 50 alone that provides an appeal. Having provided for an appeal, the forum of appeal is left "to the Court authorised by law to hear appeals from such orders". Section 50 properly read would, therefore, mean that if an appeal lies under the Page 16 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022 C/AO/19/2021 ORDER DATED: 18/10/2021 said provision, then alone would Section 13(1) of the Commercial Courts Act be attracted as laying down the forum which will hear and decide such an appeal.
xxx xxx xxx
27. The matter can be looked at from a slightly differ- ent angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, en- forcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison d'être for the enactment of the Commercial Courts Act is that com- mercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if we were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs 1 crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy en- forcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs 1 crore or more, if the appellants are correct, enforcement of such award would be further delayed by pro-viding an appeal under Section 13(1) of the Commer- cial Courts Act. Any such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act viz. speedy resolution of disputes of a commercial na- ture involving a sum of Rs 1 crore and over. For this reason also, we feel that Section 13(1) of the Com- mercial Courts Act must be construed in accordance with the object sought to be achieved by the Act. Any construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doc- trine of harmonious construction of both statutes, it is clear Page 17 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022 C/AO/19/2021 ORDER DATED: 18/10/2021 that they are best harmonised by giving effect to the special statute i.e. the Arbitration Act, vis-à-vis the more general statute, namely, the Commercial Courts Act, being left to operate in spheres other than arbi- tration."
14. Given the fact that there is no independent right of appeal under Section 13(1) of the Commercial Courts Act, 2015, which merely provides the forum of filing appeals, it is the parameters of Section 37 of the Arbitration Act,1996 alone which have to be looked at in order to determine whether the present appeals were maintainable. Section 37(1) makes it clear that appeals shall only lie from the orders set out in sub-clauses (a),
(b) and (c) and from no others.
The pigeonhole that the High Court in the impugned judgement has chosen to say that the appeals in the present cases were maintainable is sub-clause (c). According to the High Court, even where a Section 34 application is ordered to be returned to the appropriate Court, such order would amount to an order "refusing to set aside an arbitral award under Section 34".
"14. Interestingly, under the proviso to Section 13(1A) of the Commercial Courts Act, 2015, Order XLIII of the CPC is also mentioned. Order XLIII Rule(1)(a) reads as follows:
"1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of Section 104, namely-
(a)an order under Rule 10 of Order VII returning a plaint to be presented to the proper Court except where the procedure specified in rule 10A of Order VII has been followed;"
This provision is conspicuous by its absence in Section 37 of the Arbitration Act, 1996, which alone can be looked at for the purpose of filing appeals against orders setting aside, or refusing to set aside awards under Section 34. Also, what is missed by the impugned judgment is the words "under Section 34". Thus, the refusal to set aside an arbitral award must be under Section 34, i.e., after the grounds set out in Section 34 have been applied to the arbitral award in Page 18 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022 C/AO/19/2021 ORDER DATED: 18/10/2021 question, and after the Court has turned down such grounds. Admittedly, on the facts of these cases, there was no adjudication under Section 34 of the Arbitration Act, 1996 - all that was done was that the Special Commercial Court at Gurugram allowed an application filed under Section 151 read with Order VII Rule 10 CPC, determining that the Special Commercial Court at Gurugram had no jurisdiction to proceed further with the Section 34 application, and therefore, such application would have to be returned to the competent court situate at New Delhi."
12. On similar analogy, an appeal under the Act is provided against the order passed under Section 9(3) of the GW Act, 1890 and under Section 47 of the GW Act, 1890. So the principle of return of plaint as provided under Order-7 Rule-10 of CPC would not be applicable.
13. Once the GW Act,1890 is having the specific provision being Section 47, which provides for the list of orders which are appealable, then the appeal be filed under the GW Act, 1890. The Court below had passed the impugned order under Section 9(3) of the GW Act, 1890 and the said order is appealable under Section 47 of the GW Act, 1890.
14. Hence, for the foregoing reasons, in my view, the present Appeal from Order is not maintainable, and the same is required to be dismissed and the same is hereby dismissed with no order as to costs. Notice is discharged. It is kept open for the appellant to avail the appropriate remedy as available under the law.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 19 of 19 Downloaded on : Mon Jan 17 00:48:02 IST 2022