Delhi High Court
M/S. Vidyawati Construction Company vs M/S. Rail India Technical & Economic ... on 30 March, 2001
Equivalent citations: 2001IVAD(DELHI)846, 91(2001)DLT538, 2001(59)DRJ126, 2001(2)RAJ334
Author: Mukul Mudgal
Bench: Mukul Mudgal
ORDER Devender Gupta, J.
1. The order passed on 11.2.1999 by learned Single Judge dismissing the application of appellant filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) is under challenge in this appeal.
2. A preliminary objection has been raised to the maintainability of the appeal on behalf of the respondent. It has been urged that under Section 37 of the Acct legislature has restricted the right of appeal. Appeal is maintainable only against the orders as are specified in the said provision making it clear that appeal shall not lie from any other order. Order being one passed on an application moved under Section 11(6) of the Act appeal is not maintainable.
3. The facts in brief are that work of construction of Government Girls Polytechnic Hostel at Allahabad was awarded by respondent to the appellant on 6.3.1999. Stipulated date of completion was 5.3.1993. Disputes are stated to have arisen between the parties in respect of payment of final bill, security deposit and wrongful deduction etc. for which arbitration clause 47 was invoked by the appellant through letter dated 6.2.1997 with a request to the competent authority to appoint arbitrator and refer the disputes to arbitration. Despite receipt of the notice competent authority failed to appoint the arbitrator and to refer the claims of the appellant for arbitration. In these circumstances, the appellant on 8.8.1997 filed a petition (AA 203/97) in this Court under Section 11(6) of the Act praying for reference of the claims to arbitrator to be appointed by the Court. Respondent was served for 8.9.97. Reply was filed by the respondent opposing the appellant's petition on the ground that the respondent had already appointed an arbitrator through letter dated 15.10.1997 for adjudication of the claims of the appellant. Learned single Judge by the impugned order proceeded to dismiss the appellant's petition holding that in view of the appointment of arbitrator by the competent authority on 15.9.1997 the petition had been rendered infructuous.
4. The above order is under challenge on the ground that when the appointing authority had neglected to appoint the arbitrator within the notice period mentioned in the notice the competent authority had abdicated its authority to appoint the arbitrator and no power is vested thereafter in the competent authority to appoint an arbitrator. It is urged that since prayer in the High Court to appoint an arbitrator and as the arbitrator has not been appointed by the High Court, the impugned order is liable to be set aside. On the question of maintainability of the appeal learned counsel for the appellant urged that the learned Single Judge had not disposed of the petition filed under Section 11(6) of the Act on merits as such no order can be said to have been passed under the Act. It was an order passed by the Court of ordinary Civil Jurisdiction and any order passed by a Single Judge of this Court is appealable to a Division Bench under Section 10 of Delhi High Court Act, 1966. Learned counsel for the appellant referred to the definition of the Court as defined in Clause (e) of Sub-section (2) of Section 1 of the Act and to Section 10 of Delhi High Court Act urging that the impugned order was passed by learned Single Judge of this Court in exercise of ordinary Civil Jurisdiction,therefore, the appeal was maintainable before the Division Bench.
5. Learned counsel for the respondent refuting the submission made on behalf of the learned counsel for the appellant on merits as well as on the question of maintainability of the appeal made reference to Sub-section (2) of Section 5 of Delhi High Court Act and urged that the Ordinary Original Civil Jurisdiction vested in this Court is with respect to suits. A petition filed under the Arbitration Act is not a suit, therefore, there was no question of applicability of Section 10 of Delhi High Court Act. Reliance was placed on a few decisions under the Arbitration Act, 1940 that petitions filed under the said enactment are not a plaint. The decisions relied upon are Union of India Vs. Gorakh Mohan Das and another , Nawab Usmanali Khan Vs Sagar Mal AIR 65 SC 1799, P.A. Ahammed Ibrahim Vs. The Food Corporation of India and M/s Lloyed Insulations (India) Ltd. Vs. Cement Corporation of India Ltd. .
6. We have given our due consideration to the submissions made at the bar. Sub-section (1) of Section 37 of the Act enumerates appealable orders and says:-
"An appeal shall lie from the following orders (and from no others) to the court authorised by law 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.
7. Admittedly the impugned order disposing of the petition filed under Section 11(6) of the Act is not an order against which an appeal would be maintainable under Section 37 of the Act. As noticed above learned counsel for the appellant contended that the order has been passed by learned Single Judge of this Court in exercise of Ordinary Civil Jurisdiction. Therefore, the appeal is maintainable under Section 10 of Delhi High Court. This submission has no force and deserves rejection. Section 10 of Delhi High Court Act does not confer any right of appeal. It provides only a forum of appeal. Appeal is a creature of statute and there is no inherent right of appeal. Reference, if any, in this regard be made to the decision of this Court in The East India Hotels Ltd. Vs. Jyoti Pvt. Ltd. 1996 III A.D. (DELHI) 242.
8. On the face of it the impugned order has been passed on the appellant's petition seeking appointment of an arbitrator. The petition was dismissed as infructuous after the court noticed the reply submitted as infructuous after the court noticed the reply submitted by the respondent which had stated that an arbitrator had since beeb appointed. Accordingly learned single Judge proceeded to dismissed the application. The said order as such is an order passed dismissing a petition under Section 11(6) of the Act which order admittedly is not appealable under Section 37 of the Act. Since the statute does not confer any right of appeal is maintainable.
9. Consequently the appeal is dismissed as not maintainable.