Calcutta High Court
Anup Kumar Biswas And Ors. vs Babul Kumar Biswas on 10 March, 2003
Equivalent citations: 2004(1)ARBLR183(CAL)
Author: D.K. Seth
Bench: Dilip Kumar Seth
JUDGMENT D.K. Seth, J.
1. In this application for interim order a preliminary objection is taken viz. ; that this application for interim order cannot be entertained unless the appeal is admitted under Order 41, Rule 11 of the Code of Civil Procedure (CPC). Admittedly, this has not been set down for hearing under Order 41, Rule 11, CPC.
2. The learned counsel for the appellants/petitioners, however, pointed out that the appeal is an appeal under Section 37(1)(a) of the Arbitration and Conciliation Act, 1996 (1996 Act). This provision confers statutory right of appeal. When the statute provides for an appeal, there is a right of appeal. Such right cannot be denied through a procedure for admission. According to him, the provision of Section 41 of the Arbitration Act, 1940 (1940 Act) which provided for application of CPC has since been repealed by implication on the incorporation of Section 19 of the 1996 Act. This provision specifically excludes application of CPC.
3. Learned counsel for the respondents had opposed the said contention and pointed out that Section 37 of the said Act itself makes the position clear. It provides for appeal against orders similar to Section 104, CPC. Until and unless the admission hearing is excluded specifically the normal procedure of the forum to which appeal is provided is to follow.
4. In reply, reference was made by the learned counsel for the appellant to the decision in the case of Superintending Engineer and Ors. v. B. Subha Reddy and Ors., , to support the contention that unless specifically provided for the procedural provisions provided in CPC cannot be attracted in Arbitral proceeding.
5. This decision, in our view, is distinguishable in the facts and circumstances of the present case. In the said decision, it was held that Section 39 of the 1940 Act providing right of appeal was silent with regard to the right to prefer a cross-objection. The specific right of appeal was conferred by the statute under Section 39 of 1940 Act, whereas Section 41 of that Act related to procedure. Therefore, the right, which was absent in Section 39 of 1940 Act, cannot be read in Section 41 of 1940 Act. Therefore, there was no right to prefer a cross-objection in respect of an appeal arising out of Arbitration proceeding under the 1940 Act. The distinction is simple. The right to prefer appeal is distinct from the procedure governing the appeal preferred. The right is confined within the right provided. The right of appeal is a substantive right. Once the appeal is filed, the substantive right is exercised. After exercise of the right there is no scope of any further right with regard to the procedure to be applied for dealing with the appeal so filed. It is an admitted principle of law that no one has a right in the procedure. Until and unless a specific provision is provided for or that a special procedure is to follow, the normal procedure of a Court or forum to which the appeal lies becomes applicable and the jurisdiction of the Court to deal with an appeal in the procedure under which it is governed cannot be excluded. Therefore, this decision does not help the appellants.
6. Section 37 provides for an appeal from an order to a Court where appeal lies from a decree of the Court passing the order. It contains different kinds of orders. One or other may be a decree. But we are now concerned with Clause (a) of Section 37(1) of the 1996 Act. Such an order can never be a decree. It has treated such orders as orders and not decrees passed by the Court. It has made two distinct situations, one with regard to orders passed by the Court and the other with regard to the orders and Awards passed by Arbitral Tribunal in Sub-section (1) and Sub-section (2) of Section 37 respectively. Section 19 excludes application of CPC to Arbitral Tribunal. But it is silent with regard to the application or exclusion of CPC to Courts. When application is excluded, for one category, omitting to mention the other category, the exclusion for one cannot be imported to the other. Therefore, by implication the application of CPC to Courts cannot be excluded when no special provision is laid down either in the Act or in the Rules for dealing with such appeals. When a forum is selected, unless special procedure is provided for, the forum is free to proceed on the basis of normal procedure it follows for the purpose of dealing with such appeals.
7. Every appeal is required to be set down for hearing under Order 41, Rule 11, CPC whether it is an appeal from decree or from appellate decree or from an order by reason of Order 41, Rule 11, CPC read with Order 42, Rule 1 and Order 43, Rule 2, CPC respectively. But for Rule 17, Chapter V, Clause (a) of the Appellate Side Rules, particular categories of appeal, namely, appeals from original decree or from an order under Article 226 of the Constitution, appeals under Workmens' Compensation Act, Indian Railways Act and Motor Vehicles Act are exempted from being set down for hearing under Order 41, Rule 11, CPC, while providing for setting down of appeals other than those specifically provided for in Clause (a) thereof, for hearing under Order 41, Rule 11, CPC in Clause (b), Rule 17, Chapter V itself.
8. Thus, unless specifically excluded the application of Order 41, Rule 11, CPC cannot be excluded in respect of an appeal preferred under Section 37(1)(a) of the 1996 Act.
9. We had occasion to deal with similar question arising out of an appeal under Section 28(2) of the Hindu Marriage Act which is also not exempted under Chapter V, Rule 17 of the Appellate Side Rules relying on the decisions in Lalit Chandra Dhar v. Abdul Robe, in Nilmoni Mazumdar v. Sanghamitra Mazumdar, 2002(3) CHN 638. Our view gets further support from the decision in Surajmal Jain v. Prabir Kumar Sett, 1980(2) CLJ 161, by a Division Bench of this Court. While dealing with the proposition of the same nature, the Hon'ble Mr. Justice Chittatosh Mookerjee (as His Lordship then was) delivering the judgment, was pleased to hold that an appeal from an order passed under Order 21, Rules 98, 100 and 101 though, by virtue of Rule 103, CPC is appealable as if it were a decree, yet it is not an appeal from original decree specifically exempted under Rule 17, Chapter V of the Appellate Side Rules and as such is required to be placed for hearing under Order 41, Rule 11, CPC. The said case, was little stronger than that with which we are dealing with now viz : it was deemed decree which is not a case here. We find further support from the decision of I.T.I. Ltd. v. Siemens Public Communications Network Ltd., . In this case the Apex Court was dealing with Section 33 and Section 9 of the 1996 Act respectively. There an application under Section 115 of the CPC was filed against an order passed in a proceeding under Section 9 of the 1996 Act. Dealing with the question of maintainability of the revisional application, the Apex Court had held that though the procedure of CPC was not specifically made applicable by virtue of any provisions contained in the 1996 Act, but by implication the application of CPC cannot be excluded unless specifically provided for.
10. For all these reasons, in our view, an appeal from an order under Section 37(1)(a) of the 1996 Act cannot be exempted from hearing under Order 41, Rule 11, CPC until it comes within the scope and ambit of Chapter V, Rule 17 of the Appellate Side Rules.
11. In that view of the matter, this appeal is required to be set down for hearing under Order 41, Rule 11, CPC. Let this matter be placed before the appropriate Court for hearing under Order 41, Rule 11, CPC.
12. Learned counsel for the respondent prayed for vacating the interim order granted in this case. But the interim order already stands expired.
13. Before parting with the matter, we must record our appreciation for the assistance rendered by Mr. Harish Tandon and Mr. Mainak Bose.
R.N. Sinha, J.
14. I agree.