TaxTMI 
TaxTMI 
2012 (11) TMI 607
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....Krishna B. Moorthy, Ms.Helina Desai, Mr. Gautam Sahni, i/b. Wadia Ghandy & Co. for Respondent No.4. Mr. Ravi Kadam, Senior Advocate, Mr.Shyam Mehta, Senior Advocate, Mrs.Tanmayi Rajadhyaksha, Mr. Suraj Iyer, i/b. Ganesh & CO. for Respondent Nos. 5, 6 and 13. Mr. Simil Purohit, i/b. Mr.Kalpesh Joshi for Respondent Nos. 7, 8, 9, 10, 14, 15, 16 and 17. Ms. Ankita Singhania, Mr. Ashok Purohit, i/b. Ashok Purohit & Co. for Respondent No.18. Mr. J.J.Bhatt, Senior Advocate, a/w. Mr. Gaurav Joshi, Mr. N.V. Vimadalal, Mr. Manish Doshi, i/b. Vimadalal & Co. for Evershine Developers, third party. Appearance in Company Appeal (L) No. 25 of 2012 and Company Appeal (L) No. 4 of 2011 with Company Application (L) No. 322 of 2012: Mr. Gaurav Joshi, a/w. Mr.Chirag Mody, Ms.Anushka Sarda, i/b. DSL Legal for Applicant in Company Application (L) No. 322 of 2012 and Appellant in Company Appeal (L) No. 25 of 2012. Mr. Ankit Lohia, a/w. Ms. Nayna Rane, i/b. D.H.Law for Appellant in Company Mr. Rahul Chitnis, Counsel a/w. Mr. Chakrapani Misra, Mr. Devesh Juvekar, Mr.R. Arunadhri Iyer, Ms. Meghna Rajadhyaksha, i/b. Khaitan & Co. Advocates for Respondent No.1 in Company Application (L....
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....n made by the first respondent. On 12th March, 2009, the appellant, respondent no. 18 and respondent no. 1, respondent nos. 2 to 4 (Promoters) executed Securities, Subscription and shareholders agreement. (b) The appellant company filed company Petition (57 of 2012) before the CLB, Western Region Bench under section 397 and 398 read with section 402 of the companies Act, 1956 alleging certain acts of oppression and mismanagement in the affairs of respondent no1 and respondent nos. 5 to 7 by the respondents and sought various reliefs. (c) In the month of August, 2012, respondent no.2 filed an application under section 8 of the Arbitration Act, 1996 (Company Application No. 116 and 120 of 2012) before the CLB relying upon clause 20.4 of the agreement, Article 58 of the Articles of Association and section 8 of the Arbitration Act, 1996. By an order dated 12th Application No. 116 and 120 of 2012 and referred the parties to arbitration as contemplated under Article 58 of the Articles of Association and clause 20.4 contained in agreement and as per provisions of the Arbitration Act, 1996. (d) During the pendency of the said application, CLB granted certain ad interim reliefs on ....
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....ncipal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject- matter of a suit, but does not include any civil Court of a grade inferior to such principal civil Court, or any Court of Small Causes; Section 8 8. Power to refer parties to arbitration where there is an arbitration agreement. (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in subsection (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub- section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. Section 9 9. Interim measures etc....
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....seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is mill and void, inoperative or incapable of bring performed. Section 50 50. Appealable orders. (1) An appeal shall lie from the order refusing to- (a) refer the parties to arbitration under section 45; (b) enforce a foreign award under section 48, to the court authorised by law to hear appeals from such order. (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 10F of The Companies Act, 1956 [10F. Appeals against the order of the Company Law Board.- Any person aggrieved by any decision or order of the Company Law Board [made before the commencement of the Companies (Second Amendment) Act, 2002] may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Company Law Board to him on any question of....
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....the Arbitration Act which takes away the remedy of a party to file appeal under Section 10F. (f) There is no provision in the Arbitration Act which takes away power of this court to exercise its power to hear the appeal filed under Section 10F arising out of order passed under Section 8 of the Arbitration Act, 1996. (g) The CLB while deciding the application under Section 8 filed by the 1st respondent was exercising the power under Sections 397, 398 read with Section 402 of the Companies Act, 1956. The proceedings thus filed by the appellant under Sections 397, 398 read with Section 402 were put to an end by passing an order under Section 8 of the Arbitration Act, 1996. If the CLB would have refused to refer the matter to arbitration on the application of the 1st respondent filed under section 8 of the act, the situation would have been different. 8. In the alternate to the aforesaid submissions, Mr.Dwarkadas, the Learned Senior Counsel made the following submissions :- (a) The judicial authority which exercises powers under section 8 of the said Act is not exercising powers under the said Act, but under the relevant statute, which governs the jurisdiction of the rel....
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....ay Kumar Chopra and Ors. 2003 Company Cases Vol.117 660, the judgment of the Division Bench of this court in International Thermal Technology Kircher Italia, Branch, S.P.A. Vs. Esteem Projects Pvt. Ltd. Appeal No. 485 of 2005, the judgment in the case of Rites Ltd. Vs. JMC Projects (India) Ltd. Appeal No. 345 of 2011, Jet Airways (India) Ltd. Vs. Sahara Airlines Ltd. It is submitted that after considering all these judgments, the Division Bench of this court has held as under : "5. The question to be considered is "whether against an order passed by the learned Single Judge of this Court in a civil suit terminating that civil suit or refusing to terminate the civil suit because of the provisions of Section 8 of the Arbitration and Conciliation Act, an appeal under Clause 15 of the Letters Patent would lie or it can be said that such an appeal is barred by the provisions of Section 37 of the Arbitration and Conciliation Act. Perusal of Section 37 which we have quoted above shows that that provision provides for an appeal against final order passed in the proceedings instituted under Sections 9 and 34 of the Arbitration and Conciliation Act. Subsection 3 of Section 37 lays down....
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....ection 9 confers power to make interim orders only on Court. Section 34 confers power, to entertain an application against an award, only on a Court. Therefore, at least a general statement cannot be made that because of Section 37, appeal against all orders passed under section 8 is barred. Minimum that can be said is that where an order under section 8 is not made by the Court, section 37 will not be attracted. For example, if in a suit in the Court of Civil Judge, Junior Division an order terminating that suit is passed because of section 8 by the Civil Judge, Jr. Division, that order would be appealable before the District Judge and the appeal would not be barred by Section 37 because the Court of Civil Judge, Jr. Division is not "Court" within the meaning of section 2(e). Thus, appeal against order passed because of the provisions of Section in some civil suits by some civil Courts which are not "Court" within the meaning of section 2(e) would be maintainable while appeals against the orders passed by those Courts which are "Court" within the meaning of Section 2(e) because of the provisions of Section 8 in the civil suit would not be maintainable. It appears from section 37 t....
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....e emphasis was placed by the learned Counsel appearing for respondents on the judgment of the Division Bench in the case of "Jet Airways (India) Ltd." referred to above. In that judgment, the Divisions Bench was considering the question of maintainability of an appeal against an order passed by a Single Judge in the proceedings instituted for execution of an Award passed under the Arbitration Act which has become final. The Division Bench has concluded that any order passed in the proceedings filed for execution of an Award made under the Arbitration Act are to be treated as orders passed under Section 36 of the Arbitration Act and in view of the provisions of Section 37 no appeal lies against any order passed under Section 36. For recording this conclusion, the Division Bench has entirely relied on the judgment of the Supreme Court in the case "Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd." referred to above. We find from the judgment of the Division Bench in the case "Jet Airways (India) Ltd." that the Division Bench has also not taken into consideration the possibility of the execution proceedings being filed before the judicial authority which is not a court within the meaning....
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....on 37 will not be attracted. The learned senior counsel invited my attention to the observations made by the Division Bench that it cannot be the intension of the legislature to bar appeals against the orders passed in the proceedings which are not instituted under the Arbitration Act, 1996. The Division Bench has observed that the result of the order passed under section 8 may be to terminate the civil suit. It is submitted that the judgment of the Division Bench of this court is thus binding on the Single Judge of this court while hearing the present appeal under section 10F of the Companies Act, 1956. 11. It is submitted by Mr. Dwarkadas, the learned senior counsel that the reliance placed by the respondents on the judgment of the Supreme Court in the case of Sumitomo Corporation Vs. CDC Financial Services (Mauritius) Ltd. and others (2008) 4 Supreme Court Cases 91, is misplaced. It is submitted that there was no issue before the Supreme Court in the said matter regarding maintainability of appeal under section 10F of the companies Act, 1956. According to learned senior counsel the issue was only in respect of the forum which could hear appeal from orders of CLB. It is sub....
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....that the subject matter of action before it, is subject matter of arbitration agreement and that would mean that such application was not an application as contemplated under section 42 of the said Act. 16. Mr. Dwarkadas, learned senior counsel appearing for the appellant placed reliance on the judgment of the Supreme Court in the case of ITI Ltd. Vs. Siemens Public Communications Network Ltd (2002) 5 Supreme Court Cases 510 and more particularly para 19 in support of his plea that the Supreme Court had considered the effect of section 5 of the Arbitration Act, 1996 and had held that the right of second appeal to the High Court had been expressly taken away by sub section 3 of section 37 of the Arbitration Act, 1996, however, for that reasons it cannot be held that the right of revision has also been taken away. Para 19 of the judgment in the case of ITI Ltd. (supra) reads thus: "19. Revisional jurisdiction of superior court cannot be taken as excluded simply because subordinate courts exercise a special jurisdiction under a special act. The reason is that when a special Act on matters governed by that Act confers a jurisdiction on an established court, as distinguished from ....
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....tion 37, it is clear that no appeal lies against the order passed by the Judicial Authority under section 8 referring parties to arbitration or refusing to refer the parties to arbitration. It is submitted that only such orders which are specifically provided under section 37(1)(a) or (1) (b) or under section 37(2)(a) or (b) are appealable and no other orders. It is submitted that the order passed under section 8 by the Judicial Authority is thus not appealable. It is submitted that under section 37 read with section 5 of the Act, the court had no power to intervene in any of the proceedings except so provided in Part I of the Act. It is submitted that in view of the bar under section 37 from entertaining appeal from any other order no provided therein, the appeal filed under section 10F of the Companies Act, 1956 by the appellant is not maintainable. 20. Mr. Kamdar and Mr. Chinoy, the learned senior counsel strongly placed reliance upon the judgment of the Supreme Court in the case of Sumitomo Corporation (supra) and more particularly on para 13, 14, 24 to 29, 32 and 34 which reads as under : "13. We have carefully perused all the relevant materials, Annexures and considered....
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....s against the order of the Company Law Board.- Any person aggrieved by any decision or order of the Company Law Board made before the commencement of the Companies (Second Amendment) Act, 2002 may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Company Law Board to him on any question of law arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days." The above provisions make it clear that the forum shall be court authorized by law to hear the appeals from such order. In this regard, it is useful to reproduce the Explanation to Section 47 of the Arbitration Act which reads thus: "47. Evidence.- xxx xxxx Explanation.- In this section and all the following sections of this Chapter, "Court" means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction over the subject-matter of the award if the same had been t....
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.... sections of the Arbitration Act should be by the court within the jurisdiction of which the suit would have been filed, the appeal shall always be to the appellate forum which hears appeals from the order of the forum which passes the order. It is also clear from Section 37 of the Act dealing with appeals. Here also the appeal is to the court which hears the appeal and not the court which exercises original jurisdiction if the subject-matter had been a suit as provided in the explanation to Section 47 or Section 2(c) of the Arbitration Act. 28.To our mind, the reading of Section 50 clearly suggests that an appeal shall lie from the order of the CLB to the court authorized by law to hear the appeals from such order of the CLB. To make it clear that in the event the order under Section 45 is passed by the CLB, the forum which is provided under law for hearing the appeal from the order of the CLB, will be the Appellate Forum. In other words, while Section 50 of the Arbitration Act provides for the orders which can be made the subject-matter of the appeal, the forum to hear the appeal is to be tested with reference to the appropriate law governing the authority or forum which passe....
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....e any application to appellate jurisdiction as the one provided in Section 50 of the Arbitration Act. The appeal is a statutory remedy and it can lie only to the specified forum. The appellate forum cannot be decided on the basis of cause of action as applicable to original proceedings such as suit which could be filed in any court where part of cause of action arises. In such circumstances, we are unable to accept the lengthy arguments advanced on the above-mentioned subject by learned senior counsel for the appellant. Likewise, the submission of the appellant, namely, the Arbitration Act being a special and subsequent statute has no relevance to the present case." 21. Both the learned senior counsel submits that section 10F read with section 10(1)(a) of the Companies Act provided for forum to appeal from orders of CLB. It is submitted that appeal under section 10F is not maintainable. It is submitted that the appellant could have chosen forum for filing appeal before the forum provided under section 10F provided such appeal was maintainable under section 37 of the Arbitration Act, 1996. It is submitted that the Division Bench Judgment relied upon by the petitioner in the case ....
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....e further said: If then, as I have held, the Act is intended to be exhaustive, and contains no provisions for the enforcement of an award based upon an oral submission, the only possible conclusion is that the Legislature intended that such an award should not be enforceable at all, and that no such suit should lie. 85. We have so far seen the decisions of the High Court's holding that a suit for enforcement of an arbitration award made on an oral reference was not maintainable, an arbitral award could only be enforced in terms Section 17 of the Arbitration Act and a suit for the enforcement of an arbitral award was not maintainable, and third, that no interest could be awarded on the amount adjudged in the award beyond the provisions of Section 29 of the Arbitration Act. 86. It is seen above that, in Mohindra Supply Co. the court held that a letters patent appeal was not maintainable in view of section (2) of Section 39 of the 1940 Act. To that extent, the decision may not have any bearing on the present controversy. But, in that decision observations of great significance were made in regard to the nature of the 1940 Act. 91. In light of the discussions made above,....
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....cepted, an appeal from an order under section 39(1) by an Assistant Judge will not lie at all. There are similar provisions in the Civil Courts Acts in the other States as well. The qualifying expression "to the court authorised by law to hear appeals from original decrees of the Court passing the order" in section 39(1) does not import the concept that the appellate court must be distinct and separate from the court passing the order or the decree. The legislature has not so enacted and the context does not warrant such an interpretation. The clause merely indicates the forum of appeal. If from the decision of a court hearing a suit or proceeding an appeal will lie to a Judge or more Judges of the same court, by virtue of section 39(1) the appeal will lie from the order passed under the Arbitration Act, if the order is appealable, to such Judge or Judges of that court. The argument that the right to file an appeal to the Supreme Court from orders in arbitration proceedings would be seriously restricted has in our view no substance. If an order passed in a proceeding on the original side of the High Court is appealable under section 39(1), an appeal will lie to a Division Ben....
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....n was expressly preserved.] 18. There is in the Arbitration Act no provision similar to section 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 section 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 section 39(1) and (2) of the Arbitration Act." 25. Relying upon this judgment of the Supreme Court in the case of Union of India Vs. Mohindra (supra), it is submitted that section 10F thus merely indicates forum of appeal and does not right of appeal against the order of CLB passed under section 8 of the Arbitration Act, 1996. 26. The learned senior counsel for the respondents also placed reliance on the judgment of Punjab & Haryana High Court in the case of Smt. Sudarshan Chopra (supra) and more particularly pages 684, ....
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....Ltd. v. Appcon Consultants (P) Ltd. , a Division Bench of the Calcutta High Court has also in paragraph 28 opined that the term 'judicial authority' expressed in Section 5 of the Arbitration Act, 1996, refers to a court. "26. There can be no room for any doubt specially in view of the judgments referred to above, that 'judicial authority' is an authority . . . exercising judicial power of the State . . / and'... discharging judicial functions ....'. In the aforesaid view of the matter, it is evident that the term 'judicial authority' will necessarily include 'court' as defined in Section 2(e) of the Arbitration Act, 1996, as well as an appellate court. In such a situation, while interpreting Section 5 of the Arbitration Act, 1996, it is evident that the remedy of appeal to an appellate court would be permissible only if so expressed, specifically or by necessary implication, in Part I of the Arbitration Act, 1996, and not otherwise. 27. Having arrived at the conclusion that the Arbitration Act, 1996, is an exclusive, exhaustive and comprehensive code and further that the mandate of Section 5 of the Arbitration Act, 1996, does no permit any judicial authority which as noticed ....
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....ection 37 of the Arbitration Act, 1996, reveals that appealable orders referred to in Section 37(1) can only be such orders which have been passed by a court; and cannot be an order passed by a 'judicial authority'. In order to arrive at the aforesaid conclusion, reliance has been placed by learned counsel for the appellants on the following words used in Section 37(1) of the Arbitration Act, 1996 : '. . . from decrees of the court passing the order...'. Inviting the attention of the court to Section 2(e) of the Arbitration Act, 1956, wherein the word 'court' has been defined, learned counsel for the appellants vehemently argued that the term 'court/ used in Section 37(1) would include a civil court of original jurisdiction in a district, and the High Court in exercise of its original civil jurisdiction, and no other 'court'. It is submitted that the orders passed by a 'judicial authority' are clearly not within the ambit of Section 37(1) of the Arbitration Act, 1996. It is, therefore, suggested that the expression 'orders' used in Section 37(1) will not include an order passed under Section 8 of the Arbitration Act, 1996, because an order passed under Section 8 is not passed by a ....
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....n 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 be inevitable to conclude that the remedy of appeal thereform is expressly excluded. 27. The learned senior counsel placed reliance upon the judgment of the Delhi High Court in Vijay Sekhri and anr. Vs. Tinna Oils & Chemicals & Ors (2010) 174 DLT 462. Delhi High Court has after considering the judgment of the Punjab & Haryana High Court in the case of Sudarshan Chopra, Sumitomo Corporation, Kinetic Engg. Ltd. Union of India Vs. Mohindra Supply Co. and held thus: "6. It is admitted case of the parties that the appellants herein had filed two petitions under Sections 397-398 of the Companies Act alleging oppression and mismanagement before the CLB in the affairs of M/s Tinna Agro Industries Limited and Tinna Oil and Chemicals Limited. During the pendency of the said petitions, applications under Sections 8 and 45 of the Arbitration Act were filed and by the impugned orders dated 20th July, 2010 passed by the CLB, the applications have b....
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....mine the legislative provision under which the impugned order dated 08.12.2000 has been passed. If in the aforesaid determination, this Court arrives at the conclusion that the order was passed by the Company Law Board in exercise of its jurisdiction to settle a dispute flowing out of the provisions of the Companies Act, 1956, then and only then, the instant plea advanced on behalf of the appellants would merit acceptance. In such an eventuality, it would have to be concluded that the search for the appellate forum would have to be restricted to the Companies Act, 1956. However, if this Court arrives at the conclusion that the impugned order dated 08.12.2000 had been passed by the Company Law Board in its capacity of 'judicial authority' in exercise of obligations flowing out of the Arbitration Act, 1996, in furtherance of the provisions of the Arbitration Act, 1996, then certainly, the remedy must be searched for, from within the provisions of the Arbitration Act, 1996. In such an eventuality, the contention advanced on behalf of the appellants would not merit acceptance. 9. Undoubtedly, when the petition was filed by the respondents (herein) before the Company Law Board, the C....
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....aforesaid conclusion, it must not be assumed that we have accepted the submission that the Arbitration Act, 1996, is merely an adjective, incidental, supplemental and procedural legislation, when compared with the Companies Act, 1956. The instant question simply does not arise and, therefore, need not be gone into. 9. The Punjab and Haryana High Court also rejected the contention that the ordinary incident of procedure of the Court, including right to appeal, where proceedings were/are pending would automatically get attached with the decision. The Punjab and Haryana High Court has held that the rule of attachment is not applicable in view of the express provisions and the bar under Section 37 of the Arbitration Act. It was observed: 15.2 In fact, even the judgment in Vanita M. Khanolkar's case, supra, which, according to the counsel for the appellants, completely covers the controversy in the present case, it is apparent from the extract already reproduced above that the procedure including the fight of appeal would not get attached'.. unless the statutory enactment concerned expressly excludes appeals. '. Additionally, in Vanita M. Khanolkar's case AIR 1998 SC 424, supra....
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....to the appeal ability of an order passed by the High Court in an appeal from the order of the subordinate court and not from the order passed by a learned Single Judge sitting on the original side of the High Court. There is also another decision of a two-Judge Bench of this Court in Vanita M. Khanolkar v. Pragna M. Pai MANU/SC/0867/1998 : (1998)1 SCC 500 which appears to have taken a contrary view relying upon Clause 15 of the Letter Patent applicable to the High Court of Bombay. Thus, there appears to be conflict of decisions on this question. 10. The Punjab and Haryana High Court has further held that the Arbitration Act is an exclusive, exhaustive and comprehensive code as the said Act is a consolidating and an amending Act relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards and for matters connected with or incidental thereto. The High Court relied upon observations of the Supreme Court in Union of India v. Mohindra Supply Co. MANU/SC/0004/1961 : AIR 1962 SC 256 with reference to enactment of Arbitration Act, 1940, which was again a consolidating and an amending statute. It was accordingly held that the remedy by....
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....orders mentioned in Section 50 of the Arbitration Act. In other words, in respect of international awards/arbitrations covered by New York Convention, an appeal can be filed against the orders passed by the Trial Court/first forum only against an order refusing to refer the parties to arbitration or an order refusing to enforce an award under Section 48 of the Arbitration Act and not against other orders. Section 50 of the Arbitration Act creates the said bar. Similar view has been taken in Shivnath Rai Harnarain India Co. V. G.G. Rotterdam MANU/DE/2802/2009 : 164 (2009) DLT 197 and in Usha Drager Pvt. Ltd. v. Dragerwerk AG, MANU/DE/2572/2009 : 2010 (170) DLT 628. 12. In Sumitomo Corporation v. CDC Financial Services (Mauritius) Limited and Ors. MANU/SC/1101/2008: (2008) 4 SCC 91, the CLB had refused to refer the parties to arbitration under Section 45 of the Arbitration Act. An appeal was filed before the Delhi High Court under Section 50 of the Arbitration Act and was registered as FAO. This FAO was dismissed by the Delhi High Court for lack of territorial jurisdiction holding that Section 10(1)(a) of the Companies Act will take precedence over Section 50 of the Arbitration....
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...., overriding effect of special statute over general statute, overriding effect of subsequent statute, etc. Since they have no application whatsoever to the matter in issue, there is no need to refer various decisions in those aspects. Ouster of jurisdiction arises only in regard to original jurisdiction and it cannot have any application to appellate jurisdiction as the one provided in Section 50 of the Arbitration Act. The appeal is a statutory remedy and it can lie only to the specified forum. The appellate forum cannot be decided on the basis of cause of action as applicable to original proceedings such as suit which could be filed in any court where part of cause of action arises. In such circumstances, we are unable to accept the lengthy arguments advanced on the abovementioned subject by learned Senior Counsel for the appellant. Likewise, the submission of the appellant, namely, the Arbitration Act being a special and subsequent statute has no relevance to the present case. 14. Thus, the Supreme Court has held that Section 50 of the Arbitration Act stipulates the orders that can be made subject matter of appeal but does not prescribe or fix the forum which will hear the ap....
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....d Act did not bar or prohibit any appeal. Accordingly, it was observed that the appeal would lie under Section 10F of the Act as there was no express or implied bar under the Securities Contract (Regulation) Act, 1956. Thus it appears that the Bombay High Court, had accepted that the doctrine of attachment was applicable. 17. In view of the aforesaid discussion, the present applications are allowed and it is held that the appeals under Section 10F of the Companies Act are not maintainable against the impugned orders allowing applications under Section 45 of the Arbitration Act. 18. It is clarified that this Court has not expressed any opinion on the merits of the impugned orders dated 20th July, 2010 allowing the applications and referring the matter to International Arbitration as this Court has no jurisdiction to entertain the present appeals under Section 10F of the Companies Act. It is clarified that this Court has not expressed any opinion whether the appellants have remedy to challenge the said orders by way of writ petitions or in some other appropriate proceedings. This question has not been raised and argued before me." 28. The learned senior counsel for the respo....
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....ation Act, 1996. It is 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 by 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 ....
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....rder passed under section 8 of the Act is binding on this court. It is submitted that by the said judgment, the law is laid down after interpreting section 37 and 8 of the Act that no appeal is provided under section 37 against the order under section 8 of the Act whether referring the parties to arbitration or refusing to refer the parties to arbitration. 30. The learned senior counsel also placed reliance upon the judgment of this court delivered by the division Bench of this Court on 8th August, 2011 in the case of Jet Airways and another Vs. Subrato Roy in Appeal No. 345 of 2011. This court after considering the judgment of the Supreme Court in Fuerst Day Lawson Limited (supra) has held that LPA is not maintainable. Para 21, 22 30 to 34 of the said judgment reads thus: "21. In Sharda Devi, the Court pointed out that in South Asia Industries, the Court had examined Sections 39 and 43 of the Delhi Rent Control Act and held that a combined reading of the two sections showed that an order passed by the High Court in an appeal under Section 39 was to be final. It was held that the provision of finality was intended to exclude any further appeal. This decision was, thus, bas....
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....oth these decisions and declared that Resham Singh Pyara Singh and New Kenilworth Hotel (P) Ltd. laid down wrong law. It further pointed out that even after the aforementioned two decisions this Court had continued to hold that a Letters Patent Appeal is not affected by the bar of Section 104(2) Code of Code of Civil Procedure. In this connection, it referred to Vinita M. Khanolkar (supra), under Section 6 of the Specific Relief Act, Chandra Kanta Sinha v. Oriental Insurance Co. Ltd. and Ors. MANU/SC/0339/2001: (2001) 6 SCC 158, under Section 140 of the Motor Vehicles Act, 1988, Sharda Devi (supra), under Section 54 of the Land Acquisition Act and Subal Paul (supra), under Section 299 of the Indian Succession Act, 1925 and came to the conclusion that the consensus of judicial opinion has been that Section 104(1) Code of Code of Civil Procedure expressly saves the letters patent appeal and the bar under Section 104(2) Code of Code of Civil Procedure does not apply to letters patent appeals. In paragraph 22 of the judgment, the Court observed as follows: 22. ...The view has been that a letters patent appeal cannot be ousted by implication but the right of an appeal under the Lette....
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....tion 45 read with section 50 makes it clear that it was intended by the Legislature that if application under section 45 is made before the Judicial Authority which is seized of the action in the matter in respect of which parties have made agreement referred to in section 44, at the request of one of the parties to refer the parties to arbitration is rejected by the Judicial Authority, such order is specifically appealable under section 50(1)(a) of the Act. It is submitted that there is no such provision made by the legislature under section 37(1) or (2) in respect of the order passed by the Judicial Authority under section 8 of the Arbitration and Conciliation Act, 1996. The learned counsel submits that the legislative intent of the Parliament is absolutely clear that no remedy of appeal is provided under section 37 against the order passed by the Judicial Authority under section 8 of the Act. It is submitted that the remedy of appeal is provided by the statute and since no such appeal is provided against the order passed by the Judicial Authority under section 8, appeal filed by the appellant under section 10F is not maintainable. The learned senior counsel submits that there is....
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....of the Act. Since there is no appeal provided under section 37, the appellant could not have recourse to section 10F which is only for the purpose of finding forum provided right of appeal is provided under section 37 of the Act. 34. The learned senior counsel submits that the language of section 37(1) is very clear that the only orders passed by the court under section 9 or section 34, appeal is maintainable before the court and thus does not include any order passed by the Judicial Authority. It is submitted that from the perusal of section 37(2) it is clear that appeal lies to court against the order passed by the arbitral tribunal under section 16(2) or (3) and against the interim measures passed under section 17 which also does not include any order passed by the judicial authority. It is submitted that the legislative intent is very clear that with a view to minimise judicial intervention of the court, court's intervention is minimal. The learned senior counsel has adopted the other submissions made by Mr. Kamdar and Mr. Chinoy. It is submitted that the Judgment of this court in Jet Airways and in the case of International Thermal is still in force and is binding. 35. T....
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....ction 50 of the Act. Section 37 and Section 50 are not comparable because they belong to two different statutory schemes. Section 37 containing the provision of appeal is part of a much larger framework that, as seen above, has provisions for the complete range of law concerning domestic arbitration and international commercial arbitration. Section 50 on the other hand contains the provision of appeal in a much limited framework, concerned only with the enforcement of New York Convention awards. In one sense, the two sections, though each containing the appellate provision belong to different statutes. 62. Having come to this conclusion, it would appear that the decisions rendered by the Court on the interplay between Section 39 of the 1940 Act and the Letters Patent jurisdiction of the High Court shall have no application for deciding the question in hand. But that would be only a superficial view and the decisions rendered under Section 39 of the 1940 Act may still give the answer to the question under consideration for a very basic and fundamental reason. 37. It is submitted that reliance placed by the appellant on the judgment of Conros (supra) is totally misplaced. Th....
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.... Division Bench of this court in the case of Conros. It is submitted that bar under section 5 of the Arbitration Act, has been considered by the Supreme Court in the case of ITI Vs. Siemens (supra) and inspite of such bar, it has been held by the Supreme Court that the revision under section 115 of the Code of Civil Procedure is maintainable. It is submitted that appeal under section 10F is not expressly or impliedly taken away under the Arbitration Act and thus appeal filed by the appellant under Section 10F is maintainable and shall be heard on merits. 41. I have heard the learned counsel appearing for the parties at length on the issue of maintainability of the present appeal and have given my anxious consideration to the rival submissions made by the learned counsel. 42. The Supreme Court in the case of Fuerst Day Lawson Limited (supra) after referring to the decision of the Constitution Bench in the case of P.S. Sathappan Vs. Andhra Bank Ltd. (2004) 11 SCC 672, the judgment of the Supreme Court in the case of Mohindra Supply Company (supra) held that the Arbitration and Conciliation Act, 1996 is a self-contained and exhaustive code in itself. Arbitration and Conciliation....
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....cise any jurisdiction under section 397 and 398 read with section 402 of the Companies Act, 1956. It is clear that by the impugned order CLB has determined the rights of the parties flowing out of the provisions of the Arbitration Act, 1996 and not the provisions of the Companies Act, 1956. In my view, CLB did not adjudicate any disputes between the parties under section 397 and 398 of the Companies Act, 1956 while referring the parties to Arbitration under section 8 of the Arbitration Act, 1996. In my view, remedy of appeal if any, thus has to be traced out from within the provisions of the Arbitration Act, 1996 and not under any other provisions of law including Companies Act, 1956. From the perusal of the pleadings including appeal memo in the present proceedings, it is clear that the order passed by CLB is under section 8 of the Arbitration Act, 1996 and not under the provisions of the Companies Act, 1956. I am of the view that since the Arbitration Act, 1996 is a self-contained, complete and exhaustive code in all respects, all the remedies from the orders passed and action taken in Arbitration Act, 1996 must flow from the said statute itself. It carries negative import and....
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....other statutes. It has been held that the Arbitration Act which is a consolidating and amending act being substantially in the form of a code relating to arbitration must be construed without any assumption that it is not intended to alter the law relating to appeals. The Supreme Court held that the Letters Patent Appeal was not maintainable. 47. The Division Bench of this Court in the case of Jet Airways (supra) after considering the judgments of the Supreme Court and various other provisions of the Arbitration Act and Letters Patent Act held that perusal of Arbitration Act, 1996 indicate that it provides for filing of appeal against only some specified orders and do not provide for appeal against every order passed in the proceedings under 1996 Act. It has been held that the general law cannot defeat the provisions of special law to the extent to which they are in conflict; else effort has to be made on reconciling the two provisos by homogeneous reading. It has been held that the provisions of section 37 (the relevant portion of which is para materia relevant portion of section 39 of 1940 Act) leave no manner of doubt that the provisions of the special enactment will prevail ....
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.... which is provided under law for hearing the appeal from the order of CLB, will be the appellate forum. The Supreme Court held that while section 50 of the Arbitration Act provides for the orders which can be made the subject matter of the appeal, the forum to hear the appeal is to be tested with reference to the appropriate law governing the authority of forum, which passed the original order, that is, in the case on hand before Supreme Court was CLB. It is held that section 10F read with section 10(1)(a) of the Companies Act provides for such forum to hear the appeal from the orders of CLB as the high Court within the jurisdiction of which the registered office of the company in issue is situated. It has been held that the appeal is a statutory remedy and it can lie only to the specified forum. The appellate forum cannot be decided on the basis of cause of action as applicable to original proceedings such as suit which could be filed in any court where part of cause of action arises. 49. The Judicial Authority has not been defined in any of the provisions of Arbitration Act, 1996. In my view the court may in appropriate matter act as judicial authority under section 8 whereas ....
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....he Arbitration Act, 1996 being a self-contained code and the order under Section 8 passed by the judicial authority or by the court is not appealable under Section 37, the present appeal under Section 10F is not maintainable. In my view, there is no merit in the submission of Mr. Dwarkadas, the Learned Senior Counsel that there is no bar under Section 37 from hearing appeal against any other order nor specifically mentioned in Sections 37(1) (a) and (b) and 37(2) (a) and (b). In my opinion, from the expression used "and from no others", it is clear beyond reasonable doubt that appeal is not maintainable against any other order other than what is mentioned in Section 37 (1) (a) and (b) and 37 (2) (a) and (b). In my view there is clear bar under Section 37 restricting right of appeal only against specified orders set out therein and no other orders. In my view, Section 5 of the Arbitration Act, 1996 leave no room for doubt that judicial authorities and court is restrained from intervening in matters governing domestic arbitration "except where so provided". In my view, an order passed under Section 8 of the Arbitration Act, not having been provided as appealable order under under Sec....
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....tion under Section 45 to refer parties to arbitration is expressly appealable under Section 50(1) (a). It is thus clear that in case of proceedings falling under Part II of the Arbitration Act, 1996, the legislature had intended clearly to provide for the appeal in case of an order refusing to refer parties to the arbitration under Section 45 of the Act. If legislature intended to provide appeal in case of similar situation in respect of the proceedings falling under Part I of the Arbitration Act 1996, legislature would have provided for an appeal also in respect of order passed by the judicial authority under Section 8 refusing or referring parties to arbitration under Section 8. It is thus clear that in case of proceedings covered by Part I of the Arbitration Act, the legislature has intended the minimum interference of court by not providing any appeal against order passed by the judicial authority or court under section 8 of the Arbitration Act, 1996. In my opinion, the legislature has consciously taken away the right to appeal against all other orders which are not provided in Section 37 of the Arbitration Act, 1996 had so far as proceedings falling under Part I of the Arbitra....
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.... 1940 Act may still give, the answer to the question under consideration for a very basic and fundamental reason. In my view, the provisions under Section 39 of the Indian Arbitration Act is in paramataria with section 37 of the Arbitration Act, 1996. In my view, the ratio laid down by the Supreme Court in case of Mohindra Supply and others (supra) would clearly attract to the facts of this case and I am bound by such precedent. 57. In my view, there is no merit in the submission of Mr.Dwarkadas, the Learned Senior Counsel that by virtue of the order passed by the CLB under Section 8 of the Arbitration Act, 1996, the proceeding filed by the appellant under Sections 397, 398 read with Section 402 of the Companies Act, 1956 is terminated and is put to an end and thus the Appellant would be without any remedy in law. The Supreme Court in case of P. Anand Gajapathi Raju (supra) has held that language of Section 8 is peremptory and is thus obligatory for the Court to refer the parties to arbitration in terms of their arbitration agreement. Nothing remains to be decided in the original action or the appeal arising therefrom. It is held that all the rights, obligations and remedies ....