TaxTMI 
TaxTMI 
2018 (2) TMI 412
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....was passed pursuant to Arbitration Rule No.125 of the Grain and Feed Trade Association (GAFTA) directing the Appellants, who were the sellers, to pay the Respondents, who were the buyers, a sum of US$ 846,750 together with compound interest at the rate of 4% calculated at quarterly rests. In appeal, by an order dated 16th April, 2015, the Appellate Tribunal directed the appellants to pay a sum of US$ 815,000 together with compound interest at the rate of 4% calculated at quarterly rests. 4. Being aggrieved by the Appellate Award, the Appellants filed an appeal before the Queen's Bench. However, the said appeal came to be rejected on 14th July, 2015, on the ground that the award passed by the Appellate Tribunal was not obviously wrong. Against the aforesaid judgment, the Appellants filed an appeal before the Queen's Bench Division, Commercial Court, which was rejected on 15th September, 2015. The Appellants, undeterred, filed yet another appeal before the Court of Appeal, Civil Division, in U.K. The Court of Appeal refused to grant leave to appeal on the ground that the award was not obviously wrong. 5. Meanwhile, an Execution Petition, being E.P. No.167 of 2015, was filed und....
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....read with Section 21, which provides that the provisions of the Commercial Courts Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force. He argued that Section 37 of the Arbitration Act, which is expressly mentioned in the proviso to Section 13(1) of the Commercial Courts Act, specifically speaks of the enumerated appeals in the said provision, together with the expression "and no others", which expression is conspicuous by its absence in Section 50 of the Arbitration Act. He also argued that the language of Section 13(1) of the Commercial Courts Act is extremely wide - it embraces "decisions", "judgments" and/or "orders" by the Commercial Division of a High Court, and that this being so, the impugned judgment of 8th August, 2017, allowing the execution petition filed by the Respondents, would certainly be a "decision" and/or "judgment" which would expressly be covered by the wide terms contained in Section 13(1) of the Commercial Courts Act. He also relied upon Section 13(2) to state that, after the coming into force of the Commercial Courts Act, appeals lie only in the manner indicated in the aforesaid Act and not other....
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....iding of an extra appeal by the Commercial Courts Act, which is impliedly excluded by the Arbitration Act, would militate against the object of both Acts. He also relied upon various other judgments of this Court and the High Courts to buttress these submissions. The learned counsel further argued that in cases of enforcement of foreign awards of an amount below Rs. 1 crore, admittedly, no appeal would lie. However, merely because the amount contained in the foreign award in question was above Rs. 1 crore, it does not stand to reason that an extra appeal would be provided. That is not the intention of the Commercial Courts Act. He also exhorted us to dismiss the present appeals, stating that the present attempt by the Appellants was one more attempt to delay the inevitable, and referred us to the various proceedings in the U.K. as well as proceedings in this country to submit that we should dismiss the appeal on this ground alone. 9. Having heard learned counsel for both parties, it is interesting to note that both the Commercial Courts Act as well as the detailed Arbitration Amendment Act of 2015, were brought into force on the same day, i.e. 23rd October, 2015, as a result of ....
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....t otherwise requires, _ (i) "Specified Value", in relation to a commercial dispute, shall mean the value of the subject-matter in respect of a suit as determined in accordance with section 12 which shall not be less than one crore rupees or such higher value, as may be notified by the Central Government. 4. Constitution of Commercial Division of High Court. - (1) In all High Courts, having ordinary civil jurisdiction, the Chief Justice of the High Court may, by order, constitute Commercial Division having one or more Benches consisting of a single Judge for the purpose of exercising the jurisdiction and powers conferred on it under this Act. (2) The Chief Justice of the High Court shall nominate such Judges of the High Court who have experience in dealing with commercial disputes to be Judges of the Commercial Division. 5. Constitution of Commercial Appellate Division. -(1) After issuing notification under sub-section (1) of section 3 or order under sub-section (1) of section 4, the Chief Justice of the concerned High Court shall, by order, constitute Commercial Appellate Division having one or more Division Benches for the purpose of exercising ....
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....civil court of original jurisdiction in a district (not being a High Court) shall be filed in, and heard and disposed of by the Commercial Court exercising territorial jurisdiction over such arbitration where such Commercial Court has been constituted. 11. Bar of jurisdiction of Commercial Courts and Commercial Divisions. - Notwithstanding anything contained in this Act, a Commercial Court or a Commercial Division shall not entertain or decide any suit, application or proceedings relating to any commercial dispute in respect of which the jurisdiction of the civil court is either expressly or impliedly barred under any other law for the time being in force. 13. Appeals from decrees of Commercial Courts and Commercial Divisions. - (1) Any person aggrieved by the decision of the Commercial Court or Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of judgment or order, as the case may be: Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil ....
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....ansferred suit or application and the court may, in its discretion, prescribe a new time period within which the written statement shall be filed. (5) In the event that such suit or application is not transferred in the manner specified in sub-section (1), sub-section (2) or sub-section (3), the Commercial Appellate Division of the High Court may, on the application of any of the parties to the suit, withdraw such suit or application from the court before which it is pending and transfer the same for trial or disposal to the Commercial Division or Commercial Court, as the case may be, having territorial jurisdiction over such suit, and such order of transfer shall be final and binding. 21. Act to have overriding effect. - Save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Act." 12. The Arbitration and Conciliation Act, 1996, repealed the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition a....
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....d 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 Commercial Division of the High Court. To this main provision, an exception is carved out by the proviso. The primary purpose of a proviso is to qualify the generality of the main part by providing an exception, which has been set out with great felicity in CIT v. Indo-Mercantile Bank Ltd., 1959 Supp (2) SCR 256 at 266-267, thus: "The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. "It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso". Therefore it is to be construed harmoniously with the main enactment. (Per Das, C.J. in Abdul Ja....
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....appeal 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 Commercial Courts Act. 17. So far, so good. However, it is Shri Giri's main argument that Section 50 of the Arbitration Act does not find any mention in the proviso to Section 13(1) of the Commercial Courts Act and, therefore, notwithstanding that an appeal would not lie under Section 50 of the Arbitration Act, it would lie under Section 13(1) of the Commercial Courts Act. 18. To answer this question, it is necessary to advert to the judgment in Fuerst Day Lawson (supra). The common question that arose for consideration in the batch of cases before the Court was whether an order, though not appealable under Section 50 of the Arbitration Act would, nevertheless be subject to appeal under the Letters Patent of the High Court. In answering this question, this Court exhaustively reviewed the authorities and then stated, in paragraph 36, that the decisions noticed so far lay down certain broad principles. We are directly concerned with the principle laid down in sub-section (vii), w....
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....atutory 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 the New York Convention Awards. In one sense, the two sections, though each containing the appellate provision belong to different statutes." (at pages 356-357) The Court then went into the legislative policy which led to the enactment of Section 50 of the Arbitration Act. It found that under the erstwhile Foreign Awards Act, a formal decree had to be passed in terms of the foreign award, and there was a possibility that such decree may be in excess of or not in accordance with the award. It was for this reason that an appeal lay under Section 6(2) of the Foreign Awards Act even against a decree enforcing the foreign award. However, this was done away with in the Arbitration Act, by enacting Section 49, which makes a radical change by which the foreign award itself is deemed to be a decree of the Court. The e....
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....this Court in Fuerst Day Lawson (supra), which Parliament is presumed to know when it enacted 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 provision contained in a self-contained code on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in paragraph 89 of Fuerst Day Lawson (supra) that appeals which are not mentioned 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 arbitration relating to appeals arising out of commercial disputes, would obviously not apply to cases covered by Section 50 of the Arbitration Act. 22. However, the question still arises as to why Section 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 t....
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....tion 50 of the Arbitration Act, no forum can be provided for. 25. A recent judgment of this Court in Arun Dev Upadhyaya v. Integrated Sales Service Ltd., (2016) 9 SCC 524 at 537 was adverted to by counsel for both sides. On facts, in this case, the Single Judge had refused to enforce a foreign award in favour of the appellants. The Respondents, in that case, claimed that an appeal from the Single Judge was not maintainable in view of the abolition of the letters patent appeal by a Maharashtra Act of 1986. This Court, following Fuerst Day Lawson (supra), repelled the aforesaid contention in the following terms: "25. The aforesaid provision clearly lays down that a forum is created i.e. Commercial Appellate Division. Section 50(1)(b) of the 1996 Act provides for an appeal. Section 50(1)(b) has not been amended by the Act that has come into force on 23-10-2015. Thus, an appeal under Section 50(1)(b) of the 1996 Act before the Division Bench is maintainable. 26. Thus analysed, we find that the impugned judgment [Integrated Sales Services Ltd. v. DMC Management Consultants Ltd., 2016 SCC OnLine Bom 4445] of the learned Single Judge under Section 50(1)(b) of....