TaxTMI 
TaxTMI 
2016 (9) TMI 1610
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....in favour of the 1st Respondent in ICDR Case No. 50-181-T-00327-09 by the International Arbitration Tribunal (for short, "the tribunal") making the Appellant the DMC Management Consultants Limited and another jointly and severally liable to pay USD 6,948,100 within ten days from the date of passing of the award. 3. It is the case of the Respondent that the international arbitration award had attained finality as the Appellant herein had not challenged it under Delaware Law which is the applicable law. On 29.04.2010, the 1st Respondent filed an application Under Sections 47 and 49 of the Arbitration and Conciliation Act, 1996 (for brevity, "the 1996 Act") for enforcement of the Award before the District Judge, Nagpur and the proceeding continued before the concerned District Judge till the Arbitration and Conciliation (Amendment) Act, 2015 (for short, "2015 Act") came into force with effect from 23rd October 2015, by which the High Court was conferred with the original jurisdiction in case of International Commercial Arbitration. After the 2015 Act came into force, the 1st Respondent filed Misc. Civil Application No. 1319 of 2015 before the High Court for enforcement of the award....
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....he point that the Letters Patent Appeal under Clause 10 was not available in arbitration matters and Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015 (for short "the Act") would not be applicable to an arbitration appeal. The High Court noticed the language used in Section 50(1)(b) of the 1996 Act and the constitution of the forum Under Section 15 of the Letters Patent and opined that the submissions canvassed in support of the application for review were absolutely unsustainable. Being of this view, the Division Bench dismissed the application for review. As stated earlier, both the orders have been challenged in these two appeals by special leave. 7. We have heard Mr. Anish Kapur, learned senior Counsel for the Appellant and Mr. Balbir Singh, learned senior Counsel for the Respondent. 8. First we shall refer to the decision in Tusar Dhansukhlal Shah (supra) as the Division Bench in the impugned order has placed reliance on the same. In the said case, the question that was posed reads as follows: The only question which falls for consideration is: whether intra-court Letters Patent Appeals ....
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....in paragraph 18 of the judgment. It reads as follows: Mr. U.U. Lalit, learned Senior Counsel for the State of Maharashtra, while supporting the impugned judgment submitted that there is an anomaly created by, or deficiency found in Section 3 of the 1986 Act inasmuch as Section 3 of the said Act read with Section 9 of the 1987 Act fails to make any provision for appeal against a decree or order passed after the commencement of the Act in any suit or other proceedings pending in the High Court since before the commencement of the Act. He sought ten days' time to have instructions from the State of Maharashtra in this regard. Thereafter, on the basis of Letter No. 37-PF 2131097 dated 17-12-2004 of the Principal Secretary and RLA, State of Maharashtra, IA No. 10 is filed seeking permission to place on record the said letter indicating the willingness of the State of Maharashtra to take necessary steps to make legislative amendment to Section 3 of Maharashtra Act 17 of 1986, relevant portions of which read: With reference to the above subject, I have to state that you are hereby given instructions to make a statement before the Hon'ble Supreme Court....
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....City of Pune-such a petition Under Section 34 of the Act would be maintainable before the District Court. An appeal Under Section 37 would be maintainable in the High Court before the Single Judge on the Appellate Side. No Letters Patent Appeal against the order passed by the single Judge Under Section 37 can be filed before the Division Bench of this Court, whereas if the Arbitral Tribunal passes an award in City of Mumbai, a Petition Under Section 34 could be filed on the original side of this Court and, it would be heard by the single Judge sitting on the original side of this Court. Appeal, however, against such an order would be maintainable before the Division Bench of this Court and it would not be barred by the words "appeal arising from a statute"... Be it noted that the Division Bench has referred to earlier judgment in Jet Air (India) Ltd. v. Subrata Roy Sahara and concluded that an appeal arising out of any suit or proceeding which are filed on the original side would be maintainable in view of the Amendment Act of 2008. The impugned order, as we find, placing heavy reliance on the aforesaid decision has opined that the Letters Patent Appeal is maintainable. 12. T....
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....en specifically stated, the Appellant therein could maintain an appeal before this Court. It was contended that the Appellant had a right of appeal to this Court. The two-Judge Bench placing reliance on Nirma Ltd. v. Lurgi Lentjes Energietechnik Gmbh and Anr. (2002) 5 SCC 520, ITI Ltd. v. Siemens Public Communications Network Ltd. (2002) 5 SCC 510, Shyam Sunder Agarwal and Co. v. Union of India (1996) 2 SCC 132 and Punjab Agro Industries Corporation Limited v. Kewal Singh Dhillon (2008) 10 SCC 128, held: 20. The right to appeal to the Supreme Court referred and excluded from the bar contained in Section 50(2) of the Act, refers to appeals Under Article 132 or 133(1) against any judgment, decree or final order of the High Court, if the High Court certified Under Article 134-A that the case involves a substantial question of law as to interpretation of the Constitution or that the case involves a substantial question of law of general importance and that in the opinion of the High Court the said question needs to be decided by the Supreme Court. The words "right to appeal" refer to a right conferred either under the Constitution or under a statute to file an appe....
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....see no conflict between the Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Code of Civil Procedure then the provisions of the Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 of the Code of Civil Procedure which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 Code of Civil Procedure only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100-A. 16. In Fuerst Day Lawson Limited (supra), the two-Judge Bench was dealing with the question whether an order, though not appealable Under Section 50 of the 1996 Act would nevertheless be subject to appeal under the relevant provision of the Letters Patent of the High Court. In other words, even though the 1996 Act does not envisage or permit an appeal from the order, the party aggrieved by it can still have his way bypassing the said Act and taking recourse to another jurisdiction. To answer the said question the Court referred to various decisions in the field and culled out the broad principles which are reproduc....
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....1996 Act and analysed the earlier decisions in the field including the judgment in Union of India v. Mohindra Supply Co. AIR 1962 SC 256 : (1962) 3 SCR 497 wherein it has been held that the Letters Patent Appeal against an order passed by a Single Judge of the High Court in appeal Under Section 39(1) of the Arbitration Act, 1940 was not maintainable in terms of Sub-section (2) of Section 39 of the said Act. Though appeal was held not maintainable in view of the express language employed in Sub-section (2) of Section 39 of the Arbitration Act, 1940, the two-Judge Bench took note of the observation which is to the following effect: ... The proceedings relating to arbitration are, since the enactment of Arbitration Act 10 of 1940, governed by the provisions of that Act. The Act is a consolidating and amending statute. It repealed the Arbitration Act of 1899, Schedule 2 of the Code of Civil Procedure and also Clauses (a) to (f) of Section 104(1) of the Code of Civil Procedure which provided for appeals from orders in arbitration proceedings. The Act set up machinery for all contractual arbitrations and its provisions, subject to certain exceptions, apply also to every ar....
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....ned District Judge. During the pendency of the proceeding, the Explanation of Sub-section (2) of Section 47 of the 1996 Act was amended. The amended Explanation reads as follows: Explanation: In this Section and in the Sections following in this Chapter, "Court" means the High Court having original jurisdiction to decide the questions forming the subject-matter of the arbitral award if the same had been the subject-matter of a suit on its original civil jurisdiction and in other cases, in the High Court having jurisdiction to hear appeals from decrees of courts subordinate to such High Court. 21. In spite of the amendment, the learned District Judge passed an order. However, the Respondent moved the High Court and it was accepted by both the parties before the learned Single Judge that the District Judge had no jurisdiction and thereafter the learned Single Judge took up the matter and passed the order. The Division Bench in the impugned order has referred to Section 13(1) of the Act. It reads as follows: 13 (1) Any person aggrieved by the decision of the Commercial Court or Commercial Division of a High Court may appeal to the Commercial Appellate ....