TaxTMI 
TaxTMI 
2016 (11) TMI 1701
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....tated, while expressing the view that the Code of Civil Procedure is applicable to an appeal preferred Under Section 37 of the Act, the High Court has in the impugned order opined that the cross objection preferred by the Respondent herein was maintainable and accordingly entertained the same after condoning the delay. 3. Assailing the said order, it is submitted by Mr. N.K. Kaul, learned Additional Solicitor General, appearing for the Appellant, that the scheme of the 1996 Act does not grant any space or make any provision as regards the applicability of Code of Civil Procedure unlike the Arbitration Act, 1940 (for short 'the 1940 Act') and in the absence of any express provision, the legislative intendment is not to make it applicable. It is his further submission that Sections 5, 34, 37 and 50 of the 1996 Act constitute a complete code and it clearly provides the measures for adjudging or deciding the validity of an award or even to adjudge the defensibility of an interim order. It is urged by him that recourse to any other mode under the Code of Civil Procedure to challenge an order or the award passed under the Act would create an anomalous situation and frustrate the....
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....37 and the Foreign Awards (Recognition and Enforcement) Act, 1961. It is widely felt that the 1940 Act, which contains the general law of arbitration, has become outdated. The Law Commission of India, several representative bodies of trade and industry and experts in the field of arbitration have pro-posed amendments to this Act to make it more responsive to contemporary requirements. It is also recognised that our economic reforms may not become fully effective if the law dealing with settlement of both domestic and international commercial disputes remains out of tune with such reforms. Like arbitration, conciliation is also getting increasing worldwide recognition as an instrument for settlement of disputes. There is, however, no general law on the subject in India. 2. The United Nations Commission on International Trade Law (UNCITRAL) adopted in 1985 the Model Law on International Commercial Arbitration. The General Assembly of the United Nations has recommended that all countries give due consideration to the said Model Law, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice. The....
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....dia is a party applies, will be treated as a foreign award. 5. The Bill seeks to achieve the above objects. 7. Section 5 of the 1996 Act provides the extent of judicial intervention. It reads as follows: Extent of judicial intervention.--Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. The aforesaid provision is specific and has a definite purpose. The language employed in the aforesaid provision provides the exclusive path for judicial intervention and does not countenance any other method. The same would be clearly demonstrable when we appreciate the scheme of the Act. 8. Section 9 of the 1996 Act provides for interim measures etc. by Court. Section 11 of the 1996 Act deals with appointment of Arbitrators. Chapter 4 that contains Sections 16 & 17 deals with jurisdiction of the Arbitral Tribunals. Section 34 provides for application for setting aside arbitral Award. Section 37 stipulates about the appealable orders. It reads as follows: 37. Appealable orders--(1) An appeal shall lie from the following orders (and from no others) to....
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....96 Act lays the postulate, that notwithstanding anything contained in any other law for the time being in force in matters covered by Part I, no judicial authority shall intervene except so provided wherever under this Act. 12. In ITI Ltd. (supra) the assail was to the judgment and order of the 10th Additional City Civil Judge, Bangalore passed in a Misc. Appeal. The said appeal was preferred against an interim order passed by the arbitral tribunal. The principal question that emerged for consideration before this Court is whether a revision petition Under Section 115 of the Code of Civil Procedure lies to the High Court against an order made by the Civil Court in an appeal preferred Under Section 37 of the Act. It is necessary to note here that the Appellant therein instead of moving the High Court had approached this Court directly. Be that as it may. Hegde, J in his opinion, analysing the scope of Section 5 has opined thus: We also do not find much force in the argument of learned Counsel for the Appellant based on Section 5 of the Act. It is to be noted that it is under this Part, namely, Part I of the Act that Section 37(1) of the Act is found, which provides for an appeal ....
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.... as the same is clearly barred under Sub-section (3) of Section 37. But I agree with the conclusion reached by Brother Hegde, J. that the supervisory and revisional jurisdiction of the High Court Under Section 115 of the Code of Civil Procedure is neither expressly nor impliedly barred either by the provisions of Section 37 or Section 19(1) of the Act. Section 19(1) under Chapter V of Part I of the Act merely states that the Arbitral Tribunal shall not be bound by the Code of Civil Procedure. The said action has no application to the proceedings before the civil court in exercise of powers in appeal Under Section 39(2) of the Act. 15. In International Security & Intelligence Agency Ltd. (supra), a three-Judge bench was dealing with maintainability of a cross objection under Order XLI Rule 22 of the Code of Civil Procedure. It is apt to mention here that the controversy arose in the context of 1940 Act. While dealing with the same, the three-Judge bench ruled thus: 14. Right of appeal is creature of statute. There is no inherent right of appeal. No appeal can be filed, heard or determined on merits unless the statute confers right on the Appellant and power on the Court to do so.....
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....t could have sought for the same relief by filing an appeal in conformity with the provisions of Section 39(1) of the Act. If the subject-matter of the cross objection is to impugn such an order which does not fall within the purview of any of the categories contemplated by Clauses (i) to (vi) of Sub-section (1) of Section 39 of the Act, the cross objection shall not be maintainable." 16. After so stating, the Court adverted to the fate of cross-objections if the appeal itself is held not competent or not maintainable. We are not concerned with the aforesaid delineation and, therefore, construe it inessential to advert to the said facet. Suffice it to mention that the decision was rendered in the backdrop of 1940 Act and hence, it is distinguishable. 17. In Pandey & Co. Builders (P) Ltd. (supra), the Court reproduced a passage from the treatise "Law and Practice of Arbitration and Conciliation" wherein the learned authors have stated thus: In the context of this Act, Section 37(3) barring second appeal against an appellate order Under Section 37(1) and (2) is really superfluous. This Act has not enacted any provision analogous to Section 41 of the previous Act. It is radically ....
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....t, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lucid expression of Tulzapurkar, J., that it carried with it "a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done". In other words, a letters patent appeal would be excluded by the application of the one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded. 20. Slightly earlier, we have mentioned that the court has referred to a series of decisions with regard to the maintainability of a Letters Patent Appeal. The two-Judge Bench has referred to the Constitution Bench decision in P.S. Sathappan (dead) by Lrs. v. Andhra bank Ltd. and Ors. (2004) 11 SCC 672 and other decisions. In paragraph 36 of the judgment, the Court has culled out certain principles. For the present ca....
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....missible. 46. The object of minimizing judicial intervention while the matter is in the process of being arbitrated upon, will certainly be defeated if the High Court could be approached Under Article 227 of the Constitution of India or Under Article 226 of the Constitution of India against every order made by the arbitral tribunal. Therefore, it is necessary to indicate that once the arbitration has commenced in the arbitral tribunal, parties have to wait until the award is pronounced unless, of course, a right of appeal is available to them Under Section 37 of the Act even at an earlier stage. 23. We are absolutely conscious that the principle stated in the aforesaid verdict pertaining to interference of exercise of jurisdiction was in relation to any order passed by the arbitral tribunal. However, we have referred to the same to exposit and underline the stress on the minimal intervention of the court. In essence it has to be remembered that the concept of dispute resolution under the law of arbitration, rests on the fulcrum of promptitude. 24. In ITI Ltd. (supra), it has been held that the jurisdiction of the civil court to which a right to decide a Us between the parties h....
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....ppeal. 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. 24. Thus analysed, we find that the impugned judgment of the learned Single Judge Under Section 50(1)(b) of the 1996 Act is passed in the original side of the High Court. Be that as it may, Under Section 13 of the Act, the single Judge has taken the decision. Section 13 bars an appeal under Letters Patent unless an appeal is provided under the 1996 Act. Such an appeal is provided Under Section 50 of the Act. The Letters Patent Appeal could not have been invoked if Section 50 of the 1996 Act would not have provided for an appeal. But it does provide for an appeal. A conspectus reading of Sections 5 and 13 of the Act and Section 50 of the 1996 Act which has remained unamended leads to the irresistible conclusion that a Letters Patent Appeal is maintainable before the Division Bench. It has to be treated as an appeal Under Section 50(1) (b) of the 1996 Act and has to be adjudicated within the said parameters. The said decision was rendered in respect of appeal Under Section 50 which occurs i....