TMI Blog2016 (9) TMI 1610X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned 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 5 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 judgment of the High Court is affirmed, though for different reasons - appeal dismissed. - CIVIL APPEAL NOS. 8475-76 OF 2016 (ARISING OUT OF S.L.P. (C) NOS. 22991-92 OF 2016) - - - Dated:- 30-9-2016 - DIPAK MISRA AND C. NAGAPPAN, JJ. For the Appellant : Anish Kapur, Divya Bhalla and B. Vijayalakshmi M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the learned Single Judge reads as follows: (1) The award dated 28.3.2010 passed by the International Arbitration Tribunal in ICDR Case No. 50181T0032709 becomes unenforceable in India to the extent it operates against the non-applicant No. 2-Arun Dev s/o Govindvishnu Upadhyaya and No. 3 Gemini Bay Transcription Pvt. Ltd., and the claim for passing a decree against them in terms of the said award is refused. (2) The award passed by the International Arbitration Tribunal in ICDR Case No. 50181T0032709 to the extent it operates against the non-applicant No. 1-DMC Management Consultants Ltd. is made enforceable in India and the decree is passed in terms of the said award against the non-applicant No. 1. 4. Being dissatisfied with the decision of the learned single judge, the 1st Respondent preferred an appeal Under Section 50(1)(b) of the 1996 Act read with Clause 15 of the Letters Patent of the High Court of Bombay which was registered as Arbitration Appeal No. 3 of 2016. 5. The Appellant herein who was the Respondent before the High Court filed application C.A.M. No. 34 of 2016 contending, inter alia, that the appeal was not maintainable in view of the abolition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any direction, order or writ Under Article 226 of the Constitution of India and every application invoking the jurisdiction of the High Court Under Article 227 or Article 228 of the Constitution of India, pending before the High Court of Judicature at Bombay, on the date of commencement of this Act, or filed on or after the said date, whether the matter in dispute is or has arisen in Greater Bombay or outside Greater Bombay, shall be heard and disposed of by a Division Bench to be appointed by the Chief Justice of the High Court: Provided that, the High Court may, by Rules made after previous publication and with the previous approval of the State Government, prescribe that such of the applications referred to above, arising in Greater Bombay or outside Greater Bombay, as may be specified in the rules, may be heard and disposed of by a single Judge appointed by the Chief Justice. 3. (1) Notwithstanding anything contained in the Letters Patent for the High Court of Judicature at Bombay, dated the 28th December, 1985 and in any other instrument having the force of law or in any other law for the time being in force, no appeal, arising from a suit or other proceeding (includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, i.e., Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Amendment Act, 2008 (Maharashtra Act No. XXVII of 2008). The High Court referred to statement of objects and reasons of the said Amendment Act and reproduced Section 3 which has come into existence after the amendment. Interpreting Section 3, the Division Bench ruled that: ... The words an appeal under any statute clearly referred to any appeal provided under any provision under the statute and where such an appeal is heard by single Judge of the High Court then against such orders passed in appeal by a single Judge of the High Court. Appeals, therefore, provided under Arbitration Act and other Acts which provide that these appeals are to be heard by the single Judge of the High Court then against the order passed in such appeals, Letters Patent Appeal is not maintainable. Here, again, a distinction will have to be drawn between the appeals which are filed from the orders passed by the District Courts, other than the orders passed by the single Judge on the original side of the Bombay High Court. Such appeals which are filed against the orders passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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. 13. On a careful reading of the aforesaid provision, it is limpid that appeal can lie if an order is passed refusing to refer the parties to arbitration as engrafted Under Section 45 of the 1996 Act or to enforce a foreign award as envisaged Under Section 48 of the said Act. Scheme of Section 50 came up for interpretation before this Court in Shin-Etsu Chemical Co. Ltd. (2) and Ors. v. Vindhya Telelinks Ltd. and Ors. (2009) 14 SCC 16 wherein it has been ruled thus: Sections 45 and 50 in Part II of the Act relating to enforcement of certain foreign awards , correspond to Sections 8 and 37 of Part I of the Act. Sub-section (1) of Section 50 provides for an appeal from an order refusing to refer the parties to arbitration Under Section 45, to the court authorised by law to hear appeal by such order. Therefore, the Appellant challenged the orders of the Civil Judge (Class I), Rewa before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein the Constitution Bench was considering the maintainability of the Letters Patent Appeal that arose from the High Court of Madras. The Court referred to various provisions of the Code of Civil Procedure, 1908 and certain clauses of the Letters Patent applicable to the Madras High Court and also referred to Clause 15 of the letters patent of the Bombay High Court and held that: 21. We are of the opinion that in reaching this conclusion the Court missed the relevant portion of Clause 15 of the Letters Patent of the Bombay High Court. Reliance cannot, therefore, be placed on this judgment for the proposition that under Clause 15 of the Letters Patent of the Bombay High Court no appeal to a Division Bench from the order of the Single Judge in exercise of appellate jurisdiction is maintainable. 22. Thus the unanimous view of all courts till 1996 was that Section 104(1) Code of Civil Procedure specifically saved letters patent appeals and the bar Under Section 104(2) did not apply to letters patent appeals. The view has been that a letters patent appeal cannot be ousted by implication but the right of an appeal under the Letters Patent can be taken away by an express provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atent were recognised and saved by Section 108 of the Government of India Act, 1915, Section 223 of the Government of India Act, 1935 and finally, by Article 225 of the Constitution of India. The High Court, therefore, cannot be divested of its Letters Patent jurisdiction unless provided for expressly or by necessary intendment by some special statute. (iv) If the pronouncement of the Single Judge qualifies as a judgment , in the absence of any bar created by a statute either expressly or by necessary implication, it would be subject to appeal under the relevant Clause of the Letters Patent of the High Court. (v) Since Section 104(1) Code of Civil Procedure specifically saves the letters patent appeal; it could only be excluded by an express mention in Section 104(2). In the absence of any express mention in Section 104(2), the maintainability of a letters patent appeal is saved by virtue of Section 104(1). (vi) Limitation of a right of appeal in absence of any provision in a statute cannot be readily inferred. The appellate jurisdiction of a superior court cannot be taken as excluded simply because a subordinate court exercises its special jurisdiction. (vii) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 carries 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 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. 19. The ultimate conclusion reached by the Court is to the following effect: 90. We, thus, arrive at the conclusion regarding the exclusion of a letters patent appeal in two different ways; one, so to say, on a micro basis by examining the scheme devised by Sections 49 and 50 of the 1996 Act and the radical change that it brings about in the earlier provision of appeal Under Section 6 of the 1961 Act and the other o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court shall, by order, constitute Commercial Appellate Division having one or more Division Benches for the purpose of exercising the jurisdiction and powers conferred on it by the 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 Appellate Division. 23. 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. 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 5 of the Act. The Letters Patent Appeal could not have been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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