TMI Blog2016 (11) TMI 1701X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. As is manifest, a person grieved by the award can file objection Under Section 34 of the 1996 Act, and if aggrieved on the order passed thereon, can prefer an appeal. The court can set aside the award or deal with the award as provided by the 1996 Act. If a corrective measure is thought of, it has to be done in accordance with the provision as contained in Section 37 of the 1996 Act, for Section 37(1) stipulates for an appeal in case of any grievance which would include setting aside of an arbitral award Under Section 34 of the Act. Section 5 which commences with a non-obstante Clause clearly stipulates that no judicial authority shall interfere except where so provided in Part 1 of the 1996 Act. As we perceive, the 1996 Act is a complete Code and Section 5 in categorical terms along with other provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme 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 intention of the legislature. 4. Learned senior Counsel would submit that the pronouncement in the ITI Ltd. v. Siemens Public Communications Network Ltd. (2002) 5 SCC 510 holds that the applicability of Code of Civil Procedure is not prohibited and, therefore, Section 5 of the 1996 Act would not be attracted and the High Court can exercise the revisional power to rectify an order passed by the District Court, but the said verdict runs counter to the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 UNCITRAL also adopted in 1980 a set of Conciliation Rules. The General Assembly of the United Nations has recommended the use of these Rules in cases where the disputes arise in the context of international commercial relations and the parties seek amicable settlement of their disputes by recourse to conciliation. An important feature of the said UNCITRAL Model Law and Rules is that they have harmonised concepts on arbitration and conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:- (a) refusing to refer the parties to arbitration Under Section 8; (b) granting or refusing to grant any measure Under Section 9; (c) setting aside or refusing to set aside an arbitral award Under Section 34. (2) An appeal shall also lie to a Court from an order granting of the arbitral tribunal.-- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 to a civil court. The term 'Court' referred to in the said provision is defined Under Section 2(e) of the Act. From the said definition, it is clear that the appeal is not to any designated person but to a civil court. In such a situation, the proceedings before such court will have to be controlled by the provisions of the Code, therefore, the remedy by way of a revision Under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Section 39 of the Act confers right to file appeal, in so far as the orders passed under this Act are concerned, only against such of the orders as fall within one or other of the descriptions given in Clauses (i) to (vi) of Subsection (1) of Section 39. The Parliament has taken care to specifically exclude any other appeal being filed, against any order passed under the Act b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainable. 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 different from the Act of 1940. Therefore, the Code of Civil Procedure 1908 proprio vigore does not apply to the proceedings before the court in its original or appellate jurisdiction. Section 5 imposes a blanket ban on judicial intervention of any type in the arbitral process except 'where so provided under Part I of this Act. Pursuant to this provision, Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 case, the sub Clause (vii) of paragraph 36 is significant. It reads as follows: 36(vii) The exception to the aforementioned Rule is where the special Act sets out a self-contained code and in that event the applicability of the general law procedure would be impliedly excluded. The express provision need not refer to or use the words letters paten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, 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 has been conferred can only be taken away by a statute in specific terms and exclusion of such right cannot be inferred because there is always a strong presumption, that the civil courts have the jurisdiction to decide all questions of civil nature and on that basis the court held that it cannot draw inference merely because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in Part II but emphasis has been laid with regard to adjudication of an appeal within the parameters of Section 50(1)(b) of the 1996 Act. 27. As is manifest, a person grieved by the award can file objection Under Section 34 of the 1996 Act, and if aggrieved on the order passed thereon, can prefer an appeal. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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