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TMI Blog2020 (7) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... Domestic matches played in India. b) The appellant entered into an Agreement with the respondents on 19.02.2000 whereunder the respondents were granted exclusive global marketing rights, multi-media rights and other rights relating to the telecast/broadcast of cricketing events conducted in India by the BCCI for the period between 01.01.2000 and 30.09.2004. The total consideration paid by the respondents to the appellant for these rights was USD 43.75 million. c) Disputes arose between the appellant and the respondents under the Agreement. It is the case of the respondents that the appellant was to provide a minimum of 9 cricket series and a minimum of 27 days of International cricket in each cricketing season (September-April) that would be telecast live and the same number of highlights of at least one hour each for each day of the matches. The disputes pertain to non-delivery of two series, namely, India vs. Pakistan that was to be conducted between February 2004 and March 2004 and India vs. Australia, to be conducted between September 2004 and October 2004. While the India-Pakistan series originally scheduled for February-March 2004 was cancelled, the India-Australia match ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the respondents are not entitled to release of the amount. It was further contended that there are three awards in favour of the appellant herein, whereunder, a sum of Rs. 42 crores is payable by the respondents for which the appellant has filed separate applications seeking enforcement of those awards. The appellant submitted that the said application should be heard along with the aforesaid applications filed by it for enforcing the three awards against the very same respondents. 4. By the impugned order, the learned Single Judge has held that the appellant is entitled to recovery of only a sum of Rs. 22,43,55,126/- from the respondents herein under the three awards and therefore it would be appropriate to withhold a sum of Rs. 22,43,55,126/- out of the sum of Rs. 33,69,94,847/-. Resultantly, the learned Single Judge has ordered the Registry to release of a sum of Rs. 11 crores in favour of the respondents. 5. Mr. Dholakia, learned counsel for the respondents has raised a preliminary objection regarding the maintainability of the present appeal. He would contend that an appeal under Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Divi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the respondents. 9. The short issue that arises for consideration is as to whether the present appeal, directed against an order passed in arbitration proceedings, is maintainable under Section 13 of the Commercial Courts Act? 10. Section 13 of the Commercial Courts Act read as under: "13. Appeals from decrees of Commercial Courts and Commercial Divisions.-(1) [Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order. (1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, 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 the judgment or order: 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 Procedure, 1908 (5 of 1908 as amended by this Act and Section 37 of the Arbitration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting or refusing to grant an interim measure under Section 17. (3) 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." 12. A glance at the above provisions shows that Section 13 of the Commercial Courts Act provides for an appeal from orders passed by a Commercial Division of a High Court to the Commercial Appellate Division of that High Court, which are enumerated under Order XLIII of the CPC, as amended by the Commercial Courts Act or from orders which are mentioned in Section 37 of the A&C Act. Section 37 of the A&C Act restricts the appeals to the following orders: 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. 13. In Kandla Export Corporation & Anr. vs. M/s. OCI Corporation & Anr. reported as 2018 14 SCC 715, while deciding an appeal arising from a decision of the Division Bench of the High Court of Gujarat that had dismissed an enforcement appeal which had arisen from an order passed in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case. Where, as in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude, from it by implication what clearly falls within its express terms.' The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect. (Vide also Toronto Corpn. v. Attorney-General of Canada [Toronto Corpn. v. Attorney-General of Canada, 1946 AC 32 (PC)]" 14. The proviso goes on to state that an appeal shall lie from such orders passed by the Commercial Division of the High Court that are specifically enumerated under Order 43 of the Code of Civil Procedure Code, 1908, and Section 37 of the Arbitration Act. It will at once be noticed that orders that are not specifically enumerated under Order 43 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t took into account its previous rulings in Fuerst Day Lawson Limited vs. Jindal Exports Limited, (2011) 8 SCC and some other judgments. XXX XXX XXX 11. The reference to Order XLIII Rule 1-relied upon on behalf of SDMC in the context of this case, in the opinion of this court, is misplaced. Order XLIII Rule 1(q), upon which considerable emphasis was placed to say that the appeals against directions to secure amounts during pendency of proceedings applies to suits and suits alone (as is evident from Order XXXVIII and all the attendant provisions), and not to proceedings in respect of an award. Thus, reference to Order XLIII to "draw in" the jurisdiction of the Division Bench, is wholly unjustified. Likewise, the Court also rejects the appellant's arguments that Section 36 of the Arbitration Act attracts the provisions of the Code of Civil Procedure. In fact, Section 36 refers to and directs courts to follow CPC in proceedings relating to enforcement of arbitral awards. The logical corollary is that the provisions of the CPC that deal with the proceeding for enforcement of decrees and orders (such as in execution like Order XXI CPC), would be attracted. 12. In view of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... important decision on this issue is of the Supreme Court in the case of Kandla Export Corporation. 25. The Supreme Court thus has clarified that in respect of the orders under the Act of 1996, only those appeals mentioned in Section 37 of the Act of 1996 are maintainable before Commercial Appellate Division. The Supreme Court held that the Act of 1996 is a self-contained code on the matters pertaining to arbitration, and which is exhaustive. The Supreme Court then adverted to the foundational logic of making the Arbitration Act a self-contained code. it was held that the Act of 2015 provided no additional right of appeal otherwise than the appeal otherwise than the appeals under the Act of 1996. Though this case arose before the Supreme Court in a foreign award and under Section 50, the underlying principle equally applies to the Section 37 of the Act of 1996. The dicta in Kandla Export is clear that in respect of the orders arising from the Act of 1996; an appeal will lie only to the extent provided under Section 37 of the Act of 1996." XXX XXX XXX 27. The learned Single Judge by the impugned order has allowed the chamber summons filed by the Respondents-Claimants and has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts Act. 17. In any event, applying the principle of "generalia specialibus non derogant", the Arbitration and Conciliation Act, 1996 would be considered as a special Act for all proceedings arising under the Act and it would therefore prevail over the Commercial Courts Act which would be treated as a general Act. In this context, we may usefully refer to Life Insurance Corporation of India vs. D.J. Bahadur and Others, reported as 1981 1 SCC 315 where the Supreme Court observed has as under:- "52. In determining whether a statute is a special or a general one, the focus must be on the principal subject-matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. In law, we have a cosmos of relativity, not absolutes so too in life. The ID Act is a special statute devoted wholly to investigation and settlement of industrial disputes which provides definitionally for the nature of industrial disputes coming within its ambit. It creates an infrastructure for investigation into, solution of and adjudication upon industrial disputes. It also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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