TMI Blog2020 (7) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... a foreign award, the Supreme Court had observed an order which refers parties to arbitration under Section 8, not being appealable under Section 37(1)(a), would not be appealable under Section 13(1) of the Commercial Courts Act. Similarly, an appeal rejecting a plea referred to in sub-sections (2) and (3) of Section 16 of the Arbitration Act would equally not be appealable under Section 37(2)(a) and, therefore, under Section 13(1) of the Commercial Courts Act. The present appeal is directed against an interlocutory order passed in proceedings under Section 36 of the A C Act, whereby a part of the amount which had been deposited by the appellant in this court, has been directed to be released in favour of the respondents. Under Section 37, no appeal is maintainable from any order passed under Section 36 of the A C Act. Further, Section 36 of the A C Act does not attract the provisions of the Code of Civil Procedure. Since the statue does not provide for an appeal against and order passed under Section 36, it is axiomatic that the present appeal is also not maintainable. The impugned order would neither fall under Order XLIII of the CPC, nor under Section 37 of the A C Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut after the expiry of the agreement between the parties. Claiming that during the currency of the Agreement, there was a shortfall of 17 days on the part of the appellant, in providing cricketing days under the Agreement, the respondents demanded a sum of USD 5.50 million from the appellant. d) The parties submitted themselves to arbitration. The Sole Arbitrator passed an award on 26.12.2016, allowing the claim of the respondents. Under the Award, it was held that the respondents are entitled to US$ 5,509,259/- from the appellant. The respondents were granted pendente lite interest @ 18% per annum on the amount awarded, from 19.10.2005 till the date of the award. The respondents were also awarded costs of Rs. 35,50,000/-. e) The appellant challenged the award by filing a petition under Section 34 of the Arbitration and Conciliation Act, 1996 (in short, 'A C Act'), on the Original Side of this court, numbered as O.M.P (COMM) 225/2017. The respondents filed a petition, registered as OMP (ENF) (COMM) 232/2018 for enforcing the said award. f) Vide order dated 13.12.2016, passed in OMP (ENF) (COMM) 232/2018, the learned Single Judge directed the appellant herein to dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;Commercial Courts Act') is maintainable only against those orders passed by a Commercial Division or a Commercial Court that have been specifically enumerated in Order XLIII of the CPC and Section 37 of the A C Act; that the order under challenge is not one which falls under Order XLIII of the CPC or under Section 37 of the A C Act; that the present appeal has been filed against an order which has been passed in proceedings under Section 36 of the A C Act and therefore, is not maintainable under Section 37 of the A C Act. Mr. Dholakia has relied on the judgment dated 12.02.2019, passed by a co-ordinate Bench of this court in EFA(OS)(COMM) 4/2019 entitled Reliance Communications Ltd. vs. ATC Telecom Infrastructure Pvt. Ltd. He has also placed reliance on a decision of the Division Bench of the Bombay High Court in Kakade Construction Company Ltd. vs. Vistra ITCL (India) Ltd., reported as 6. On the other hand, Mr. Rajiv Sharma, learned counsel appearing for the appellant asserted that the instant appeal is maintainable under Section 13 of the Commercial Courts Act. He contended that Section 10 of the Commercial Courts Act provides that all matters relating to arbitration fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1996).] (2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act. 11. Sections 36 and 37 of the A C Act are extracted below:- 36. Enforcement-(1) Where the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court. (2) Where an application to set aside the arbitral award has been filed in the Court under section 34, the filing of such an application shall not by itself render that award unenforceable, unless the court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of subsection (3), on a separate application made for that purpose. (3) Upon filing of an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on proceeding under the Arbitration Act, in respect of a foreign award, the Supreme Court had observed as under:- 13. Section 13(1) of the Commercial Courts Act, with which we are immediately concerned in these appeals, is in two parts. The main provision is, as has been correctly submitted by Shri Giri, a provision which provides for appeals from judgments, orders and decrees of the Commercial Division of the High Court. To this main provision, an exception is carved out by the proviso. The primary purpose of a proviso is to qualify the generality of the main part by providing an exception, which has been set out with great felicity in CIT v. Indo-Mercantile Bank Ltd. [CIT v. Indo-Mercantile Bank Ltd., 1959 Supp (2) SCR 256 : AIR 1959 SC 713], thus: 9. ... The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CPC would, therefore, not be appealable, and appeals that are mentioned in Section 37 of the Arbitration Act alone are appeals that can be made to the Commercial Appellate Division of a High Court. 15. Thus, an order which refers parties to arbitration under Section 8, not being appealable under Section 37(1)(a), would not be appealable under Section 13(1) of the Commercial Courts Act. Similarly, an appeal rejecting a plea referred to in sub-sections (2) and (3) of Section 16 of the Arbitration Act would equally not be appealable under Section 37(2)(a) and, therefore, under Section 13(1) of the Commercial Courts Act. (emphasis added) 14. Referring to the judgment of the Supreme Court in Kandla Export Corporation (supra), while dealing with an appeal that had arisen from an order directing the Judgment Debtor therein to deposit 15 per cent of the awarded amount, in EFA(OS) (COMM) 3/2019 entitled South Delhi Municipal Corporation vs. M/s. Tech Mahindra decided on 12.02.2019, a Division Bench of this Court held that an appeal is a creation of a statute and cannot be claimed as a matter of right. The following are the relevant observations made in this regard:- 6. A conjo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the above discussions, we conclude that the present appeal is not maintainable. The appellant's remedy clearly lies elsewhere. An attempt was made to urge that no litigant can be deprived of remedy if there is a grievance: ubi jus ibi remedium; however, that argument is wholly without substance because an appeal, it has been repeatedly emphasised, is a specific creation of statute and cannot be claimed as a matter of right. This was explained pithily in Ganga Bai v Vijay Kumar, (1974) 2 SCC 393, in the following terms: There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. (emphasis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-Claimants and has appointed receiver regarding the properties specified in the order. This order has been passed while exercising power under Section 36 of the Act of 1996 being an executory mechanism. This order not being under the Code of Civil Procedure, the only other category enumerated in Section 13 of the Commercial Courts Act, 2015 is Section 37 of the Arbitration Act, 1996. Section 37 of the Act of 1996 provides appeal only in limited cases. These are order: refusing to refer the parties to arbitration under Section 8; granting or refusing to grant any measure under Section 9; setting aside or refusing to set aside an arbitral award under Section 34. An appeal shall also lie to a Court from an order of the arbitral tribunal accepting the plea referred in sub-Section (2) or sub-Section (3) of Section 16; or granting or refusing to grant an interim measure under Section 17. These are the only orders that have been made appealable. XXX XXX XXX 32. The Act of 2015 and the Act of 1996 reflect the legislative intent of time-bound resolution of commercial disputes. It cannot be the legislative intent to provide a speedy remedy or arbitration only till the award is passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements. From alpha to omega the ID Act has one special mission the resolution of industrial disputes through specialised agencies according to specialised procedures and with special reference to the weaker categories of employees coming within the definition of workmen. Therefore, with reference to industrial disputes between employers and workmen, the ID Act is a special statute, and the LIC Act does not speak at all with specific reference to workmen. On the other hand, its powers relate to the general aspects of nationalisation, of management when private businesses are nationalised and a plurality of problems which, incidentally, involve transfer of service of existing employees of insurers. The workmen qua workmen and industrial disputes between workmen and the employer as such, are beyond the orbit of and have no specific or special place in the scheme of the LIC Act. And whenever there was a dispute between workmen and management the ID Act mechanism was resorted to. 18. Mr. Dholakia, learned counsel for the respondents is also correct in contending that since Section 37 was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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