FUERST DAY LAWSON LTD. v. JINDAL EXPORTS LTD.

The Judgment of the Court was delivered by

AFTAB ALAM, J. 1. Leave granted in SLP (C) No.31068 of 2009 and SLP (C) No.4648 of 2010. · · D

2Copy pinpoint2. The common question that arises for consideration by the Court in this batch of cases is whether an order, though not appealable under section 50 of the Arbitration and Conciliation Act, 1996 (hereinafter "1996 Act"), would nevertheless be subject to appeal under the relevant provision of the Letters E Patent of the High Court. In other words even though the Arbitration Act does not envisage or permit an appeal from the order, the party aggrieved by it can still have his way, by- passing the Act and taking recourse to another jurisdiction.

3Copy pinpoint3. Mr. C.A. Sundaram, senior advocate, however, who led the arguments on behalf of the appellants, would like to frame the question differently. He would ask whether there is any provision in the 1996 Act that can be said to exclude the jurisdiction of the High Court under its Letters Patent either expressly or even impliedly. He would say that the jurisdiction of the High Court under the Letters Patent is an independent jurisdiction and as long as the order qualifies for an appeal under the Letters Patent an appeal from that order would be, undoubtedly, maintainable before the High Court. H

12 SUPREME COURT REPORTS [2011] 11 S.C.R.

4Copy pinpoint4. A correct answer to both the questions would depend upon how the 1996 Act is to be viewed. Do the provisions of the 1996 Act constitute a complete code for matters arising out of an arbitration proceeding, the making of the award and the enforcement of the award? If the answer to the question is in B the affirmative then, obviously, all other jurisdictions, including the letters patent jurisdiction of the High Court would stand excluded but in case the answer is in the negative then, of course, the contention of Mr. Sundaram must be accepted.

5Copy pinpoint5. The batch presently before the Court originally consisted of nine cases, out of which SLP (C) No.16908 of 201 O ended in compromise between the parties.· Of the remaining eight cases, SLP (C) No.13625 of 2010 and SLP (C) No.11945 of 2010 are unrelated and have been wrongly put in this batch. These two SLPs are filed against a common judgment passed D by a single judge of the Delhi High Court insofar as though allowing the petitioners' application for enforcement of two foreign awards, the High Court declined to pass any order for payment of interest on the awarded amounts payable to the petitioners. These two cases are, therefore, directed to be de- E tagged and listed separately. This leaves behind six cases. At the conclusion of hearing, one of the cases, being SLP (C) No.31067 of 2009 was directed, on the prayer made by, thei counsel for the petitioner, to be de-linked from the batch and to be listed separately. It, however, appears that the direction was wrongly obtained since that case and another case in the batch, SLP (C) No.31068 of 2009 arise from a common order and SLP (C) No.31067 of 2009 would also be fully governed! by this judgment. Be that as it may, the direction for de-linking1 • is already made and, hence, that case will be separately listed and dealt with in due course. Of the remaining five cases four come from the Delhi High Court and one from the Calcutta High Court. In SLP (C) No.4648 of 2010 and SLP (C) No.31068 of 2010, the applications filed by the respective respondents in these cases, for enforcement of the foreign award in their favour H

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LTD. [AFTAB ALAM, J.] were allowed by orders passed by a single judge of the High A Court. Against the orders of the single judge, the petitioners in these SLPs filed appeals before the division bench of the High Court. All the appeals were taken together and dismissed by a common order as not maintainable. The petitioners have come before this Court against the order passed by the division bench only, on the question of maintainability of their appeals. Civil Appeal No.36 of 201 O coming from the Calcutta High Court is opposite of the aforementioned two SLPs coming from the Delhi High Court. In this case, against an order passed by a single judge of the High Court, by which he granted relief for enforcement of a foreign award, an appeal was preferred before the division bench of the High Court. The appeal was admitted but a preliminary objection was raised in regard to its maintainabmty in view of section 50 of the 1996 Act. The division bench by order dated May 8, 2007 rejected the preliminary objection holding that the appeal was maintainable. D

6Copy pinpoint6. In SLP (C) Nos.22318-22321 of 2010 a single judge of the Delhi High Court dismissed the suit filed by the petitioner and allowed the application filed by defendant nos.3-5 referring the parties to arbitration in terms of section 45 of the 1996 Act. E The petitioner's appeal before the division bench was dismissed as not maintainable. The SLP (C) Nos. 22318- 22321 of 2010 are filed under Article 136 of the Constitution challenging orders passed by both the division bench and the single judge of the High Court. F

7Copy pinpoint7. The petitioner in SLP (C) Nos.13626-13629 of 2010 is the respondent in SLP (C) No.13625 of 2010 and SLP (C) No.11945 of 2010 which have been held to be unrelated to the batch. Against the order passed by a single judge of the High G Court for enforcement of two foreign awards against it, the petitioner in SLP (C) Nos.13626-13629 of 2010, first preferred an.appeal before the division bench of the High Court, but the appeal was dismissed by the division bench as not maintainable. The present SLPs are filed challenging both the H

14 SUPREME COURT REPORTS [2011] 11 S.C.R.

A orders passed by the single judge and the division bench.

8Copy pinpoint8. At the outset Mr. C.A. Sundaram, submitted that the proper course would be to refer the matter to a larger bench of three judges. He pointed out that in Orma lmpex Pvt. Ltd. v. B Nissai A SB PTE Ltd., (1999) 2 SCC 541, the same question was earlier referred to a bench of three judges of this Court. The Court, however, did not have the occasion to decide the case because it was withdrawn following a settlement between the parties. Mr. Sundaram submitted that though the case does not survive, the issue arising in it (which is the same as in this batch of cases) continues to be alive and hence, following the referral in Orma lmpex Pvt. Ud. (which was in the form of 'Record of Proceedings' and not an order of the Court!), all these cases should be ref~red for hearing before a bench of three judges of this Court. Mr. Dushyant Dave, learned senior advocate appearing for the respondents, in some of the cases in the batch, strongly opposed Mr. Sundaram's submission and contended that there was no need to refer the cases to any larger bench.

9Copy pinpoint9. In Orma lmpex Pvt. Ltd., the Delhi High Court had taken the view that against the order passed by a single judge of the High Court under section 45, refusing to refer parties to arbitration, no further appeal would lie under section 50 of the 1996 Act. In the special leave petition filed against the order of the High Court, a bench of two judges of this Court observed that the High Court had failed to notice section 10 of the Delhi High Court Act, 1996 and clause 10 of the Letters Patent which applies to the Delhi High Court. It further observed that though . the view taken by the High Court was supported by a two judge bench decision of this Court in State of West Bengal v. Mis Gourangalal Chatterjee, (1993) 3 SCC 1, which in turn had relied upon an earlier decision of the Court in Union of India v. Mahindra Supply Co., 1962 (3) SCR 497, a contra view was taken by the Court in Vinita M. Khanolkar v. Pragna M. Pai & H Ors., (1998) 1 SCC 500. There, thus, appeared a conflict of

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LTD. [AFTAB ALAM, J.] decisions on the question. In support of the contra view, the A division bench also referred to an earlier decision by a three judge bench of this Court in National Sewing Thread Co. Ltd. v. James Chadwick and Bros. Ltd., AIR 1953 SC 357.

10Copy pinpoint10. Mr. Dave pointed out that neither the decision in Vinita 8 M. Khanolkar nor the decision in National Sewing Thread Co. Ltd. was rendered under the provisions of the Arbitration Act; the former was in the context of section 6(3) of the Specific Relief Act, 1963 and the latter under the Trade Marks Act, 1940. He further submitted that after the decisions in Vinita M. Khanolkar and the referral of Orma lmpex Pvt. Ltd., a three C judge bench of this Court in Union of India & Ors. v. Aradhana Trading Co., (2002) 4 sec 447, had the occasion to consider the same question, as arising in this batch of cases, though not under the 1996 Act but under the provisions of the Arbitration Act, 1940 (hereinafter "1940 Act"). In Aradhana Trading Co. D the Court referred to both the decisions in Vinita M. Khanolkar and in National Sewing Thread Co. Ltd.; the first it did not follow and the second it distinguished as having been rendered on a different set of provisions. Mr. Dave submitted that, thus, the very foundation on which the referral of Orma lmpex Pvt. Ltd. E was based, no longer held good.

11Copy pinpoint11. On hearing the two sides, we are of the view that in the afore-noted facts and circumstances the referral of Orma lmpex Pvt. Ltd. cannot be said to constitute a binding F precedent, especially as the case that was referred no longer survives. In any event we have heard the two sides at great length and we see no good reason why this matter should be referred to a larger bench and not decided by this Court. We, accordingly, proceed to do so. G.

12Copy pinpoint12. The question regarding the availability of an appeal under the relevant clause of the Letters Patent has engaged the attention of this Court from time to time under different circumstances and in cases arising under different Acts. We take note of some of the case.s here that were brought to our H

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A notice by the two sides.

13Copy pinpoint13. In National Sewing Thread Co. Ltd., this Court held that the judgment of a learned single judge of the Bombay High Court, on an appeal preferred under section 76 of the Trade 8 Marks Act was subject to appeal under clause 15 of the Letters Patent of that High .Court. The Court noted the material part of clause 15 of the Letters Patent of the High Court and section 76 (1) of the Trade Marks Act and observed:

"The Trade Marks Act does not provide or lay down any c procedure for the future conduct or career of that appeal in the High Court, indeed S.77 of the Act provides that the High Court can if it likes make rules in the matter. Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when c.. statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court."

(emphasis supplied)

14Copy pinpoint14. Taking support for its view from the decisions in (i) National Telephone Co. Ltd. v. Postmaster-General, (1913) AC 546, (ii) Adaikappa Chettiar v. Chandresekhara Thevar, AIR 1948 PC .12 and (iii) Secy. of State for India v. Chelfikani Rama Rao, AIR 1916 PC 21, the decision in National Sewing G Thread Co. Ltd. further observed:

"Section 76, Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as much of the appellate H jurisdiction conferred by S. 76 it has to exercise that

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LTD. [AFTAB ALAM, J.] jurisdiction in the same manner as it exercises its other A appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under Cl .15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act." B

15Copy pinpoint15. The Court held that there was nothing in the provisions of section 77 of the Trade Marks Act that would debar the High Court from hearing appeals under section 76, according to the Rules under which all other appeals are heard or from framing Rules for the exercise of that jurisdiction under section 108, C Government of India Act, 1915, for hearing those appeals by single judges or by division benches. It also negated the submission that the judgment of the learned single judge would not be subject to an appeal under clause 15 of the Letters Patent because it was not delivered pursuant to section 108, D Government of India Act.

16Copy pinpoint16. In Vinita M. Khanolkar, a bench of two judges of this Court held that notwithstanding the bar of sub-section (3), an order passed by a learned single judge of the High Court under section 6 of the Specific Relief Act would nevertheless be E subject to appeal under clause 15 of the Letters Patent of the Bombay High Court. In Vinita M. Khanolkar, this Court put the power of the High Court under the Letters Patent at the level of constitutional power of the High Court and went on to observe as follows: F

"3. Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would not get excluded unless the' statutory enactment G concerned expressly excludes appeals under letters patent. No such bar is discernible from Section 6(3) of the Act. It could not be seriously contended by learned counsel for the respondents that if clause 15 of the Letters Patent H

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A is invoked then the order would be appealable. Consequently, in oi.Jr view, on the clear language of clause 15 of the Letters Patent which is applicable to Bombay High Court, the said appeal was maintainable as the order under appeal was passed by learned Single Judge of the B High Court exercising original jurisdiction of the court. Only on that short ground the appeal is required to be allowed."

17Copy pinpoint17. As noted above, Vinita M. Khanolkar, was considered in a later three judge bench decision in Aradhana Trading Co. c One may not go so far as to say that Aradhana Trading Co. disapproved Vinita M. Khanolkar wholly but it surely took the opposite view on the question in the context of section 39 of the Arbitration Act, 1940.

18Copy pinpoint18. In Sharda Devi v. State of Bihar, (2002) 3 SCC 705, D a bench of three judges of this Court examined the question whether a Letters Patent Appeal is maintainable against the judgment and decree of a single judge of the High Court passed in an appeal preferred under section 54 of the Land Acquisition Act, 1894. A bench of two judges before which the · E case was earlier put up noticed a conflict of decision on the question. In Baljit Singh v. State of Haryana, bench of two judges of the Court had held that no Letters Patent Appeal is maintainable against the judgment of a single judge of the High Court on an appeal under section 54 of the Land Acquisition F Act, whereas in B'asant Kumar v. Union of India, (1996) 11 sec 542, a bench of three judges, without adverting to the decision in Baljit Singh, held that such an appeal is maintainabl~. The two judge bench, accordingly, referred the case for hearing before a bench of three judges. The three judge G bench affirmed the decision in Basant Kumar. It noted that the decision in Baljit Singh was based on concession made in light of an earlier decision of this Court in South Asia Industries (P) ·Ltd. v. S.B. Sarup Singh, (1965) 2 SCR 756. The decision in South Asia Industries was in a case under the Delhi Rent H Control Act, 1958. In Sharda Devi, the Court pointed out that

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LTD. [AFTAB ALAM, J.] in South Asia Industries, the -Court had examined sections 39 A and 43 of the Delhi Rent Control Act and held that a combined reading of the two sections showed that an order passed by the High Court in an appeal under section 39 was to be final. It was held that the provision of finality was intended to exclude any further appeal. This decision was, thus, based on B interpretation of sections 39 and 43 of the Delhi Rent Control Act. Section 54 of the Land Acquisition Act, has no similarity with sections 39 and 43 of the Delhi Rent Control Act. Hence, the decision in South Asia Industries had no relevance to decide the question whether a letters patent appeal is c maintainable against the judgment passed by a single judge under section 54 of the Land Acquisition Act. In regard to the Letters Patent jurisdiction of the High Court, this Court in Sharda Devi made the following observation in paragraph 9:

"9. A Letters Patent is the charter under which the High D Court is established. The powers given to a High Court under the Letters Patent are akin to the constitutional powers of a High Court. Thus when a LettersPatent grants to the High Court a power of appeal, against a judgment of a Single Judge, the right to entertain the appeal would E not get excluded unless the statutory enactment concerned excludes an appeal under the Letters Patent."

19Copy pinpoint19. Referring to section 54 of the Land Acquisition Act, the Court concluded as follows: F "14 .... Section 26 of the said Act provides that every award shall be a decree and the statement of grounds of every award shall be a judgment. By virtue of1he Letters Patent "an appeal" against the judgment of a Single Judge of the Higt) Court would lie to a Division Bench. Section 54 G of the said Act does not exclude an appeal under the Letters Patent. The word "only" occurring immediately after the non obstante clause in Section 54 refers to the forum of appeal. In other words, it provides that the appeal will H

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A be to the High Court and not ·to any other court e.g. the District Court. The term "an appeal" does not restrict it to only one appeal in the High Court. The term "an appeal" would take within its sweep even a letters patent appeal. The decision of the Division Bench rendered in a letters B patent appeal will then be subject to appeal to the Supreme Court. Read in any other manner there would be a conflict between Section 54 and the provision of a Letters Patent. It is settled law that if there is a conflict, attempt should be made to harmoniously construe the c provisions."

20Copy pinpoint20. In Subal Paul v. Malina Paul & Anr., (2003) 10 SCC 361, a bench of three judges of this· Court examined the question whether a letters patent appeal would lie· against the judgment of a single judge of a High Court on an appeal filed under section 299 of the Indian Succession Act, 1925. Arguing against the maintainability of a letters patent appeal against the judgment of the single judge it was contended that the rejection of the application for probate by the district judge did not give rise to any decree. Hence, an appeal against such an order would be one under section 104 of the Civil Procedure Code and a further appeal would, therefore, be barred under sub- section (2) of section 104. This Court did not accept the submission. It held that the appeal against an order of the district judge would be under section 299 of the-Indian F Succession Act. Section 104 of the Code simply recognizes appeals provided under special statutes; it does not create a right of appeal as such. Consequently, it does not bar any further appeal also. As regards the nature of an appeal under the Letters Patent, the decision in Subal Paul in paragraphs 21 G and 22, observed as follows:

"21. If a right of appeal is provided for under the Act, the limitation thereof must also be provided therein. A right of appeal which is provided under the Letters Patent cannot be said to be restricted. Limitation of a right of appeal, in H

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LTD. [AFTAB ALAM, J.] the absence of any provision in a statute cannot be readily A inferred. It is now well-settled that the appellate jurisdiction of a superior court is not tak~n as excluded simply because the subordinate court exercises its special jurisdiction. In G.P. Singh's Principles of Statutory Interpretation, it is stated: s "The appellate and revisional jurisdiction of superior courts is not taken as excluded simply because the subordinate court exercises a special jurisdiction. The reason is that when a special Act on matters governed by that Act confers a jurisdiction to an C established court, as distinguished from a persona designata, without any words of limitation, then, the o~dinary incident of procedure of that court including any general right of appeal or revision against its decision is attracted." D

22. But an exception to the aforementioned rule is on matters where the special Act sets out a self-contained code, the applicability of the general law procedure would be impliedly excluded. [See Upadhyaya Hargovind E · Devshanker v. Dhirendrasinh Virbhadrasinhji Solanki (1988) 2 sec 1r (emphasis supplied)

21Copy pinpoint21. In paragraph 32 of the judgment, this Court further F observed as follows:

"32. While determining the question as regards clause 15 of the Letters Patent, the court is required to see as to whether the order so.ught to be appealed against is a G judgment within the meaning thereof or not. Once it is held that irrespective of the nature of the order, meaning thereby whether int,erlocutory or final, a judgment has been rendered, clause 15 of the Letters Patent would be attracted." H

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22Copy pinpoint22. In P.S. Sathappan v. Andhra Bank Ltd. & Ors., (2004) 11 sec 672, a constitution bench of this Court once again extensively considered the nature of. the Letters Patent jurisdiction of the High Court, and the circumstances in which it would be available and those under which it would be ousted. B The question that was referred to the Constitution Bench was: what would be "the effect of the provisions of section 104(2) of the Code of Civil Procedure, 1908 (hereinafter "CPC") vis- a-vis clause 15 of the Letters Patent (of the Madras High Court)"? An application for setting aside the court auction-sale c was dismissed by the execution court. An appeal against the order came to the High Court and it was dismissed by a single judge. Against the order of .the single judge, a letters patent appeal was filed. The question of maintainability of the appeal was examined by a full bench of the High Court and the intra- D court appeal to the division bench was held to be not maintairiable in view of the provisions of section 104(2) of CPC. A Constitution Bench of this Court, however, reversed the decision of the full bench of the High Court and by a majority of 3:2 held that the letters patent appeal was perfectly maintainable. E

23Copy pinpoint23. P.S. Sathappan is actually an authority on the interplay of section 104 of the Code of Civil Procedure and the Letters Patent jurisdiction of the High Court. The majority judgment went into the history of the matter and pointed out that under the Civil Procedure Codes of 1877 and 1882 there was a divergerice of opinion among the different High Courts on the point whether the finality. attached to orders passed under section 588 (corresponding to sectioo. 104 of the present Code) precluded any further appeals, including a letters patent appeal. The question, then, came up before the Privy Council in the case of Hurrish Chunder Chowdry v. Kali Sundari Debia, ILR (1882) 9 Cal. 482 ( PC). But the decision of the Privy Council, rather than settling the issue gave rise to further conflicting decisions by different High Courts in the country. The H

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LTD. [AFTAB ALAM. J.] Bombay. Calcutta and Madras High Courts held that section A 588 did not take away the right of appeal given under the Letters Patent. On the other hand, the Allahabad High Court took a different view and held that a letters patent appeal was barred under section 588 of the Code. In view of this conflict of views. the legislature stepped in and amended the law. It introduced section 4 and section 104 in the Code. Having, thus. put the controversy in the historical perspective, the Court re{erred to sections 4 and 104 of the Code and made the following observation in paragraph 6 of the judgment:

"To be immediately noted that now the legislature provides that the provision of this Code will not affect or limit special law unless specifically excluded. The legislature also simultaneously saves, in section 104(1), appeals under "any law for the time being in force". These would include letters patent appeals." D

(emphasis supplied)

24Copy pinpoint24. The above is really the kernel of the decision in P. S. Sathappan and the rest of the judgment is only an elucidation of this point.

25Copy pinpoint25. In P. S. Sathappan the constitution bench considered in some detail the 1962 decision by a bench of four judges of the Court in Mohindra Supply. Co. (supra) in which the legislative history of section 104 of the Code was traced out in detail and it was shown that by virtue of the saving clause in section 4 and the express language of section 104 that saved an appeal as provided by any other law for the time being in force, a letters patent appeal was not hit by the bar of sub- section (2) of section 104 of the Code. [Mohindra Supply Co., G however, was a case under section 39 of the 1940 Act, which did not contain any provision similar to section 4 of the Code and hence, in that case the Court held that the finality attached by sub-section (2) to an order passed under sub-section (1) of section 39 barred any further appeal, including a letters patent H

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A appeal.]

26Copy pinpoint26. In P.S. Sathappan, on a consideration of a number of earlier decisions, the Constitution Bench concluded that till 1996, the unanimous view of all courts was that section 104(1) B CPC specifically saved letters patent appeals and the bar under section 104(2) did not apply to letters patent appeals. Thereafter, there were two decisions in deviation from the accepted judicial view, one by a bench of two judges of this Court in Resham Singh Pyara Singh v. Abdul Sattar, (1996) c 1 SCC 49 and the other by a bench of three judges of this Court in New Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corpn., (1997) 3 SCC 462. P.S. Sathappan, overruled both these decisions and declared that Resham Singh Pyara Singh and New Kenilworth Hotel (P) Ltd. laid down wrong law. It further 0 pointed out that even after the aforementioned two decisions this Court had continued to hold that a Letters Patent Appeal is not affected by the bar of section 104(2) CPC. In this connection, it referred to Vinita M. Khanolkar (supra), under section 6 of the Specific Relief Act, Chandra Kanta Sinha v. Oriental Insurance Co. Ltd. & Ors., (2001) 6 SCC 158, under section 140 of the Motor Vehicles Act, 1988, Sharda Devi (supra), under section 54 of the Land Acquisition Act and Subal Paul (supra), under section 299 of the Indian Succession Act, 1925 and came to the conclusion that the consensus of judicial opinion has been that section 104(1) CPC expressly saves the letters patent appeal and the bar under section 104(2) CPC does not apply to letters patent appeals. In paragraph 22 of the judgment, the Court observed as follows:

"22 .... 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 in an appropriate legislation. The express provision need not refer to or use the word "letters patent" but if on a reading of the provision it is clear that all further H appeal_s are barred then even a letters patent appeal would

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LTD. [AFTAB ALAM, J.]

be barred." A

27Copy pinpoint27. Further, analysing the two sub-sections of section 104(2) along with section 4 CPC, this Court in paragraph 30 of the judgment observed as follows:

"30 .... Section 104 must be read as a whole and B harmoniously. If the intention was to exclude what is specifically saved in sub-section (1 ), then there had to be • a specific exclusion. A general exclusion of this nature would not be sufficient. We are not saying that a general exclusion would never oust a letters patent appeal. C However, when section 104(1) specifically saves a letters patent appeal then the only way such an appeal could be excluded is by express mention in section 104(2) that a letters patent appeal is also prohibited ......" D

28Copy pinpoint28. Mr. Sundaram heavily relied upon this decision.

29Copy pinpoint29. The decisions noticed so far lay down certain oroad principles that may be stated as follows:

1. Normally, once an appeal reaches the High Court E it has to be determined according to the rules of practice and procedure of the High Court and in accordance with the provisions of the charter under which the High Court is constituted and which confers on it power in respect to the method and manner of exercising that power.

2. When a statute merely directs that an appeal shall lie to a court already established then that appeal must be regulated by the practice and procedure of that court.

3. The High Court derives its intra-court appeal jurisdiction under the charter by which it was established and its powers under the Letters Patent were recognized and saved by section 108 H

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A 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 B by necessary intendment by some special statute.

4. If the pronouncement of the single judge qualifies as a "judgment", in the absence of any bar creatied by a statute either expressly or by necessary implication, it would be subject to appeal under the c relevant clause of the Letters Patent of the High Court.

5. Since section 104(1) CPC specifically saves the letters patent appeal it could only be excluded by D 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 ).

E 6. 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.

F 7. 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 laiw procedure would be impliedly excluded. The express provision need not refer to or use the word G "letters patent" but if on a reading of the provision it is clear that all further appeals are barred thEm even a letters patent appeal would be barred.

30Copy pinpoint30. These general principles are culled out from the H decisions of this Court rendered under section 104 of the CPC

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LTD. [AFTAB ALAM, J.]

and various other Acts, as noted above. But there is another set of decisions of this Court on the question under consideration rendered in the context of section 39 of the 1940 Act. Section 39 of the erstwhile Act contained the provision of appeal and provided as follows: 8 "39. Appealable orders.-(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order:

An order - c (i) superseding an arbitration;

(ii) on an award stated in the form of a special case;

(iii) modifying or correcting an award; D

(iv) filing or refusing to file an arbitration agreement;

(v) staying or refusing to stay legal proceedings where there is an arbitration agreement; E (vi) setting aside or refusing to set aside an award:

PROVIDED THAT the provisions of this section shall not · apply to any order passed by a Small Calise Court. F (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."

[Insofar as relevant for the present, section 37 of the 1996 G Act, is very similar to section 39 of the previous Act as quoted above.]

31Copy pinpoint31. In Mohindra Supply Co., a bench of four judges of this Court held that a letters patent appeal against an order passed H

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A by a single judge of the High Court on an appeal under section 39(1) of the 1940 Act was barred in terms of sub-section (2) of section 39. This decision is based on the bar against furthEir appeals as contained in sub-section (2) of section 39 of the 1940 Act and, therefore, it may not have a direct bearing on the question presently under consideration.

32Copy pinpoint32. More to the point are two later decisions. In Mis Gourangalal Chatterjee, a bench of two judges of this Court held that an order, against which no appeal would lie under section 39(1) of the 1940 Act, could not be taken in appeal before the division bench of the High Court under its Letters Patent. The same view was reaffirmed by a bench of three judges of this Court in Aradhana Trading Co.

33Copy pinpoint33. In regard to these two decisions, Mr. Sundaram took the position that both Mis Gourangalal Chatterjee and Aradhana Trading Co. were rendered on section 39 of the 1940 Act, the equivalent of which is section 37 of the 1996 Act. In view of the two decisions, he conceded that in the event an order was notappealable under section 37(1) of the 1996 Act, E it would not be subject to appeal under the ·Letters Patent of the High Court. He, however, referred to section 50 of the 1996 Act, which is as follows:

"50. Appealable orders.-(1) An appeal shall lie from the order refusing to- F (a) refer the parties to arbitration under section 45;

(b) enforce a foreign award under section 48, to the court authorised by law to hear appeals from such G 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." H

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LTD. [AFTAB ALAM, J.]

34Copy pinpoint34. Mr. Sundaram submitted that section 50, unlike section·· A 39 of the previous Act and section 37 of the current Act does not-have the words "(and from no others)" and that, according to him, made all the difference. He contended that the omission of the words in parenthesis was significant and it clearly pointed out that unlike section 37, even though an order was not appealable under section 50, it would be subject to appeal under the Letters Patent of the High Court. At any event the decisions rendered under section 39 of the 1940 would have no application in a case relating to section 50 of the 1996 Act.

35Copy pinpoint35. Mr. Dave, in reply submitted that the words "(and from no other)" _occurring in section 39 of the 1940 Act and section 37 of the 1996 Act were actually superfluous and seen, thus, .there would be no material difference between the provisions of section 39 of the 1940 Act or section 37 of the 1996 Act and section 50 of the 1996 Act and all the decisions rendered on section 39 of the 1940 Act will apply with full force to cases arising under section 50 of the 1996 Act.

36Copy pinpoint36. The use of round brackets for putting words in parenthesis is not very common in legislation and this reminds us of the painful lament by Meredith, J. of the Patna High Court, who in 1948 dealing with a case said that "the 1940 Act contains examples of bad drafting which it would be hard to beat".

37Copy pinpoint37. According to the New Oxford Dictionary of English. F 1998 edition, brackets are used to enclose words or figures so as to separate them from the context. The Oxford Advanced Learner's Dictionary, Seventh edition defines "bracket" to mean "either of a pair of marks, ( ) placed around .extra information in a piece of writing or part of a problem in G mathematics". The New Oxford Dictionary of English, 1998 edition gives the meaning and use of parenthesis as:

"Parenthesis-noun (pl. parentheses) a word, clause, or sentence inserted as an explanation or afterthought into H

30 SUPREME COURT REPORTS [2011) 11 S.C.I~.

A a passage which is grammatically complete without it, in writing usually marked off by brackets, dashes, or commas.

- (usu. Parentheses) a pair of round brackets ( ) used to 8 include such a word, clause, or sentence."

38Copy pinpoint38. The Oxford Advanced Learner's Dictionary, Seventh edition, defines the meaning of parenthesis as:

"a word, sentence, etc. that is added to a speech or piece c of writing, especially in order to give extra information. In writing, it is separated from rest of the text using brackets, commas or DASHES."

39Copy pinpoint39. The Complete Plain Words by Sir Ernest Gowers, D 1986 revised edition by Sidney Greenbaum and Janet Whitcut, gives the purpose of parenthesis as follows:

"Parenthesis

The purpose of a parenthesis is ordinarily to insert an illustration, explanation, definition, or additional piece of information of any sort into a sentence that is logically and grammatically complete without it. A parenthesis may be marked off by commas, dashes or brackets. The degree of interruption of the main sentence may vary from the almost imperceptible one of explanatory words in apposition, to the violent one of a separate sentence complete in itself."

40Copy pinpoint40. The Merriam Webster Online Dictionary defines parenthesis as follows: G "1 a : an amplifying or explanatory word, phrase, 1:>r sentence inserted in a passage from which it is usually set off by punctuation b : a remark or passage that departs from the theme of a discourse : digression H

p. 31 Copy page pinpoint

LTD. [AFTAB ALAM, J.] 2: interlude, interval A

3: one or both of the curved marks ( ) used in writing and printing to enclose a parenthetical expression or to group a symbolic unit in a logical or mathematical expression"

41Copy pinpoint41. The Law Lexicon, The Encyclopaedic Law Dictionary B by P. Ramanatha Aiyar, 2000 edition, defines parenthesis as under:

"Parenthesis. a parenthesis is defined to be an explanatory or qualifying clause, sentence, or paragraph, c inserted in another sentence, or in course of a longer passage, without being grammatically connected with it. (Cent. Dist.)

PARENTHESIS is used to limit, qualify or restrict the meaning of the sentence with which it is connected, and it may be designated by the use of commas, or by a dash, or by curved lines or brackets [53 Fed.81 (83); 3C, CA 440)."

42Copy pinpoint42. Having regard to the grammatical use of brackets or parentheses, if the words, "(and from no others)" occurring in section 39 of the 1940 Act or section 37 of the 1996 Act are viewed as 'an explanation or afterthought' or extra information separate from the main context, then, there may be some substance in Mr. Dave's submission that the words in parentheses are surplusage and in essence the provisions of section 39 of the 1940 Act or section 37 of the 1996 Act are the same as section 50 of the 1996 Act. Section 39· of the 1940 Act says no more and no less than what is stipulated in section 50 of the 1996 Act. G

43Copy pinpoint43. But there may be a different reason to contend that section 39 of the 1940 Act or its equivalent section 37 ofthe

1996. Act are fundamentally different from section 50 of the 1996 Act and hence, the decisions rendered under section 39 H

32 SUPREME COURT REPORTS [2011] 11 S.C.R

A of the 1940 Act may not have any application to the facts arising under section 50 of the 1996 Act.

44Copy pinpoint44. But for that we need to take a look at the basic scheme of the 1996 Act and its relevant provisions. Before the B coming into force of the Arbitration and Conciliation Act, 1996 with effect from August 16, 1996, the law relating to domestic arbitration was contained in the Arbitration Act, 1940, which in turn was brought in place of the Arbitration Act, 1899. Apart from the Arbitration Act 1940, there were two other enactments of the same genre. One called the Arbitration (Protocol and C Convention) Act, 1937 (for execution of the Geneva Convention Awards) and the other called the Foreign Awards (Recognition and Enforcement) Act, 1961 (for enforcement of the New York Convention awards).

45Copy pinpoint45. The aforesaid three Acts were replaced by the Arbitration and Conciliation Act, 1996, which is based on the United Nations Commission on International Trade Law (UNCITRAL) Model and is broadly compatible with the "Rules of Arbitration of the International Chamber of Commerce". The E Arbitration and Conciliation Act, 1996 that has repealed the Arbitration Act, 1940 and also the Acts of 1937 and 1Sl61, consolidates and amends the law relating to domestic arbitration, internatfonal commercial arbitration, enforcement of foreign arbitral awards and defines the law relatins1 to F conciliation and provides for matters connected therewith and incidental thereto taking into account the UNCITRAL MODEL law and Rules.

46Copy pinpoint46. The Statement of Objects and Reasons of the Arbitration and Conciliation Act, 1996 reads as under: G "Statement of Objects and Reasons

The law of arbitration in India is at present substantially contained in three enactments, namely, The Arbitration Act, 1940, The Arbitration (Protocol and H

p. 33 Copy page pinpoint

LTD. [AFTAB ALAM, J.] Convention) Act, 1937 and The Foreign Awards A (R,ecognition 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 B proposed 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 c 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 D Law (UNCITRAL) adopted in 1985 the Model Law on International Commercial Arbitration. The General Assernbly 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 conciliation of different legal systems of the world and thus contain provisions which are designed for universal application.

3. Though the UNCITRAL Model Law and Rules are intended to deal with international commercial arbitration H

34 SUPREME COURT REPORTS [2011] 11 S.C.R.

A and conciliation, they could, with appropriate modifications, serve as a model for legislation on domestic arbitration and conciliation. The present Bill seeks to consolidate and amend the law relating to domestic arbitration, international commercial arbitration, B enforcement of foreign arbitral awards and to define the law relating to conciliation, taking into account the said UNCITRAL Model Law and Rules.

4. The main objectives of the Bill are as under:- c (i) to comprehensively cover international and commercial arbitration and conciliation as also domestic arbitration and conciliation;

(ii) to make provision for an arbitral procedure which D is fair, efficient and capable of meeting the ne!eds of the specific arbitration;

(iii) to provide that the arbitral tribunal.gives reasons for its arbitral award; E (iv) to ensure that the arbitral tribunal remains within the limits of its jurisdiction;

(v) to minimise the supervisory role of courts in the arbitral process; F (vi) to permit an arbitral tribunal to use mediation, conciliation or other procedures during the arbitral proceedings to encourage settlement of disputes;

(vii) to provide that every final arbifral awa·rd is G enforced in the same manner as if if were a decree of the court;

(viii) to provide that a settlement agreement reached by the parties as a result of conciliation proceedings will have the same status and effect as an arbitral H

p. 35 Copy page pinpoint

LTD. [AFTAB ALAM, J.] award on agreed terms on the substance of the A dispute rendered by an arbitral tribunal; and

(ix) to provide that, for purposes of enforcement of foreign awards, every arbitral award made in a country to which one of the two international Conventions relating to foreign arbitral awards to 8 which India is a party applies, will be treated as a foreign award.

5. The Bill seeks to achieve the above objects."

(emphasis supplied) c

47Copy pinpoint47. The Preamble of the Arbitration and Conciliation Act, 1996 is as follows:

"PREAMBLE D WHEREAS the United Nations Commission on International Trade Law (UNCITRAL) has adopted the UNCITRAL Model Law on International Commercial Arbitration in 1985; E AND WHEREAS the Genera,I 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 F arbitration practice;

AND WHEREAS the UNCITRAL has adopted the UNCITRAL Conciliation Rules in 1980;

AND WHEREAS the General Assembly of the G United Nations has recommended the use of the said Rules in cases where a dispute arises in the context of international commercial relations and the parties seek an amicable settlement of that dispute by recourse to

36 SUPREME COURT REPORTS [2011) 11 S.C.R.

A conciliation;

AND WHEREAS the said Model Law and 'Rules make significant contribution to the establishment of a unified legal framework for the fair and efficient settlement B of disputes arising in international commercial relations;

AND WHEREAS it is expedient to make law respecting arbitration and conciliation, taking into account the aforesaid Model Law and Rules;"

c 48. The new Act is a loosely integrated version of the Arbitration Act, 1940, Arbitration (Protocol and Convention) Act, 1937 and Foreign Awards (Recognition and Enforcement) Act,

1961. It actually consolidates amends and puts together three different enactments. But having regard to the difference in the object and purpose and the nature of these three enactments, the provisions relating thereto are kept separately. A mere glance at the 1996 Act is sufficient to show that under its scheme the provisions relating to the three enactments are kept separately from each other. The 1996 Act is divided into four parts and it has three schedules at its end. Part I has ten chapters that contain provisions governing domestic arbitration and international commercial arbitration. Part II has two chapters; Chapter I contains provisions relating to the New York Convention Awards and Chapter II contains provisions relating . to the Geneva Convention Awards. Part IH of the Act has provisions concerning conciliation .. /fJart IV has the supplementary provisions such as the power of the High Court to make rules \(section 82), provision for removal of difficulties (section 83), and the power to make rules (section 84). At the end there are two repeal and saving sections. Section 85 G repeals the three enactments \ referred to above, subject to the appropriate saving clause and section 86 repeals Ordinance 27 of 1996, the precursor of the Act, subject to the appropriate saving clause. Of the three schedules, the first is related to Part 11, Chapter I, i.e., the New York Convention Awards and the H ..

p. 37 Copy page pinpoint

LTD. [AFTAB ALAM, J.)

secon~ and the third to Chapter 11, i.e., the Geneva Convention A Awards.

49Copy pinpoint49. There is a certain similarity between the provisions of Chapters I and II of Part II but Part I of the Act is vastly different from Chapters I and II of Part II of the Act. This is quite understandable too since Part II deals only with enforcement of foreign awards (Chapter I, of New York Convention Awards and Chapter 11, of Geneva Convention Awards) while Part I of the Act deals with the whole gamut of law concerning domestic arbitration and international commercial arbitration. It has, therefore, a very different and much larger framework than the two chapt~rs in Part II of the Act.

50Copy pinpoint50. Part I has ten chapters. Chapter I begins with definition clauses in section 2 that defines, amongst other terms and expressions, "arbitration", "arbitration agreement", "arbitral award", etc. Chapter I also contains some "General Provisions" (sections 3-6). Chapter II contains provisions relating to "Arbitration Agreement" (sections 7-9). Chapter Ill contains provisions relating to "Composition of Arbitral Tribunal" (sections 10-15). Chapter IV deals with the "Jurisdiction of E Arbitral Tribunals" (sections 16-17). Chapter V lays down provisions concerning "Conduct of Arbitral Proceedings" (sections 18-27). Chapter VI deals with "Making of Arbitral Award and Termination of Proceedings" (sections 28-33). Chapter VII has only one section, i.e., section 34 that provides F . "Recourse against Arbitral Award". Chapter VIII deals with "Finality and Enforcement of Arbitral Awards" (sections 35-36). Chapter IX provides for "Appeals" (section 37 which is akin to section 39 of the 1940 Act). Chapter X contains the "Miscellaneous" provisions (sections 38-43). G

51Copy pinpoint51. It is also evident that Part I and Part II of the Act are quite separate and contain provisions that act independently in their respective fields. The opening words of section 2, i.e. the definition clause in Part I, make it clear that meanings H

38 SUPREME COURT REPORTS [2011] 11 S.C.R.

A assigned to the terms and expressions defined in that section are for the purpose of that part alone. Section 4 which deals with waiver of right to object is also specific to Part I of the Act. Section 5 dealing with extent of judicial intervention 1s also specific to Part I of the Act. Section 7 that defines "arbitration B agreement" in considerable detail also confines the meaning of the term to Part I of the Act alone. Section 8 deals with the power of a judicial authority to refer parties to arbitration where there is an arbitration agreement and this provision too is relatable to Part I alone (corresponding provisions are c independently made in sections 45 and 54 of Chapter I and II. respectively of Part II). The other provisions in Part I by their very nature shall have no application insofar as the two chapters of Part II are concerned.

52Copy pinpoint52. Once it is seen that Part I and Part II of the Act are quite different in their object and purpose and the respective schemes, it naturally follows that section 37 in Part I (analogous to section 39 of the 1940 Act) is not comparable to section 50 in Part II of the Act. This is not because, as Mr. Sundaram contends section 37 has the words in parentheses "and from no others" which are not to be found in section 50 of the Act. Section 37 and section 50 are not comparable because they belong to two different statutory schemes. Section 37 containing the provision of appeal is part of a much larger framework that, as seen above, has provisions for the complete range of law concerning domestic arbitration and international commercial arbitration. Section 50 on the other hand contains the provision of appeal in a much limited framework, concerned only with the enforcement of New York Convention awards. In one sense, the two sections, though each containing the appellate provision belong to different statutes.

53Copy pinpoint53. Having come to this conclusion, it would appear that the decisions rendered by the Court on the interplay between section 39 of the 1940 Act and the Letters Patent jurisdiction of the High Court shall have no application for deciding the H

p. 39 Copy page pinpoint

LTD. [AFTAB ALAM, J.] question in hand. But that would be only a superficial view and the decisions rendered under section 39 of the 1940 Act may ·still give the answer to the question under consideration for a very basic and fundamental reason.

54Copy pinpoint54. However, before going into that it will be useful to take another look at the provisions of Chapter I of Part II of the Act. We have so far seen the provisions of Chapter I of Part II of the Act in comparison with those of Part I of the 1996 Act. It would also be relevant to examine it in comparison with the provisions of its precursor, the Foreign Awards, Recognition C and Enforcement Act, 1961 and to see how far the earlier Act is consolidated, amended and harmonised and designed for universal application.

55Copy pinpoint55. The provisions of Chapter I of Part II of the 1996 Act along with the provisions of the Foreign Awards, Recognition D and Enforcement Act, 1961, insofar as relevant for the present are placed below in a tabular form:

THE FOREIGN AWARDS PART II (RECOGNITION AND ENFORCEMENT OF E ENFORCEMENT) ACT, CERTAIN FOREIGN 1961 AWARDS CHAPTER I NEW YORK CONVENTION F AWARDS

2. Definition.-ln this Act, 44. Definition.-ln this unless the context otherwise Chapter, unless the context requires, "foreign award" otherwise requires, "foreign G means an award . on award" means an arbitral differences between persons award on differences· between arising out of legal persons arising out of legal relationships, whether relationships, whether contractual or not, considered H

40 SUPREME COURT REPORTS [2011] 11 S.C.R.

A contractual or not, as commercial under the law considered as commercial in force in India, made on or under the law in force in India, after the 11th day of made on or after the 11th day October, 1960 - of October, 1960 - 8 (a) in pursuance of an (a) in pursuance of an agreement in writing for agreement in writing for arbitration to which the arbitration to which the Convention set forth in Convention set forth in the Schedule applies, the First Schedule c and applies, and (b) in one of such territories (b) in one of such territories as the Central as the Central Government being Government, being satisfied that reciprocal satisfied that reciprocal provisions have been provisions have been made, may, by made may, by notification in the Official notification in the Official Gazette, declare to be Gazette, declare to be territories to which the territories to which the said Convention said Convention applies. applies.

3. Stay of proceedings in respect of matters to be referred to arbitration.- Notwithstanding anything contained in the Arbitration Act, 1940 (10 of 1940), or in the Code of Civil Procedure, G 1908 (5of1908), if any party to an agreement to which 45. Power of judicial Article II of the Convention set authority to refer parties to forth in the Schedule applies, arbitration.- on any person claiming Notwithstanding anything thrbugh or under him contained in Part I or in the H I

p. 41 Copy page pinpoint

LTD. [AFTAB ALAM, J.] •

commences any legal Code of Civil Procedure, A proceedings in any court 1908 (5 of 1908), a judicial against any other party to the authority, when seized of an agreement or any person action in a matter in respect claiming through or under him of which the parties have in respect of any matter made an agreement B agreed to be referred to referred to in section 44, arbitration in such shall, at the request of one of agreement, any party to such the parties or any person legal proceedings may, at claiming through or under any time after appearance him, refer the parties to c and before filing a written arbitration, unless it finds statement or taking any other that the said agreement is step in the proceedings, null and void, inoperative or apply to the court to stay the incapable of bring proceedings and the court, performed. D unless satisfied that the agreement is null and void, inoperative or incapable of being performed or that there is not, in fact, any dispute E between the parties with

46. When foreign award regard to the matter agreed binding.-Any foreign award to be referred, shall make an which would be enforceable order staying the under this Chapter shall be proceedings. treated as binding for all F

4. Effect of foreign purposes on the persons as awards.-(1) A foreign between whom it was made, award shall, subject to the and may accordingly be provisions of this Act, be relied on by any of those enforceable in India as if it persons by way of defence, G were an award made on a set off or otherwise in any matter referred to arbitration legal proceedings in India in India. and any references in this Chapter to enforcing a (2) Any foreign award which foreign award shall be H

42 SUPREME COURT REPORTS [2011] 11 S.C.R.

A would be enforceable under construed as inclu_ding this Act shall be treated as references to relying on an binding for all purposes on award the persons as between whom it was made, and L may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in India and 47. Evidence.-(1) The party applying for the enforcement c any references in this Act to of a foreign award shall, at the enforcing a foreign award shall be construed as time of the application, including references to produce before the court - relying on an award. D (a) the original award or a

5. Filing of foreign award in copy thereof, duly court.-(1) Any person authenticated in the interested in a foreign award manner required by the may apply to any court law of the country in which having jurisdiction over the it was made; subject-matter of the award that the award be filed in (b) the original agreement for court. arbitration or a duly certified copy thereof; and (2) The application shall be in writing and shall be (c) such evidence as may be numbered and registered as necessary to prove that a suit between the applicant the award is a foreign as plaintiff and the other award. parties as defendants. (3) The court shall direct (2) If the award or agreement notice to be given to the to be produced under sub- parties to the arbitration, section (1) is in a foreign other than the applicant, language, the party seeking to requiring them to show enforce the award shall cause, within a time H

p. 43 Copy page pinpoint

LTD. [AFTAB ALAM, J.]

specified why the award produce a translation into should not be filed. English certified as correct by a diplomatic or consular

6. Enforcement of foreign agent of the country to which award.-(1) Where the court that party belongs or certified 1s satisfied that the foreign as correct in such other award is enforceable under manner as may be sufficient this Act. the court shall order according to the law in force the award to be filed and in India. shall proceed to pronounce judgment according to the award. Explanat1on.-ln this c section and all the following (2) Upon the judgment so sections of this Chapter, pronounced a decree shall "Court" means the principal follow, and no appeal shall Civil Court of original lie. from such decree except jurisdiction in a district, and in so far as the decree is in includes the High Court in excess of or not in exercise of its ordinary accordance with the award. original civil jurisdiction,

7. Conditions for having jurisdiction over the enforcement of foreign subject-matter of the award awards.- (1) A foreign if the same had been the award may not be enforced subject-matter of a suit, but under this Act- does not include any civil court of a grade inferior to (a) if the party against whom such principal Givil Court, or it is sought to enforce the any Court of Small Causes. award proves to the court dealing with the case that- (i) the parties to the 48. Conditions for agreement were enforcement of foreign under the law awards.-(1) Enforcement of applicable to them, a foreign award may be under some refused, at the request of the incapacity, or the party against whom it Is H

44 SUPREME COURT REPORTS [2011] 11 S.C.R.

A said agreement is invoked, only if that party not valid under the furnishes to the court proof law to which the that- parties have (a) the parties to the subjected it, or agreement referred to in B failing any indication section 44 were, under the thereon, under the law applicable to them, law of the country under some incapacity or where the award the said agreement is not was made; or valid under the law to c (ii) the party was not which the parties have given proper notice subjected it or, failing any of the appointment indication thereon, under of the arbitrator or of the law of the country the arbitration where the award was proceedings or was made; or otherwise unable to (b) the party against whom the present his case; or award is invoked was not (iii) the award deals with given proper notice of the questions not appointment of the referred or contains arbitrator or of the arbitral decisions on proceedings or was matters beyond the otherwise unable to scope of the present his case; or agreement: (c) the award deals with a F Provided that if the difference not decisions on contemplated by or not matters submitted falling within the terms 1of to arbitration can be the submission to separated from arbitration, or it contains G those not submitted, decisions on matters that part of the beyond the scope of the award which submission to arbitration: contains decisions on matters Provided that, if the submitted to decisions on matter H

p. 45 Copy page pinpoint

LTD. [AFTAB ALAM, J.)

arbitration may be submitted to arbitration enforced; or can be separated from (iv) the composition of those not so submitted, the arbitral authority that part of the award or the arbitral which contains procedure was not in decisions on matters accordance with the submitted to arbitration agreement of the may be enforced; .or parties or failing such (d) the composition of the agreement, was not arbitral authority or the in accordance with arbitral procedure was c the law of the country not in accordance with where the arbitration the agreement of the took place; or parties, or, failing such (v) the award has not yet agreement, was not in become binding on accordance with the law the parties or has of the country where the been set aside or arbitration took place; or suspended by a (e) the award has not yet competent authority become binding on the of the country in parties, or has been set which, or under the aside or suspended by law of which, that a competent authority of award was made; or the country in which, or under the law of which, that award was made. F (b) if the court dealing with the case is satisfied (2) Enforcement of an that- arbitral award may also be refused if the Court finds (i) the subject-matter of that- the difference is not G capable of (a) the subject-matter of the settlement by difference is not arbitration under the capable of settlement law of India; or by arbitration under the lai,,v of India; or (ii) the enforcement of H

46 SUPREME COURT REPORTS [2011] 11 S.C.R.

A tne awara w111 oe (b) the enforcement of the contrary to public award would be contrary policy. to the public policy of India. (2) If the court before which Explanation .-Without B prejudice to the generality of a foreign award is sought to be relied upon is satisfied clause (b) of this section, it is that an application for the hereby declared, for the setting aside or suspension avoidance of any doubt, that of the award has been made an award is in conflict with to a competent authority the public policy of India if referred to in sub-clause (v) the making of the award was of clause (a) of sub-section induced or affected by fraud (1), the court may, if it deems or corruption. proper, adjourn the decision on the enforcement of the (3) If an application for the award and may also, on the setting aside or suspension application of the party of the award has been claiming enforcement of the made to a competent award, order the other party authority referred to in clause to furnish suitable security. (e) of sub-section (1) the

8. Evidence.-(1) The party Court may, if it considers it applying for the enforcement proper, adjourn the decision of a foreign award shall, at on the enforcement of the the time of the application, award and may also, on the application of the party produce- claiming enforcement of the (a) the original award or a award, order the other party copy thereof, duly to give suitable security. authenticated in the manner required by the law of the country in 49. Enforcement of foreign which it was made; awards.-Where the Court (b) the original agreement is satisfied that the foreign for arbitration or. a duly award is enforceable under certified copy thereof;

p. 47 Copy page pinpoint

LTD. [AFTAB ALAM, J.)

and this Chapter, the award shall A (c) such evidence as may · be deemed to be a decree of be necessary to prove that Court. that the award is a foreign award.

50. Appealable orders.-(1) B (2) If the award or agreement An appeal shall lie from the requiring to be produced ,order refusing to - under sub-section (1) is in a (a) refer the parties to foreign language, the party arbitration under section seeking to enforce the award shall produce a 45; c translation into English (b) enforce a foreign award certified as correct by a under section 48, diplomatic or consular agent to the court authorised by law of the country to which that to hear appeals from such party belongs or certified as order. D correct in such other manner as may be sufficient according to the law in force in India.

9. Saving.-Nothing in this (2) No second appeal shall E Act shall- lie from an order passed in appeal under this section, but (a) prejudice any rights nothing in this section shall which any person would affect or take away any right to have had of enforcing in appeal to the Supreme Court. F India of any award or of availing himself. in India of any award if this Act 51. Saving.-Nothing in this had not been passed; or Chapter shall prejudice any (b) apply fo any award rights which any person would G made on an arbitration have had of enforcing in India agreement governed by of any award or of availing the law of India. himself in India of any award if this Chapter had not been

10. Repeal.-The.Arbitration enacted. H

48 SUPREME COURT REPORTS [2011) 11 S.C.R.

A (Protocol and Convention) 52. Chapter II not to apply.- Act, 1937 (6 of 1937), shall Chapter II of this Part shall not cease to have effect in apply in relation to foreign relation to foreign awards to awards to which this Chapter which this Act applies. applies. B

11. Rule making power of the High Court.-The High Court may make rules consistent with this Act as to- e (a) the filing of foreign awards and all proceedings consequent thereon or incidental thereto; D (b) the evidence which must be furnished by a party seeking to enforce a foreign award under this Act; and E (c) generally, all proceedings in court under this Act.

56Copy pinpoint56. A comparison of the two sets of provisions would show that section 44, the definition clause in the 1996 Act is F a verbatim reproduction of section 2 of the previous Act (but for the words "chapter" in place of "Act", "first schedule" in place of "schedule" and the addition of the word "arbitral" before the word "award" in section 44). Section 45 corresponds to section 3 of the previous Act. Section 46 is a verbatim reproduction of section 4(2) except for the substitution of the word "chapter" for "Act". Section 47 is almost a reproduction of section 8 except for the addition of the words "before the court" "in sub-section (1)" and an explanation as to what is meant by "court" in that section. Section 48 corresponds to section 7; section 49 to section 6(1) and section 50 to section

p. 49 Copy page pinpoint

LTD. [AFTAB ALAM, J.] 6(2). Apart from the fact that the provisions are arranged in a A far more orderly manner, it is to be noticed that the provisions of the 1996 Act are clearly aimed at facilitating and expediting the enforcement of the New York Convention Awards. Section 3 of the 1961 Act dealing with a stay of proceedings in respect of matters to be referred to arbitration was confined in its B application to "legal proceedings in any court" and the court haa a wider discretion not to stay the proceedings before it. The corresponding provision in section 45 of the present Act has a wider application and it covers an action before any judicial authority. Further, under section 45 the judicial authority c has a narrower discretion to refuse to refer the parties to arbitration. Under section 4(1) of the 1961 Act, a foreign award for its enforcement was first deemed to be an award made on a matter referred to arbitration in India. Section 46 of the present Act dispenses with the provision of sub-section (1) of section D 4 and resultantly a foreign award is enforceable in its own right. Section 47 is almost a reproduction of section 8 except for the addition of the words "before the court" in sub-section (1) and an explanation as to what is meant by "court" at the end of the section. Section 49 corresponds to section 6(1) and section 50 to section 6(2). It is however, a comparison of E section 6 of the 1961 Act with section 49 of the present Act that would be of interest to us and that provides a direct answer to the question under consideration. As the comparison of the two sections is of some importance, the two sections are once again reproduced here: F

The Foreign Awards (Recognition and Enforcement) Act, 1961 "6. Enforcement of foreign award.-(1) Where the court is G satisfied that the foreign award is enforceable under this Act, the court shall order the award to be filed and shall proceed to pronounce judgment according to the award.

(2) Upon the judgment so pronounced a decree shall follow, H

50 SUPREME COURT REPORTS [2011] 11 S . C.R.

A and no appeal shall lie from such decree except in_ so far as the decree is in excess of or not in accordance With the award."

The Arbitration and Conciliation Act, 1996

B "49. Enforcement of foreign awards.-Where the Court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that Court."

c 57. Under section 6 of the 1961 Act, the Court on being satisfied that the foreign award was enforceable under the Act, w9ul~ first order the award to be filed and then proceed to pronounce judgment according to the award. The judgment would lead to a decree against which no appeal would lie 0 except insofar as the decree was in excess of or not in accordance with the award.

58Copy pinpoint58. Section 49 of the present Act makes a radical change in that where the court is satisfied that the foreign award is enforceable, the award itself would be deemed to be a decree of the Court. It, thus, not only omits the procedural formality for the court to pronounce judgment and a decree to follow on that basis but also completely removes the possibility of the decree being in excess of, or not in accordance with the .award. Thus, even the limited basis on which an appeal would lie under sub-section (2) of section 6 of the 1961 Act, is taken away. There is, thus, no scope left for an appeal against an order of the court for the enforcement of a foreign award. It is for this reason that section 50(1 )(b) provides for an appeal only against an order refusing to enforce a foreign award under section 48.

59Copy pinpoint59. There can be no doubt that under section 6, except on the very limited ground, no appeal including a Letters Patent Appeal was maintainable _against the judgment and decree passed by the Court under section 6(1). It would be futile,

p. 51 Copy page pinpoint

LTD. [AFTAB ALAM, J.]

therefore, to contend that though the present Act even removes the limited basis on which the appeal was earlier maintainable, yet a Letters Patent Appeal would lie notwithstanding the limitations imposed by section 50 of the Act. The scheme of sections 49 and 50 of the 1996 Act is devised specially to exclude even the limited ground on which an appeal was earlier provided for under section 6 of the 1961 Act. The exclusion of appeal by section 50 is, thus, to be understood in light of the amendment introduced in the previous law by section 49 of the Act.

60Copy pinpoint60. There is another way to look at the matter. It will be c illuminating to see how the courts viewed the Arbitration Act, 1940 shortly after it was enacted and even while the previous law, the Arbitration Act, 1899 coupled with the Schedule 2 of the Code of Civil Procedure was still fresh in the courts' mind. D In Gauri Singh v. Ramlochan Singh, AIR (35) 1948 Patna 430, the plaintiff had filed a suit for an order for filing an arbitration award and preparing a decree of the court on that basis. The award was in writing and it was also registered on the. admission of the arbitrators but the award was made not on the basis of any arbitration agreement in writing but on an oral E reference. Before the division bench of the Patna High Court, the question arose regarding the maintainability of the suit. Agarwala, C.J. in a brief order held that Chapter II of the Act would only apply when the agreement was in writing. In other words, the existence of an "arbitration agreement" i.e. an F . agreement in writing, was the foundation of the court's jurisdiction to direct the arbitrators, under section 14(2), to cause the award to be filed in court. But Meredith, J. examined the matter in greater detail. He considered the question, whether the Act of 1940 was exhaustive or whether it related G only to awards following arbitration agreements within the meaning of the Act. The case of the plaintiff was that there was an oral reference to arbitration. Such an oral reference was perfectly valid and so was the award upon it. But it did not H

52 SUPREME COURT REPORTS [2011] 11 S.C.R.

A come within the scope of the Act. The award could, therefore, be enforced by an ordinary suit under the Code of Civil Procedure. Rejecting the submission, in paragraphs 20, 21 and 22 of the judgment, Meredith, J. observed as follows:

"20 ...... It may be regarded as settled that, so far as Sch.2, B Civil P.C .. and the Arbitration Act of 1899 were concerned, an award based upon an oral submission or reference to arbitration was not touched, but was perfectly legal and valid, and the award could be enforced by suit, though not by the special procedure under the provisions of the Civil c P.C .. or the 1899 Act. That Act was regarded as not exhaustive even in the limited, areas where it was applicable ......

21. This view was also taken by the Madras Higt:i Court in D Ponnamma v. Marappudi Kotamma [19 A.LR. 1932 Mad. 745], and also in our own High Court in Ramautar Sah v. Langat Singh, A.l.R. 1931 Pat. 92. The view there taken was that there is nothing in law which requJres a submission of the dispute between the parties to arbitration E to be inwriting. A parole submission is a legal submission to arbitration.

22. Has the position been altered by the Act of 1940? In my opinion it has. The Act of 1899 was described as "An Act to amend the law relating to arbitration", but the Act of F 1940 is headed as "An Act to consolidate and amend the law relating to arbitration", and the preamble says "whereas it is expedient to consolidate and amend the law relating to arbitration in British India". It is an Act to consolidate the arbitration law. This suggests that it is G intended to be comprehensive and exhaustive ....... "

61Copy pinpoint61. Making reference to sections 4 7, 26 and 30 of the 1940 Act, in paragraph 26 of the judgment, His Lordship concluded as follows: H

p. 53 Copy page pinpoint

LTD. [AFTAB ALAM, J.] "26. I think I am justified in holding, in view of these provisions, that the Act was intended to bl:l exhaustive of the law and procedure relating to arbitration. I cannot imagine that the words "arbitrations" and "awards" could have been used in such specific provisions without more, speciaUy having regard to the definition of award, if it was intended to leave it open to the parties to an award based upon an oral submission to proceed to enforce it or set it aside by proceedings by way of suit altogether outside the Act. Let us take it then that the Act intended that there should be no such proceedings." c

62Copy pinpoint62. In paragraph 33, he further said:

"If then, as I have held, the Act is intended to be exhaustive, and contains n·o provisions for the enforcement of an award based upon an oral submission, the only possible D conclusion is that the Legislature intended that such an award should not be enforceable at all, and that no such suit should /ie." ·

63Copy pinpoint63. In Belli Gowder v. Joghi Gowder, AIR (38) 1951 E Madras 683, Viswanatha Sastri, J. took the same view on a case very similar in facts to the case in the Patna decision. In paragraph 2 of the judgment, Sastri, J. observed as follows:

"2. The first point argued by the applt's learned advocate is that the suit is one to enforce an award given on oral reference or submission to arbitration and is not maintainable by reason of the provisions of the Arbitration Act, 1940. It is common ground that there was no written submission to the panchayatdars. Prior to the enactment of the Arbitration Act of 1940 it had been held by this and other H. Cts that there was nothing in the Arbitration Act of 1899 or in Sec. 89 and schedule 2 of the C. P. C. of 1908 rendering an oral agreement to refer to arbitration invalid. A parole submission was held to be a legal · submission to arbitration and an award passed on an oral H •

54 SUPREME COURT REPORTS [2011] 11 S.C.R.

A reference was held to be valid and enforceable by a suit though not by the special procedure prescribed by Sch 2, C. P. C. or the Arbitration Act of 1899 ....

. . . . The question whether it was intended merely to make B awards on oral submissions unenforceable under the procedure of the Arbitration Act or to make them invalid and unenforceable altogether, would depend to a large extent on whether the Act is exhaustive of the law of arbitration. I am inclined to think that it is. I therefore hold c that an award passed on oral submission can neither be filed and made a rule of Ct under the Act, nor enforced apart from the Act. The same opinion has been express;ed in 'Gauri Singh v. Ramlqchan Singh', AIR (35) 1948 Pat 430: (29 PLT 105)." D

64Copy pinpoint64. In Narbadabai and Ors. v. Natver/al Chuni/al Bha/akia & Anr., AIR 1953 Bombay 386, a division bench of the Bombay High Court went a step further and held that an arbitration award could 011Jy be enforced in terms of section 17 of the Arbitration Act and a suit filed for enforcement of an award was not maintainable. Chagla, C.J. speaking for the court, in paragraph 5 of the judgment, held and observed as follows:

"5. Whatever the law on the subject may have been prior to the Indian Arbitration Act 10of1940, it is clear that when this Act was passed, it provided a self-contained law with regard to arbitration. The Act was both a consolidating and amending law. The main object of the Act was to expedite and simplify arbitration proceedings and to obtain finality; and in our opinion when we look at the various provisions of the Arbitration Act, it is clear that no suit can be maintained to enforce an award made by arbitrators and an award can be enforced only by the manner and according to the procedure laid down in the Arbitration Act itself. Section 14 deals with signing and filing of the award. Section 15 deals with the power of the Court to modify the H