AMAZON.COM NV INVESTMENT HOLDINGS LLC v. FUTURE RETAIL LIMITED & ORS.

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73Copy pinpoint73. At this juncture, it is important to notice that Section 37 did not remain untouched by the 2015 Amendment Act. As a matter of fact, a new category of appeals was infused into the said provision by adding a G new sub-section (1)(a), which reads as follows: “37. Appealable orders.—(1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie from the following orders (and from no others) to the court authorised by law to hear appeals from original decrees of the Court passing the order, namely:— H

AMAZON.COM NV INVESTMENT HOLDINGS LLC v. 859 FUTURE RETAIL LIMITED [R. F. NARIMAN, J.]

(a) refusing to refer the parties to arbitration under Section 8;” A ***

74Copy pinpoint74. Despite Section 17 being amended by the same Amendment Act, by making Section 17(1) the mirror image of Section 9(1) as to the interim measures that can be made, and by adding Section 17(2) as a consequence thereof, significantly, no change was made in Section 37(2) B (b) to bring it in line with Order XLIII, Rule 1(r). The said Section continued to provide appeals only from an order granting or refusing to grant any interim measure under Section 17. There can be no doubt that granting or refusing to grant any interim measure under Section 17 would only refer to the grant or non-grant of interim measures under Section C 17(1)(i) and 17(1) (ii). In fact, the opening words of Section 17(2), namely, “subject to any orders passed in appeal under Section 37…” also demonstrates the legislature’s understanding that orders that are passed in an appeal under Section 37 are relatable only to Section 17(1). For example, an appeal against an order refusing an injunction may be allowed, in which case sub- section (2) of Section 17 then kicks in to enforce the D order passed in appeal. Also, the legislature made no amendment to the granting or refusing to grant any measure under Section 9 to bring it in line with Order XLIII, Rule 1(r), under Section 37(1)(b). What is clear from this is that enforcement proceedings are not covered by the appeal provision. E

75Copy pinpoint75. However, learned counsel appearing on behalf of the Respondents pressed into service a recent judgment of this Court in Chintels (India) Ltd. v. Bhayana Builders (P) Ltd., (2021) 4 SCC

602. The precise question that arose before this Court was as to when an application seeking condonation of delay in filing an appeal is dismissed, F whether this would amount to “refusal to set aside an arbitral award” under Section 34 and thus be appealable under Section 37(1)(c) of the Act. In answering this question, this Court referred to Section 37(1) of the Act and stressed the fact that an application for setting aside an award must be in accordance with sub-sections (2) and (3) of Section 34 – See paragraph 9. The Court then set out Section 34(3) and opined: G

11. A reading of Section 34(1) would make it clear that an application made to set aside an award has to be in accordance with both sub-sections (2) and (3). This would mean that such application would not only have to be within the limitation period H

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A prescribed by sub-section (3), but would then have to set out grounds under sub-sections (2) and/or (2-A) for setting aside such award. What follows from this is that the application itself must be within time, and if not within a period of three months, must be accompanied with an application for condonation of delay, provided it is within a further period of 30 days, this Court having made it B clear that Section 5 of the Limitation Act, 1963 does not apply and that any delay beyond 120 days cannot be condoned — see State of H.P. v. Himachal Techno Engineers [State of H.P. v. Himachal Techno Engineers, (2010) 12 SCC 210 : (2010) 4 SCC (Civ) 605] at para 5.” C Coming to Section 37(1)(c), the Court then held: “12. We now come to Section 37(1)(c). It is important to note that the expression “setting aside or refusing to set aside an arbitral award” does not stand by itself. The expression has to be read with the expression that follows— “under Section 34”. Section D 34 is not limited to grounds being made out under Section 34(2). Obviously, therefore, a literal reading of the provision would show that a refusal to set aside an arbitral award as delay has not been condoned under sub-section (3) of Section 34 would certainly fall within Section 37(1)(c). The aforesaid reasoning is strengthened E by the fact that under Section 37(2)(a), an appeal lies when a plea referred to in sub- section (2) or (3) of Section 16 is accepted. This would show that the legislature, when it wished to refer to part of a section, as opposed to the entire section, did so. Contrasted with the language of Section 37(1)(c), where the expression “under Section 34” refers to the entire section and not to Section 34(2) F only, the fact that an arbitral award can be refused to be set aside for refusal to condone delay under Section 34(3) gets further strengthened.” Unlike the language of Section 34, a literal reading of Section 17 would show that the grant or non-grant of interim measures under Section G 37(2) (b) refers only to Section 17(1) of the Act. Also, in the context of Section 37(2)(b), the entirety of Section 17 was referred to when Sections 17 and 37 were first enacted in 1996. It is only by the 2015 Amendment Act that Section 17 was bifurcated into two sub-sections. What is significant in this context is that no corresponding amendment was made to Section 37(2)(b) to include within its scope the amended Section 17,

AMAZON.COM NV INVESTMENT HOLDINGS LLC v. 861 FUTURE RETAIL LIMITED [R. F. NARIMAN, J.]

as has been pointed out hereinabove. This judgment is also distinguishable and, therefore, does not carry the Respondents’ argument any further.

76Copy pinpoint76. The second question posed is thus answered declaring that no appeal lies under Section 37 of the Arbitration Act against an order of enforcement of an Emergency Arbitrator’s order made under Section 17(2) of the Act. As a result, all interim orders of this Court stand vacated. B The impugned judgments of the Division Bench, dated 8th February, 2021 and 22nd March, 2021, are set aside. The appeals are disposed of accordingly.

Nidhi Jain Appeals disposed of. C