2002 Supreme(SC) 423

2002(3) Supreme 61
SUPREME COURT OF INDIA
(From Kolkata High Court)
B.N. Kirpal, K.G. Balakrishnan and Brijesh Kumar, JJ.
Union of India & Ors. -Appellants
versus
Aradhana Trading Co & Ors. -Respondents
Civil Appeal Nos. 981-993 of 2000
Decided on 1-4-2002
Counsel for the Parties :
For the Appellants : Mukul Rohtagi, Aditional Solicitor General and Ranjit Kumar, Senior Advocate, Ms. Binu Tamta, Ms. Niranjana Singh, Ms. Anil Katiyar, Advocates.
For the Respondents : Jaideep Gupta and K.V. Vijaya Kumar, Advocates.

VERY IMPORTANT POINT
No appeal lies before the D.B. of High Court against judgment and order of Single Judge rejecting the application under Order 9 Rule 13 CPC for setting aside the ex-parte decree making the Award Rule of the Court in the facts and circumstances of the case.

Headnote:(i) Arbitration Act, 1940-Sections 14(2) and 28-Dispute on to filing of the award-Calcutta High Court in writ petitions appointing arbitrators-Award given within extended time sought by appellant-Appellant moved application u/s 14(2) before District Court of Asansol for filing of the award as subject matter of arbitration viz. supplies made to Chitranjan Locomotive was situated in District of Asansol -No notice issued-Award filed in High Court of Calcutta under its original jurisdiction-Whether High Court was justified in entertaining the proceedings for making the award Rule of the Court since the District Court of Asansol had also been moved by the appellant to issue notice to arbitrator, u/s 14(2) of the Arbitration Act, 1940 for filing of the award in the Asansol Court? (Yes).

       Held that the Arbitrators were appointed in pursuance of an order passed by the High Court on the writ petitions filed by the respondents as a consequence whereof the Arbitrators proceeded in the matter and finally published the award. On two occasions earlier, the parties including the appellant had approached the High Court only for extension of time for making the award. The orders were passed by the High Court on 24.2.1997 and 28.7.1997 extending the time that is to say much before the appellant moved application in the Court of the Assistant District Judge, Asansol for a direction to the Arbitrator to file the award in Asansol. In the above circumstances, it is too late in the day for the appellant to turn around and say that that the High Court of Calcutta could not entertain the filing of the award and to proceed with making it a rule of the court. Needless to mention that Calcutta High Court exercises its original civil jurisdiction as well. Therefore, perhaps the appellant has not come up with the case that there was any inherent lack of jurisdiction in the High Court of Calcutta to entertain such suit or proceedings. As indicated earlier the appellant itself had submitted to the jurisdiction of the High Court while moving application for extension of time under Section 28 of the Arbitration Act. We therefore do not find any fault in the finding of the High Court negating the plea raised by the appellant that Arbitrators should have filed the Award in the Asansol courts and not in the High Court. (Para 7)

       (ii) Arbitration Act, 1940-Sections 14, 17, 39 and 41-C.P.C., 1908-Order IX Rule 13-Maintainability of LPA-Judgment and order of learned Single Judge of the Calcutta High Court making award rule of Court after notice to appellant-Appellant moving an application under Order 9 Rule 13 for setting aside decree making the award rule of the court terming it ex-parte and pleading sufficient cause of non-appearance-Rejected by Single Judge-Appeal against before Division Bench-Whether maintainable as LPA? (No)- Case law discussed.

       Held : So far the question as to whether the order passed by the learned Single Judge rejecting the application for recalling/setting aside ex parte order dated 27.1.1998 is concerned, it cannot be treated as an order refusing to set aside the award. This position would stand covered by the decision in the case of Neeilkantha Shidramappa Ningashetti (supra) as it has been held if there was no objection before the court for setting aside the award, no question of refusal to set it aside could arise. Hence no appeal under Section 39(1 )(vi) of the Arbitration Act would be maintainable. The ground of challenge of the award was that the limitation to file the objection was to run with effect from the date of service of a written notice for filing of the objection which contention was repelled by the Bench consisting of four Hon ble Judges holding that the knowledge of the appellant of the award having been filed and time allowed to file objections was sufficient notice. In the present case also it is to be found that no objections to the award had been filed despite due notice and nor even subsequently while counsel is said to have been attending the court on two dates fixed in the case. In this view of the matter it would not be necessary to go into other aspect of the matter or the view taken in some other cases as referred to in the earlier part of the judgment. Some cases, a reference of which has been made earlier relate to the question of maintainability of a second appeal in Letters Patent against the appellate order passed under Section 39(1) of the Arbitration Act as in the case of Mohindra Supply Company (supra) where the Bench of four Hon ble Judges held that in view of clause (2) of Section 39 of the Arbitration Act, an appeal against an appellate order under the Letters Patent was not maintainable. The restriction to appeal contained under sub-section (2) of Section 39 was applicable to Letters Patent. So restriction contained under sub-section (1) of Section 39 of Arbitration Act shall also be applicable. (Para 12)

       (iii) Arbitration Act, 1940-Sections 39 and 41-Appealable orders-C.P.C. 1908-Order 9 Rule 13 and Order 43, clause (c) read with Section 104-Whether an order passed on an application making the prayer like Order IX Rule 13 C.P.C. would be appealable or not under Arbitration Act? (Not in this case)-Case law discussed-Result-Appeal dismissed.

       Held : Here we find that there is yet another constraint as provided under sub-section (1) of Section 39 of the Arbitration Act itself and it is emphatic too when it says that appeal shall lie against the orders indicated in the provision and from no other order. Section 41 of the Arbitration Act makes the provisions of CPC applicable subject to the provisions of the Arbitration Act and the rules framed thereunder. Therefore, the nature of an order against which an appeal may lie must conform to the nature of the order as enumerated under sub-section (1) of Section 39 of the Arbitration Act. If it does not amount to such an order as enumerated under sub-section (1) of Section 39, the prohibition as contained in this sub-section "(against no other order") itself, would become operative, subject to which alone provisions of CPC apply under Section 41 of the Act. In the facts of the present case we find that an order refusing to recall an order passed by the court will not amount to refusal to set aside the award under clause (vi) of sub-section (1) of Section 39 of the Arbitration Act as no objections to set aside the award have ever been filed with or without application for condonation of delay, challenging the award. Admittedly, the appellant did not file any appeal against the order dated 27.1.1998. In these circumstances and in view of the provisions of the Arbitration Act, the decision in the case of National Sewing Thread Co. Ltd. [1953 SCR 1028] shall also not be applicable as in the Trade Marks Act with which the court was dealing, did not have any provision like the one contained in sub-section (1) of Section 39 of the Arbitration Act restricting the right of appeal only in respect of certain nature of orders and prohibiting appeal against any other order whatsoever. Therefore, in the case of National Sewing Thread Co. Ltd. (supra) it was held that where a provision for appeal was made under Section 76(1) of the Trade Marks Act to the High Court, with nothing more, the other provisions relating to exercise of that jurisdiction by the High Court would be applicable. The case of National Sewing Thread Co. Ltd. (supra) is thus based on different provisions and is clearly distinguishable. The case in hand is covered by the decisions in the cases of Neeilkantha [1962(2) SCR 551] and Mohindra Supply Co. [1962(3) SCR 497] both decided by Bench of four Judges which do not seem to have been noticed in other judgments. In view of the discussion held above, we find no force in the appeals and they are dismissed. There would however be no order as to costs. (Paras 13 & 14)