2009 Supreme(SC) 553

2009(3) Supreme 208
SUPREME COURT OF INDIA
R.V. Raveendran and Markanday Katju, JJ.
Shin-Etsu Chemical Co. Ltd. — Appellant
versus
Vindhya Telelinks Ltd. & Ors. — Respondents
Civil Appeal No. 4998 of 2007
Decided on : 24-03-2009

IMPORTANT POINT
SLP shall not be maintainable if alternate remedy by way of appeal or revision is available.

Headnote:(a) Constitution of India,1950 – Article 136 – SLP – The Supreme Court may in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India – The power vested in Supreme Court to grant leave cannot be construed as vesting of a right of appeal in a party under Article 136 – An appeal by special leave to Supreme Court cannot therefore be considered as an appeal as of right or as an appeal in pursuance of a right to appeal to the Supreme Court. (Para 8)

        (2005)7 SCC 234 – Relied upon.

        (b) Constitution of India,1950 – Article 136 r/w section 115, CPC – Though the existence of an alternative remedy by itself will not take away the jurisdiction of Supreme Court under Article 136, the Court would not grant leave and entertain appeals against orders/judgments/decrees of the district court or courts sub-ordinate thereto, if remedy by way of appeal or revision to the High Court or other court or forum is available u/s 115, CPC. (Para 11)

        (2002)5 SCC 520; (2002)5 SCC 510; (1996)2 SCC 132; 2008 (11) SCALE 616 – Relied upon.

        (c) Constitution of India,1950- Article 136 – The discretionary power vested in Supreme Court under article 136 continues even after granting leave – Therefore, on hearing an appeal by special leave, the Court may refuse to go into merits, or even if it goes into merits, merely declare the law and refuse to interfere if interests of justice and/or facts of the case do not call for interference – If the Court finds that leave ought not to have been granted and that no prejudice will be caused, it may reject the appeal by special leave, reserving liberty to the appellant to pursue the alternative remedy before the High Court or other appropriate forum – In extreme cases, the Court may even revoke the leave already granted. (Para 12)

        (1999)2 SCC 635; (1999)8 SCC 1 – Relied upon.

        (d) Constitution of India,1950 – Article 136 – Consistent judicial view has been not to entertain appeals directly from the orders of district courts or court subordinate thereto, if an alternative remedy by way of appeal or revision was available before the High Court – After amendment of Section 115, CPC, invoking the supervisory jurisdiction under Art. 227 of the Constitution, has been considered as an adequate alternative remedy, for the purposes of Article 136. (Para 13)

        (2003)6 SCC 675 – Relied upon.

       Facts of the case :

        1. Vindhya Telelinks Ltd. and Optic Fibre Goa Ltd. - respondents 1 & 2 in the first of the two appeals filed Civil Suit Nos. 31-A of 2002 for a declaration that the Long Term Sale and Purchase Agreement entered between appellants and them, was null and void and for a permanent injunction restraining the appellant (first defendant in the suit) from relying upon/invoking/giving effect to any term of the said agreement. Similarly, Birla Ericsson Optical Ltd. and Optic Fibre Goa Ltd - respondents 1 & 2 in the second of these appeals, filed Civil Suit in the said court for similar reliefs.

        2. On entering appearance, the appellant filed applications under Order VII, Rule 11 of Code of Civil Procedure read with Sections 5 and 8 of the Act seeking dismissal of the suits and a direction for referring the parties to arbitration (in terms of the arbitration agreement contained in the Long Term Sale & Purchase Agreements dated 23rd and 24th January, 2001).

        3. The said applications were dismissed by the trial court. The revision petitions filed by the appellants were dismissed by the Madhya Pradesh High Court on 26.08.2003.

        4. On remand by the Supreme Court, to the trial court to decide the matters afresh treating the applications filed by the appellant herein (under Order 7 Rule 11 CPC read with sections 5 and 8 of the Act) as applications under Section 45 of the Act and dispose them in terms of the decision in Aksh Optifibre Ltd.(supra), the trial court passed a common order dated 31.3.2006 thereon, holding that the arbitration clause on the basis of which the appellant had filed an application under Section 45 of the Act was prima facie inoperative and in such a situation, the parties cannot be referred to arbitration and the matter should be proceeded with and decided on merits by the court.

        5. The said order of the trial court was challenged by the appellant before the IV Additional District Judge, Rewa who by the impugned orders dated 30.11.2006 allowed the appeals, set aside the order of the trial court, and remitted the matters to the trial court. The said orders of the Additional District Judge are challenged in these appeals by special leave under Article 136 of the Constitution of India.

       Finding of the Court :

        Appeals are not maintainable in view of alternate remedy being available.

       Result : Appeals dismissed.