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2012 Supreme(Bom) 557
High Court of Judicature at Bombay
D.K. DESHMUKH & R.Y. GANOO, JJ.
Conros Steels Pvt. Ltd.
Versus
Lu Qin(Hong Kong) Co.Ltd. & Others
APPEAL NO.806 OF 2011 IN NOTICE OF MOTION NO.3709 OF 2010 IN SUIT NO.2358 OF 2010
Decided on : 13-03-2012
For the Appellant:Ms. Usha Srivastav i/b. M/s. Consulta Juris, Advocates.
For the Respondents:V.P. Sawant, Rajat Taimni, Mahendra Singh, Keanan Nagporwala i/b. M/s. Tuli&co., Advocates.
Headnote:
Arbitration and Conciliation Act - Maintainability - Section 37
Fact of the Case:
The appellant filed a civil suit seeking a money decree against the first defendant. The defendant sought to refer the disputes to arbitration and terminate the civil suit. The Single Judge granted the notice of motion in favor of the defendant, leading to the present appeal.
Finding of the Court:
The court analyzed the maintainability of the appeal under Section 37 of the Arbitration and Conciliation Act, as raised by the respondents. The court considered conflicting judgments and interpretations of Section 37, and concluded that the question of maintainability of an appeal against an order passed in a civil suit needed to be reexamined. The court directed the matter to be considered by a larger bench.
Issues: The main issue was the maintainability of the appeal under Section 37 of the Arbitration and Conciliation Act against an order passed in a civil suit due to the provisions of Section 8 of the Act.
Ratio Decidendi: The court held that the question of maintainability of an appeal against an order passed in a civil suit due to the provisions of Section 8 of the Arbitration and Conciliation Act needed to be reexamined, and directed the matter to be considered by a larger bench.
Final Decision: The court directed the matter to be considered by a larger bench to determine the maintainability of an appeal under the provisions of clause 15 of the Letters Patent against an order passed by the learned Single Judge in a civil suit in an application filed in that civil suit because of the provisions of section 8 of the Arbitration and Conciliation Act.
D.K. DESHMUKH, J.
1. When this appeal was called for admission, on behalf of the respondents an objection to the maintainability of this appeal was raised. It was contended that in view of the provisions of Section 37 of the Arbitration and Conciliation Act 1996, the present appeal is not maintainable. We heard the learned Counsel appearing for both the sides at length on this preliminary objection. In view of the order that we propose to make the following would be the relevant facts:-
2. The present appellant-Conros Steels Pvt. Ltd. filed Civil Suit no.2358 of 2010 in this Court seeking money decree in the amount of Rs.4.19 crores against the first defendant together with interest. The second and third defendants to the suit are bankers and there is an express averment made in paragraph 1 of the plaint that no relief is claimed against the second and third defendants. In the suit, Notice of motion no.3709 of 2010 was taken out by defendant no.1. The principal reliefs that were claimed were claimed by prayer clauses (a) & (b). Prayer clauses (a) & (b) read as under:-
"a) That the disputes sought to be raised by the Plaintiff in the present suit being C.S.no.2358 of 2010 be referred to arbitration in accordance with the arbitration agreement between the parties as stipulated in the Sales Contracts dated 28th April, 2010.
b) Thereupon the current proceedings being C.S.No.2358 of 2010 be terminated."
In the affidavit filed in support of the notice of motion, the defendant no.1 stated that the notice of motion has been taken out for an order referring the parties to arbitration in view of the existing arbitration agreement between the parties and for termination of the civil suit. The notice of motion was opposed by the plaintiff. The learned Single Judge of this Court decided that notice of motion by order dated 11/14th March,2011. The learned Single Judge for the reasons that he has given in his order, granted the notice of motion in terms of prayer clause (a) and (b). The present appeal is filed by the original plaintiff challenging that order.
3. As observed above, a preliminary objection to the maintainability of this appeal has been raised on behalf of respondent no.1 relying on the provisions of Section 37 of the Arbitration and Conciliation Act, 1996. It is submitted on behalf of respondent no.1 that the present appeal has been filed by the appellant under Clause 15 of the Letters Patent and in view of the provisions of Section 37 of the Arbitration and Conciliation Act the present appeal is not maintainable. It is claimed that Section 37 of the Arbitration and Conciliation Act provides for appeal only against the orders granting or refusing to grant any measure under Section 9 of the Arbitration and Conciliation Act and against the order setting aside or refusing to set aside the Arbitral Award under Section 34 of the Arbitration and Conciliation Act, and it also, by necessary implication, bars appeal being filed against the orders that may have been made under any other provisions of the Arbitration and Conciliation Act. In support of this objection, the learned Counsel appearing on behalf of respondent no.1 relied on the following judgments:-
1. Union of India Vs. Mohindra Supply Company, AIR 1962 SC 256.
2. Smt.Sudarshan Chopra & Ors. Vs. Vijay Kumar Chopra & Ors., (2003) 117 Comp Cas 660.
3. Canbank Financial Services Ltd. Vs. Haryana Petrochemicals Ltd. & Anr., 2008(2) ArbLR 365(Delhi),
4. International Thermal Technology Kircher Italia, Branch, S.P.A. Vs. Esteem Projects Pvt. Ltd, Appeal No.485 of 2005, order dated 19.3.2009,
5. Rites Ltd. Vs. JMC Projects (India)Ltd., MANU/DE/0266/2009.
6. Jet Airways (India) Ltd. Vs. Sahara Airlines Ltd, 2011 Vol.113(6) Bom.L.R. 3835.
7. Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd. (2011)8 SCC 333.
4. On behalf of the appellant, on the other hand, it is submitted that the order which is impugned in the appeal results in terminating/disposing of the suit filed by the plaint
