Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Bom) 811

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. Dhanuka, V.G. Bisht, JJ.
Essar Oil And Gas Exploration And Production Limited - Appellant
Versus
Toshiba Water Solutions Private Limited - Respondent
Interim Application (L) No. 4374 of 2021; Commercial Appeal (L) No. 4288 of 2021; Notice Of Motion No. 1165 of 2019; Commercial Arbitration Petition No. 485 of 2019
Decided On : 02-03-2021

Advocates appeared:
Pradeep Sancheti, Advocate, Gandhar Raikar, Advocate, Pallavi Bali, Advocate, Rahul Narichania, Advocate, Vishal Munglikar, Advocate, Aniketh Nair, Advocate, Shrikant Pillai, Advocate, Mustafa Motiwala, Advocate

The judgment establishes the principle that orders for stay of arbitral awards, passed in a notice of motion seeking stay under Section 36 of the Arbitration and Conciliation Act, 1996, are not appealable under Section 37 of the Act.

Headnote:
Arbitration and Conciliation Act - Appeal against Order for Stay of Arbitral Award - Appeal Dismissed as Not Maintainable
Fact of the Case:

The appellant filed an appeal under Section 37 of the Arbitration and Conciliation Act, 1996, seeking to impugn the order for stay of the Arbitral Award passed by the learned Single Judge.
Finding of the Court:

The court found that the order for stay of the arbitral award, passed in a notice of motion seeking stay under Section 36 of the Act, was not appealable under Section 37 of the Act. The court held that no appeal is permitted under Section 37 against such orders, and dismissed the appeal as not maintainable.
Issues: The main issue was the maintainability of the appeal under Section 37 of the Arbitration and Conciliation Act, 1996, in relation to the order for stay of the arbitral award.
Ratio Decidendi: The court's decision was based on the interpretation of Section 37 of the Arbitration and Conciliation Act, 1996, which specifies the orders from which an appeal shall lie. The court held that the order for stay of the arbitral award, passed in a notice of motion seeking stay under Section 36, did not fall within the appealable orders under Section 37.
Final Decision: The appeal was dismissed as not maintainable, and the interim application was accordingly disposed of.

JUDGMENT

1. By this Appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996, the appellant (original petitioner) has impugned the order dated 27th January, 2021 passed by the learned Single Judge in the Notice of Motion No. 1165 of 2019 inter-alia praying for stay of the Arbitral Award dated 26th November, 2018 passed by the sole Arbitrator.

2. Mr. Narichania, learned senior counsel for the respondent raises an issue of maintainability of this Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 on the ground that the order impugned in this appeal is order passed in the notice of motion, seeking stay of the award under Section 36 of the Arbitration and Conciliation Act, 1996 and is not an appealable order under Section 37 of the Arbitration and Conciliation Act, 1996.

3. Mr. Sancheti, learned senior counsel for the appellant on the other hand would submit that the Notice of Motion No. 1165 of 2019 was filed by his client inter-alia praying for stay of the arbitral award in the Commercial Arbitration Petition No. 485 of 2019 which petition was filed under Section 34 of the Arbitration and Conciliation Act, 1996 and thus the Notice of Motion for stay having been filed in petition under Section 34 of the Arbitration and Conciliation Act, 1996 an order therein would be appealable under Section 37 of the Arbitration and Conciliation Act, 1996.

4. A perusal of Section 37 of the Arbitration and Conciliation Act, 1996 clearly indicates that an appeal shall lie only from the orders specified therein under sub-section (1) and (2) of Section 37 and no other orders. In our view, no appeal is permitted under Section 37 against the order passed by a learned Single Judge in an application for stay of the arbitral award and more particularly under Section 36 of the Arbitration and Conciliation Act, 1996. Merely because the said notice of motion for stay under Section 36 of the Arbitration and Conciliation Act, 1996 was filed in the petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 , the order passed in such notice of motion/interim application cannot be construed as an order under Section 34 of the Arbitration and Conciliation Act, 1996. Arbitration petition filed by the applicant under Section 34 is still pending. No order appealable under Section 34 of the Arbitration and Conciliation Act, 1996 is passed by the learned Single Judge.

5. The Appeal is accordingly dismissed as not maintainable. In view of the dismissal of the appeal, Interim Application does not survive and is accordingly disposed of.

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