An appeal does not lie against an order passed under S. 11 of the Arbitration and Conciliation Act, 1996.

( 1 ) - This appeal has been filed by the Union of India and General Manager, Eastern Railway against the judgment dated 25th September, 1998 passed by the learned single Judge of this Court in AP No. 161 of 1998 (reported in AIR 1999 Cal 117) whereby, applications filed under Ss. 10 and 11of the Arbitration and Conciliation Act 1996 (1996 Act for short) have been allowed and the Learned Single Judge has directed that the matter be referred to the Chief Justice of the High Court for appointing 5 several - sole Arbitrators in terms of S. 11 of 1996 Act in respect of the contract Agreements relating to the jurisdiction of 5 Courts at Howrah, Burdwan, Bolpur, Suriand the High Court of Calcutta.

( 2 ) AT the very outset the respondents in the appeal have raised the basic question of maintainability of the appeal, relying upon S. 37 of 1996 Act. The contention of the respondents is that in view of the clear language employed in S. 37 of 1996 Act, no appeal lies against an order passed under S. 11 of the Act since S. 37 is restrictive with respect to the filing of appeals and is specifically confined to appeals only in respect of such specific types of orders as are mentioned therein. Analogy is drawn to S. 39 of 1940 Act.

( 3 ) IN order to understand and appreciate the basic objection regarding the maintainability of the appeal, we have to look to S. 37 of the Act which reads thus :"37. Appealable orders (1) 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 :- (a) granting or refusing to grant any measure under S. 9. (b) setting aside or refusing to set aside an arbitral award under S. 34. (2) An appeal shall also lie to a Court from order of the arbitral tribunal. (a) accepting the plea referred to in sub-section (2) or sub-section (3) of S. 16; or (b) granting or refusing to grant as interim measure under S. 17. (3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.

( 4 ) A bare look at S. 37 clearly suggests that only two kinds of orders passed by a Court are appealable to a Court authorised by law to hear appeals and those two orders are mentioned in Clauses (a) and (b) of sub-sec. (1) of S. 37, viz. granting or refusing to grant any measure under S. 9 of the Act or setting aside or refusing to set aside an arbitral award under S. 34 of the Act. In the very opening part of S. 37, namely in sub-section (1) the expression "and from no others" clearly suggests the legislative intent that no appeal other than those relating to the orders mentioned in S. 37 shall lie before an Appellate Court.

( 5 ) WHEN confronted with this situation the Learned Advocate for the appellant submitted that even if the appeal is not maintainable under S. 37 of 1996 Act, it lies under clause 15 of the Letters Patent.

( 6 ) A four Judge Bench of the Supreme Court in the case of Union of India v. Mohindra Supply Co. reported in, AIR 1962 SC 256 while dealing with similar question regarding the maintainability of appeal under S. 39 of Arbitration Act, 1940 vis-a-vis Letters Patent held as under :-"the problem to which attention must then be directed is whether the right to appeal under the Letters Patent is at all restricted by S. 39, sub-secs. (1) and (2 ). Clause 10 of the Letters Patent of the High Court, in so far as it is material, provides :"and we do further ordain that an appeal shall lie to the said High Court. . . . . . . from the judgment (not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction. . . . . . .) of one Judge of the High Court. "by this clause, a ri