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IN THE HIGH COURT AT CALCUTTA
PRABIR KUMAR MAJUMDAR & SAMARESH BANERJEA, JJ.
Santosh Kumar Agarwal
Versus
Phalguni Banerjee & another
Special Suit No. 131 of 1992
Decided on : 22.4.1993
ARBITRATION - APPEALABILITY - ORDER UNDER SECTION 41 OF THE ARBITRATION ACT, 1940 - WHETHER APPEALABLE UNDER SECTION 39 OF THE ARBITRATION ACT, 1940 OR UNDER CLAUSE 15 OF THE LETTERS PATENT - HELD, NOT APPEALABLE.
Fact of the Case:
The appellant filed an appeal against an order passed by a learned Judge of the Calcutta High Court under Section 41 of the Arbitration Act, 1940. The respondents raised an objection to the maintainability of the appeal, contending that the order was not appealable under Section 39 of the Arbitration Act, 1940.
Finding of the Court:
The court held that the order under appeal was an order made under the Arbitration Act, 1940, and was, therefore, not appealable under Section 39 of the Arbitration Act, 1940. The court further held that the order was not appealable under Clause 15 of the Letters Patent, as the Arbitration Act, 1940, was a complete Code in itself and did not fetter or override any right or power conferred by the Letters Patent.
Issues: 1. Whether the order under appeal was an order made under the Arbitration Act, 1940? 2. Whether the order under appeal was appealable under Section 39 of the Arbitration Act, 1940? 3. Whether the order under appeal was appealable under Clause 15 of the Letters Patent?
Ratio Decidendi: 1. The court held that the order under appeal was an order made under the Arbitration Act, 1940, as it was made under Section 41(b) of the Arbitration Act, 1940, which empowered the court to make orders in respect of the matters set out in the Second Schedule to the Arbitration Act, 1940, for the purpose of, and in relation to, arbitration proceedings. 2. The court held that the order under appeal was not appealable under Section 39 of the Arbitration Act, 1940, as it did not come under any of the categories of orders mentioned in Section 39 of the Arbitration Act, 1940. 3. The court held that the order under appeal was not appealable under Clause 15 of the Letters Patent, as the Arbitration Act, 1940, was a complete Code in itself and did not fetter or override any right or power conferred by the Letters Patent.
Final Decision: The court dismissed the appeal, holding that it was not maintainable.
PRABIR KUMAR MAJUMDAR, J.
1. This is an appeal from an order dated 5th April, 1993 passed by a learned Judge of this court taking arbitration matters. The order under appeal is an order on the application taken out by the appellant under s. 41 of the Arbitration Act, 1940.
2. When the stay application and also the application for admission of the appeal was moved the respondents raised an objection as to the maintainability of the appeal. The objection is that the order under appeal is not an order appealable under s. 39 of the Arbitration Act, 1940. The appellant, however, contends that s. 39 takes within its ambit an order made under this Act. The submission of the appellant is that the order under appeal being an order made under s. 41 of the Arbitration Act is not an order under this Act, viz., the Arbitration Act, 1940. Therefore, according to the learned counsel for the appellant, s. 39 of the Arbitration Act is not applicable to the order from which this appeal is preferred. It is submitted on behalf of the appellant that if the order under appeal satisfies the test of judgment within the meaning of clause 15 of the Letters Patent then this court can entertain this appeal under clause 15 of the Letters Patent.
3. Learned counsel for the appellant has also taken us to the scheme of the Arbitration Act, 1940 and he submits that the provisions in Chapter I and other Chapters till Chapter V are the provisions relating to the matters which can only be considered under the Arbitration Act and some exclusive powers are conferred on this Court by the Arbitration Act when the court considers matters relating to arbitration. Now, the expression used in s. 39 of the Arbitration Act i.e., under this Act contemplates orders made by the Court while exercising jurisdiction under the Arbitration Act in the matters contained under any of the provisions from Chapter I to Chapter V.
4. The learned counsel for the appellant also submits that Chapter VII of the Arbitration Act deals with miscellaneous provisions and any order passed by the court under any of the provisions contained in Chapter VII will be an order not under the Arbitration Act but an order made under the general provision of law. It is also the submission of the learned counsel for the appellant that if any order is made under any of the provisions contained in Chapter VII, i.e., from s. 40 to s. 47, then such order would not be an order under the Arbitration Act, and as such s. 39 of the Arbitration Act would not be attracted to those orders. It is also his submission that if such order made under Chapter VII of the Arbitration Act, 1940 is a judgment within the meaning of clause 15 of the Letters Patent then this court being a Chartered High Court can entertain an appeal from such order. It is also the submission on behalf of the appellant that Letters Patent cannot be abrogated by the Arbitration Act nor can the Arbitration Act fetter any right conferred under the Letters Patent. The learned Counsel for the appellant submits that there is a clear judicial pronouncement on this and that is contained in the decision reported in Shah Babulal Khimji vs. Jayaben D. Kanta & another, AIR 1981 SC 1786. The learned counsel also submits that this view has also been accepted by the Division Bench of this court in a decision reported in M/s. Unit Construction Co. Pvt. Ltd. vs. University of North Bengal, 1996 (2) CHN 275.
5. The learned counsel for the respondent has submitted that this impugned order made under s. 41 of the Arbitration Act is an order in aid of matters, enumerated in the Second Schedule of the Arbitration Act. It is his submission that the appellant has made an application praying for an order of injunction restraining the respondents from doing certain acts and also for appointment of Receiver. According to the learned counsel appearing for the respondent this application is for an order in respect of the matters enumerated in the Second Schedule to the Arbitra
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