The main legal point established in the judgment is that appeals would only lie from the orders mentioned in Section 37 of the arbitration and Conciliation act, 1996, and from no others. Additionally, the court highlighted that an order under sections 36(2) and (3) of the arbitration and Conciliation act, 1996 is not one of the orders contemplated in Section 13 of the Commercial Courts act, 2015 from which an appeal lies.

JUDGMENT

I. P. Mukerji, J. - We heard out the appeal on the point of maintainability. It is this. This appeal under Clause 12 of the Letters Patent from the judgment and order dated 7th February, 2022 of the learned single judge directing security to be furnished as a condition precedent to stay of the impugned award, does not lie before a Division Bench of this court. If the respondents succeed on this point, the question of hearing out the appeal on merits does not arise.

It would appear from the cause title of the application before the learned trial court, that it was described as one under Section 36(2) and (3) of the arbitration and Conciliation act, 1996. The prayers were also in accordance with those sections asking for stay of operation of the arbitral award dated 1st October, 2009 as corrected by the learned arbitrator's order dated 3rd December, 2019.

The learned single judge by his judgment and order dated 7th February, 2022 rejected the offer of the appellant/ petitioner to furnish security in the form of an immovable property. If they could furnish a bank guarantee for Rs.7.93 crores to the satisfaction of the learned Registrar, Original Side within two weeks from the date of the order execution of the award would be stayed. In default the respondents would be free to execute the award.

Section 37 of the arbitration and Conciliation act, 1996 provides as follows:

'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 section 9;

(b) setting aside or refusing to set aside an arbitral award under section 34.

(2) an appeal shall also lie to a Court from an order granting of the arbitral tribunal.-

(a) accepting the plea referred in sub-section (2) or sub-section (3) of section 16; or

(b) granting or refusing to grant an interim measure under section 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.'

Since this proceeding is brought in the commercial jurisdiction of this court, Section 13 of the Commercial Courts act, 2015 is also applicable and is to be noticed. It is as follows:-

'13. appeals from decrees of Commercial Courts and Commercial Divisions -

(1) any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial appellate Court within a period of sixty days from the date of judgment or order.

(1a) any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial appellate Division of that High Court within a period of sixty days from the date of the judgment or order:

Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this act and section 37 of the arbitration and Conciliation act, 1996 (26 of 1996).]

(2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this act.'

Clause 15 of the Letters Patent lays down as hereunder:-

'15. appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction.-and we do further ordain, that an appeal shall lie to the said High Court Judicature at Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Cour