( 1 ) THIS appeal has been filed purportedly under Clause (10) of the Letters Parent of Lahore High Court as applicable to Delhi High Court. Challenge is to the judgment of learned Single Judge dated 12. 2. 2001 in IFAO 75 OF 2001 holding the same to be not maintainable under Section 37 (2) of the Arbitration and Conciliation Act, 1996 ( in short the Act ). Subject matter of the said appeal was order dated 12/01/2001 passed by the Arbitrator appointed pursuant to the directions given by this Court in OMP 173/2000.

( 2 ) FIRST appeal was filed as an application before the Arbitrator to implead respondents 2 to 6 herein was rejected by the Arbitrator on the ground that there was no arbitration agreement between the appellant and the said respondents and therefore, there is no question of impleading respondents 2 to 6 herein as parties to the arbitration proceedings. In the FAO, stand of the appellant was that order of the Arbitrator is under Section 16 (2) of the Act and consequently an appeal against the said order is maintainable. Learned Single Judge held that the matter raised before the Arbitrator by the appellant and decision taken therein was not encompassed by Section 16 (2) of the Act and therefore, the plea was not maintainable.

( 3 ) A preliminary objection was raised by the respondent as to the maintainability of the present appeal with reference to Section 37 (3) of the Act. While issuing notice on 28. 2. 2001, it was indicated by us that the appeal shall be heard on the question of maintainability and on merits if it is held to be maintainable and therefore we have permitted the parties to address us on the question of maintainability.

( 4 ) BEFORE we deal with the respective stands it would be appropriate to quote Section 37 (3) of the Act, the applicability of which is the foundation for questioning maintainability as raised by respondents, along with other sub-sections.

"37. APPEALABLE orders.-- (l) An appeal shall lie from the following orders ( and from no others) to the court authorised by law to her appeals from original decrees of the court passing the order, namely: - (a) granting or refusing to grant any measure under Section. (b) Setting aside or refusing to set aside an arbitral award under Section 34, (2) an appeal shall also He to a court from an order of the arbitral tribunal (a) accepting the plea referred to 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. "

( 5 ) ACCORDING to the appellants, Section 37 (3) postulates three conditions. Firstly, there must be an order passed in appeal; secondly, the order passed in appeal must be under Section 37 and thirdly, the appeal filed must be a second appeal. In any event, it is submitted that Letters Parent Appeal is not prohibited in the absence of specific bar in that regard, even if it is conceded;-for the sake of argument, that appeal in question amounted to a second appeal. According to learned counsel for the respondents, the appeal shall lie to this Court against the order of the arbitrator if the same relates to acceptance of plea referred in sub-section (2)and (3) of Section 16 or granting or refusing to grant an interim measure under Section 17. Sub-sections (2) and (3) of Section 16 read as follows:

"16 (2 ). A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of an arbitrator. (3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbi