1999 Supreme(Del) 692

High Court Of Delhi
JINDAL EXPORTS LIMITED - Appellant
Versus
FUERST DAY LAWSON LIMITED - Respondent
First Appeal (OS) 118 of 1999
Decided On : 09/01/1999

Headnote:Arbitration & Conciliation Act, 1996 - Section 47, 48, 49 & 50 — Execution of award — Dismissal of petition seeking execution — Appeal against the decision is not maintainable under the provision of Act but the impugned decision affecting valuable rights of the parties is thereforee a judgment subject to Letter Patent Appeal — Appeal directed to be registered as Letter Patent Appeal.

       Held:

       Section 49 of the A&C Act, 1996 provides that only where Court is satisfied that foreign award is enforceable under Chapter I of Part II, being New York Convention Awards that the said award shall be deemed to be a decree of that Court. thereforee, it would not be permissible to straight away file execution application in Court and in order to enforce the award, it would be necessary, for a person seeking enforcement, to first approach the Court and seek appropriate adjudication, as envisaged under Section 48 of the A&C Act. Such an adjudication was not sought and only execution application was filed, which by the impugned order has been held to be not maintainable. Learned Single Judge observing that since the petition substantially complies with the requirement of an application under Section 47 of the A&C Act, 1996, ordered that it be treated as an application under Section 47 of the said Act. Admittedly, the impugned order is such against which an appeal would not lie under Section 50 of the Act. The question, which was raised by the appellant before learned Single Judge in EA. 346/98 was about the very maintainability of execution petition. The objection is such, which if allowed, would have the effect of terminating the main proceedings. Learned counsel for the respondent is perfectly justified in placing reliance upon the decision of this Court in East India Hotels Ltd. case (supra) that Section 10 of the Delhi High Court Act does not confer any right of appeal but provides only for a forum of appeal. As such appeal would not lie under Section 10 of the Delhi High Court Act unless there is any other provision under which it will be permissible for the appellant to file appeal against the impugned order to a Division Bench of this Court.

       Now the question is whether the appeal would be maintainable under Clause 10 of the Letters Patent or not? Reliance placed by learned counsel for the respondent in M/s. Gourangalal Chatterjees case (supra) is misconceived in as much as the impugned order is not such, which learned Single Judge has passed in any of the proceedings taken out under the A&C Act. The order on the face of it and as has rightly been observed, in the impugned order by learned Single Judge is in proceedings, which were initiated by respondent not under the Act but de hors the Act. For that reason alone by the impugned order proceedings have been ordered to be converted into proceedings under the A&C Act. thereforee, the impugned order has to be treated as one having been passed by learned Single Judge not under any of the provisions of A&C Act, but in exercise of his inherent jurisdiction on original side of this Court. Thus, the impugned order is such, which would be deemed to have been passed de hors the provisions of the Act.

       The next question to be considered is whether the impugned order would be covered by the expression "judgment" so as to enable the appellant to challenge the same before a Division Bench of this Court under Clause 10 of the Letters Patent. In Shah Babulal Khimji v. Jayaben D. Kania and Anr., AIR 1981 S.C. 1786, tests were culled out to determine as to when an order passed by a learned Single Judge can be said to be judgment. It was held that every interlocutory order cannot be regarded as a judgment but only those orders would be "judgments", which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. While laying down the guide lines to determine whether or not an order passed by the trial Judge would be judgment within the meaning of the Letters Patent, instances have been given therein, which are illustrative and not exhaustive. Tests laid down by Sir Arnol White, CJ. in T.V. Tulzaram Row v. M.K.R.V. Allagappachettiar (1912) I.L.R. 35 Madras 1, were adopted and approved, which inter alias also laid down that if there is a possibility of the defendant succeeding and thereby bringing about termination of the proceedings by an order being passed the other way, the order would be an appealable because the order involves an adverse determination or adjudication to a valuable right of the defendant.

       There is no manner of doubt that upholding of the objection of the appellant ultimately is likely to have an effect of terminating the proceedings initiated by the respondent as was ordered by learned Single Judge in the other execution case against which the respondent has preferred an appeal. For that reason, we are of the view that applying the tests laid down in Shah Babulal Khimjis case (supra), the appeal would be maintainable under Clause 10 of the Letters Patent. We direct that the appeal be treated as one having been filed under Clause 10 of the Letters Patent.