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High Court Of Delhi
UNION OF INDIA - Appellant
Versus
N.K.PRIVATE LIMITED - Respondent
First Appeal (OS) 7 of 1971
Decided On : 12/17/1971
ARBITRATION ACT - APPEAL - ORDER PASSED UNDER THE ACT - SCOPE OF SECTION 39 - INTERPRETATION OF SECTION 41 - APPLICABILITY OF CIVIL PROCEDURE CODE PROVISIONS - DISTINCTION BETWEEN ORDERS UNDER THE ACT AND UNDER THE CODE - RIGHT OF APPEAL - REVISION.
Fact of the Case:
The Union of India filed an appeal against an order passed by a learned Single Judge of the Delhi High Court modifying a temporary injunction granted in an arbitration proceeding. The Union contended that the order was appealable under section 10 of the Delhi High Court Act, 1966, read with Order XLIII rule 1 (i) of the Code of Civil Procedure.
Finding of the Court:
The court held that the order was not appealable under section 10 of the Delhi High Court Act, 1966, as it was passed under the Arbitration Act, 1940, and not under the Code of Civil Procedure. The court found that section 39 of the Arbitration Act, which provides for appeals from certain orders passed under the Act, was a special law that prevailed over the general law of appeal under the Code of Civil Procedure.
Issues: 1. Whether the order passed by the learned Single Judge was appealable under section 10 of the Delhi High Court Act, 1966? 2. Whether the order was passed under the Arbitration Act, 1940, or under the Code of Civil Procedure? 3. Whether section 39 of the Arbitration Act, 1940, barred the appeal?
Ratio Decidendi: 1. The court held that the order was not appealable under section 10 of the Delhi High Court Act, 1966, as it was passed under the Arbitration Act, 1940, and not under the Code of Civil Procedure. 2. The court found that the order was passed under section 41 of the Arbitration Act, 1940, which incorporates the provisions of the Code of Civil Procedure into the Arbitration Act. However, the court held that section 39 of the Arbitration Act, 1940, which provides for appeals from certain orders passed under the Act, was a special law that prevailed over the general law of appeal under the Code of Civil Procedure. 3. The court held that section 39 of the Arbitration Act, 1940, barred the appeal.
Final Decision: The court dismissed the appeals on the preliminary ground that they were not maintainable.
( 1 ) AFTER the dis2pute arising from a contract between the parties was referred to arbitration by an order passed under section 20 of the Arbitration Act, 1940 (hereinafter called the Act) by this Court, a further order of temporary injunction against the Union of dia was passed by a learned Single Judge of this Court. The Union of India then made an application purporting to be under Order XXXIX rule 4 read with section 151 of the Code of Civil Procedure for cancellation or variation of the temporary injunction. On this apilication, the temporary injunction was modified to some extent by a learned Single Judge of this Court. The union of this India has come up in appeal against the said order with a view to get the temporary injunction vacated or further modified. The appeal has been filed under section 10 of the Delhi High Court Act, 1966 read with Order XLIII rule l (i) of the Code of Civil Procedure. The respondents, however, contend that the order appealed against having been passed under the Act but not having been made appealable by section 39 thereof, the appeal is not maintainable.
( 2 ) THE right of appeal is a substantive one and has to be given by some statute expressly or by necessary implication. We have to find out, therefore, the particular provision of law which gives the Union of India the right of appeal. Section 4 (1) of the Code of Civil Procedure enacts that "in the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law". Provisions of the Letters Patent of the High Courts have been held to be such "special law". For instance, clause 36 of the Letters Patent of the High Court of Bombay was held to be applicable in preferences to section 98 of the Code to govern an appeal from the original side of the High Court to a third Judge where two Judges had differed. (Bhahidas v. Pai Gulab (1921) 481. A. 181)0. Under sub-section (1) of. section 10 of the Delhi High Court Act, "where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub-section (2) of section 5 on that Court (i. e. , in every suit the value of which exceeds Rs. 50,000. 00) an appeal shall lie from the judgement of the single Judge to a Division Bench of that Court". Section 10 (1) reproduces the relevant provision of the Letters Patent of those High Courts who have ordinary original civil jurisdiction. Section 104 (1) of the Code of Civil Procedure providing for appeals from orders also saves provision of "any law for the time being in force" relating to such appeals. As observed by the Supreme Court in Union of India v. The Mohindra Supply Company, (1962) 3 SCR 497 at 5120, "under the Code, as amended, the view has consistently been taken that interlocutory judgment passed by single judge of Chartered High Courts were appealable under the Letters Patent". The order appealed a gainst would, therefore, have been appealable under section 10 (1) of the Delhi High Court Act, 1966 unless such appeal is barred by section 39 of the Arbitration Act which reads as follows :-
"39, (1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the orders :-
AN order:- (i) superseding an arbitration; (ii) on an award stated in the form of a special case; (iii) modifying or correcting an award; (iv) filling or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceeding where there is an arbitration agreement; (vi) setting aside or refusing to set aside an award;provided that the provisions of this section shall not apply to any order passed by a Small Cause Court.
(2) 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. "
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