Muzaffar Hussain Attar, J.—

1. The appellant filed an application for grant of interim relief Under section 9 of Arbitration and Conciliation Act of 1997(for short Act of 1997). This application was dismissed by the learned Principal District Judge, Anantnag, vide order dated 28.06.2011. The appellant feeling aggrieved of the said order, challenged the same in Statutory Appeal No. 02/11, which appeal was dismissed by the Id Single Judge on 11th July 2011. The appellant in order to vindicate his legal rights has filed this LPA praying therein that the impugned judgment/orders be set aside and his application filed u/s 9 of the Act of 1997 be allowed.

2. The court on 12th Sept. 2011 while modifying the earlier interim order, provided that question about the maintainability of Letters Patent Appeal would be considered at the time of hearing of the appeal.

Mr. Allau din Ganaie, Ld Dy. AG, raised preliminary objection about the maintainability of this LPA on the ground that after dismissal of statutory appeal filed by the appellants u/s 37 of the Act of 1997, in view of the language of the said Section, no further appeal can be filed in this court. Ld counsel in this behalf referred to section 37(3) of the Act of 1997. Id counsel in support of his contention referred to and relied upon the judgment of the Hon'ble Supreme Court in case titled P.S. Sathappen v. Andra Bank Ltd reported in 2004 SC 5152 and the judgment of the Hon'ble Supreme Court reported in AIR 2011 SCW 4047 (AIR 2011 SC 2649) case titled Fuerst Day Lawson Ltd v. Jindal Exports Ltd and other connected cases. Ld counsel also referred to the Division Bench judgment of this court in case titled Gh. Rasool Chaku & Ors v. Gh. Ahmad Chaku and others LPA No. 273/09 decided on 7th July 2011. Ld counsel also referred to, the case title G.M. Pampori v. State of J&K and ors, reported in AIR 2001 JK 18 and submitted that LPA being not maintainable merits dismissal.

3. Mr. R.A. Jan, Id Sr. counsel appearing on behalf of the appellants with all his eloquence and vehemence submitted that LPA is maintainable. Ld counsel referred to Section 37 (1 & 3) of the Act of 1997 and submitted that on the plain language of the Section 37 (1 & 3) the right to file LPA, which has been given under the charter of the High court, has not been taken away. Ld counsel submitted had it been intention of the legislatures to take away the right to file LPA they would have specifically mentioned the same in the Section 37 of the Act of 1997. Ld counsel was at pains to explain that the expression used in Section 37 (1) of the Act of 1997 that appeal shall lie from the orders mentioned therein "and from no others" would mean that appeal under the said provision could be filed only in respect of the orders mention whereof is made at (a), (b) of (1) (2) of section 37 of the Act of 1997, and in view of the language used in the said provision of law- appeal against the other orders would not be competent. Ld counsel submitted that Sub section (3) of Section 37 of the Act of 1997, bars filing of a second appeal from the order passed on appeal under the said section, but it does not take away the right to file an LPA. Ld counsel also referred to Section 50 of the Arbitration and Conciliation Act of 1996 (for short Act of 1996), Central Act, and submitted that the law laid down in Fuerst Day case was passed on consideration of Section 50 of the Act of 1996. Ld counsel submitted that the provisions of Section 37 of the Act of 1997 and Section 50 of the Act of 1996, operate in different circumstances and are not similar. Ld counsel submitted that the judgment(s) (supra) are of no help to the respondents for seeking declaration that this appeal is incompetent. Ld counsel further submitted that power of the High Court in hearing an LPA is akin to Constitutional power. Ld counsel submitted that the jurisdiction and power to hear an LPA cannot be taken away impliedly but can be taken away if there is express bar in the Stat

Click Here to Read the rest of this document