The main legal point established is that no appeal lies against an order rejecting an application under Order 39 Rule-3, CPC.

ORDER :

K.R. Mohapatra, J.

This appeal has been filed assailing order dated 18.01.2016 passed by the learned District Judge, Koraput-Jeypore in I.A. No. 1 of 2016 arising out of C.M.A. No.1 of 2016.

2. The appellant filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, ‘the Act’) (CMA No.1 of 2016) praying for an interim protection by restraining the respondent from liquidating /enforcing the bank guarantee offered by the appellant through IDBI Bank, Vishakhapatnam, issued through Karur Vysya Bank Ltd., Seetammadhara, Vishakhapatnam and for other reliefs. Along with the petition under Section 9 of the Act, the appellant also filed a petition under Order 39 Rules 1 and 2, CPC praying inter alia to restrain the respondent from invoking the bank guarantee till disposal of the CMA. Along with the petitioner under Order 39 Rules 1 and 2, CPC, i.e., I.A. No.1 of 2016, the appellant also filed a petitioner under Order 39 Rule-3 to pass an ad-interim order of injunction by dispensing with issuance of notice to the respondent showing urgency in the matter. That petition being rejected, the appellant has come up with this appeal.

3. By order dated 28.01.2016, this Court, while issuing notice on admission in appeal, directed that there shall be no invocation of bank guarantee of the appellant/petitioner till the next date (in Misc. Case No.71 of 2016). The said order is continuing till date. It would be apt to mention here that while issuing notice in the matter, this Court has kept open the question of maintainability of the appeal to be raised at the time of hearing. Thus, the respondent/opposite party on its appearance raised the question of maintainability of the appeal at the outset, which is taken up for consideration.

4. Heard Mr.S.S.Rao, learned counsel for the appellant and Mr.Manoj Mishra, learned Senior Advocate assisted by Mr.Tanmay Mishra, learned counsel for the respondent-Company.

5. Mr.Rao, learned counsel for the appellant placing reliance upon paragraph-11 of the decision of the Hon’ble Supreme Court in the case of A.Venkatasubbiah Naidu Vs. S.Chellappan and others, reported in AIR 2000 SC 3032 contended that order passed either refusing or granting an application under Rule-3 of Order 39, CPC is appeal able one. Mr.Rao further submits that there are two provisions under the Act, namely, Section-9 and Section 17 of the Act, which enable either the Court or the Arbitrator to pass interim orders or make an interim arrangement. Section 9 of the Act empowers the Court to pass interim orders or make interim arrangement in contemplation of an arbitral proceeding. Though the provisions of Section 9 of the Act deals with entertaining an application for interim measure it does not make any provision as to how the interest of the aggrieved party is to be protected before the petition under Section 9 of the Act is taken up on merit. Thus, the application filed for injunction can only be entertained under the provisions of Order 39 Rules 1 and 2, CPC and not otherwise. Thus, the appeal against the said order is maintainable before this Court.

Right of appeal is not inherent one. It is a creature of the statute, and should be considered on interpretation of the relevant provision. Thus, it is to be examined as to whether the appellant has a statutory right to prefer an appeal against rejection of an application under Order 39 Rule-3, CPC. On a plain reading of Section 104 as well as Order 43 Rule-1, CPC, which provides an appeal against order does not include an order of rejection of an application under Order 39 Rule-3, CPC.

Law is no more res integra on this issue. This Court in a decision in the case of Sri Rabindra Kumar Mohanty Vs. Smt. Sujata Mohapatra (FAO No.86 of 2012 disposed of on 10.07.2015) relying upon A.Venkatasubbiah Naidu (supra) as well as decisions reported in 1989 (II) OLR 455 and AIR 1993 (Orissa) 78 held as under:-

“6. In view of the discussion made above and the law laid down (s