Non-compliance with a direction under one act leading to the dismissal of an application under another act can render the resulting order appealable under the provisions of the latter act.

Arun Mishra, J.

1. Writ petitions have been filed as against order (P-1), dated 3-7-2009 dismissing the application preferred under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to 'Act of 1996'). Under Section 19 of the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as 'the Act of 2006') direction was issued to make the deposit of amount which order was not complied with. Due to non-compliance of the order, ultimately, the main applications under Section 34 of the Act of 1996 were dismissed by the 6th Addl. District Judge, Bhopal in the aforesaid cases, which orders have been impugned in these writ petitions.

2. A preliminary objection has been raised by Shri Pushpendra Kaurav, learned Counsel appearing on behalf of the respondent No. 1 that an appeal lies under the provision of Section 37 of the Arbitration and Conciliation Act, 1996 as against an order passed under Section 34(1)(b) of 1996 Act. He has placed reliance on decision of the Apex Court in Essar Constructions v. N.P. Rama Krishna Reddy (2000) 6 SCC 94.

3. Shri Priyank Jain, learned Counsel appearing on behalf of the petitioners has submitted that it was an adjudication on an application under Section 19 of the Act of 2006, due to non-compliance of which order the main application under Section 34 of the Arbitration and Conciliation Act, 1996 has been dismissed. The dismissal is not on the ground contemplated under Section 34 of the Arbitration and Conciliation Act, 1996. Thus, it would not amount to an order which is appealable under Section 37 of the Arbitration and Conciliation Act, 1996.

4. Section 19 of the Act of 2006 is quoted below:

19. Application for setting aside decree, award or order.- No application for setting aside any decree, award or other order made either by the Council itself or by any institution or centre providing alternate dispute resolution services to which a reference is made by the Council, shall be entertained by any Court unless the appellant (not being a supplier) has deposited with it seventy five per cent of the amount in terms of the decree, award or, as the case may be, the other order in the manner directed by such Court: Provided that pending disposal of the application to set aside the decree, award or order, the Court shall order that such percentage of the amount deposited shall be paid to the supplier, as it considers reasonable under the circumstances of the case subject to such conditions as it deems necessary to impose.

It is clearly provided in the aforesaid Section 19 of the Act of 2006 that no application setting aside any decree, award or other order shall be entertained by any Court unless the appellant has deposited with it seventy five per cent of the amount in terms of the decree, award or, as the case may be, the other order in the manner directed by such Court. In view of specific provision contained with respect to maintainability of appeal, the provision of Section 19 of the Act of 2006 has to be read together and applied to the provision of Section 34 of the Act of 1996 as a condition which is prerequisite to be complied with.

5. The provision of the Sections 34 and 37 quoted below:

34. Application for setting aside arbitral award.- (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with Sub-section (2) and Sub-section (3).

(2) An arbitral award may be set aside by the Court only if-

(a) the party making the application furnishes proof that-

(i) a party was under some incapacity; or

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iv) the arbitral award deals with a