C.K. Thakker, C.J.
1. This Letters Patent Appeal is filed against an Order passed by the learned Single Judge dated February 1, 2002 in Arbitration Application No. 15 of 2001 making appointment of an Arbitrator.
2. By the impugned order, the learned Single Judge appointed Hon'ble Mr. Justice M.S. Jamdar, a retired Judge of this Court, as an Arbitrator to resolve the disputes and differences between the parties, in the place of Hon'ble Mr. Justice B.N. Deshmukh, a retired Chief Justice of this Court.
3. We have heard the learned counsel for the parties.
4. It is not in dispute by and between the parties that the case is governed by the Arbitration Act, 1940 (hereinafter referred to as 'the Act'). Certain orders passed under the Act were made appealable only under Section 39 of the Act. Section 39 read thus :
'39. Appealable orders. -- An appeal shall lie from the following orderspassed under this Act (and from no others) to the Court authorised bylaw to hear appeals from original decrees of the Court passing the order :An order -
(i) suspending (sic superseding) an arbitration;
(ii) on an award stated in the form of a special case;
(iii) modifying or correcting an award;
(iv) filing or refusing to file an arbitration agreement;
(v) staying or refusing to stay legal proceedings 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 orderpassed by Small Cause Court.
(2) No second appeal shall lie from an order passed in appeal under thissection, but nothing in this section shall affect or take away any right toappeal to the Supreme Court.'
5. Bare reading of the above provision makes it clear that certain orders passed under the Act were made appealable, as specified in Clauses (i) to (vi). Regarding other orders, it was expressly provided that no appeal lies by using the expression 'and from no others'. It is also not in dispute that the order impugned in the present petition does not fall in any of the categories specified in Clauses (i) to (vi).
6. The learned counsel for the respondent, therefore, raised a preliminary objection that a Letters Patent Appeal filed against the order passed by the learned Single Judge is not maintainable, and deserves to be dismissed only on that ground.
7. The learned counsel for the appellant did not dispute the legal position. He, however, strongly relied upon a decision of the Supreme Court in Vinita M. Khanolkar v. Pragna M. Pai and Ors., : AIR1997SC4415 . According to the learned counsel, a similar question arose before the Apex Court in Vinita Khanolkar. There, a suit was filed invoking the provisions of Section 6 of the Specific Reliefs Act, 1963, and an order was passed by a Single Judge of this Court, which was carried by filing a Letters Patent Appeal. The Division Benchof this Court held that a Letters Patent Appeal was not maintainable in view of specific bar under Sub-section (3) of Section 6 of the said Act. Sub-section (3) of Section 6 expressly stated that 'no appeal shall lie from any order or decree passed in any suit, except under that section', i.e., Section 6. Accordingly, the appeal was held not maintainable and dismissed on that ground. The aggrieved party approached the Apex Court.
8. It was contended before the Supreme Court that reading Sub-section (3) of Section 6 of the said Act, an appeal before the Division Bench was not maintainable. It was, however, argued that a right of appeal was conferred by Clause 15 of the Letters Patent, and the same could not have been taken away by a legislature by enacting Sub-section (3) of Section 6 in the Act. The Division Bench had thus committed an error of law in holding that the Appeal was not maintainable.
9. Quoting Clause 15 of the Letters Patent applicable to this Court, the Supreme Court held that the High Court was wrong in dismissing the Appeal. The order was accordingly set aside, and the matter was remanded to the High Court to decide the same in accordance with law.
10. Dealing with the provisions of Sub-section (3) of Section 6 in juxtaposition of Clause 15 of the Letters Patent, Their Lordships observed :--
'3. Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would not get excluded unless the statutory enactment concerned expressly excludes appeals under Letters Patent. No such bar is discernible from Section 6(3) of the (Government of India) Act. It could not be seriously contended by learned counsel for the respondents that if Clause 15 of the Letters Patent is invoked then the order would be appealable. Consequently, in our view, on the clear language of Clause 15 of the Letters Patent which is applicable to Bombay High Court, the said appeal was maintainable as the order under appeal was passed by learned Single Judge, of the High Court exercising original jurisdiction of the Court. Only on that short ground the appeal is required to be allowed.'
The endeavour of the learned counsel for the appellant is that while construing and interpreting the provisions of Section 39 of the Act also, this Court will have to bear in mind the ratio laid down in Vinita Khanolkar, and it must be held that the appeal is maintainable, notwithstanding what is stated in Sub-section (1) of Section 39 of the Act.
11. No doubt, the argument is attractive, but, in our opinion, the learned counsel for the respondent is right in placing reliance on the provisions of Section 39 of the Act interpreted by the Supreme Court in State of West Bengal v. Gourangalal Chatterjee, : [1993]3SCR640 . In that case, an identical question arose before the Apex Court as to whether a Letters Patent Appeal would be maintainable before a Division Bench of the High Court against an order passed by a Single Judge of the High Court, when no such right was conferred by the statute. Dealing with the relevant provisions of the Act, and considering earlier decision in Union of India v. Mohindra Supply Co., : [1962]3SCR497 , the Court held that no such Appeal would lie. It is also pertinent to note that MohindraSupply Co. was a case under Section 39 of the Act. A similar view was taken by a Division Bench of this Court in Municipal Corporation of Greater Bombay v. Patel Engineering Co, Ltd., 1994 Mh.LJ. 90 wherein the Division Bench considered Gourangalal Chatterjee, as also other cases, and held that an Appeal would not lie.
12. In view of the fact that the question which came up for consideration before the Supreme Court in Mohindra Supply Co. as well as Gourangalal Chatterjee related to Section 39 of the Act, and the Letters Patent Appeal was held to be not maintainable, in our opinion, the appeal must be dismissed holding that no intra court appeal lies.
13. It is, however, submitted that neither the Supreme Court nor this Court considered the question in the light of the observations of the Supreme Court in a subsequent decision in Vinita Khanolkar in paragraph 3 of the reported decision, which have been extracted hereinabove. In view of the law laid down by the Supreme Court and followed by this Court, we have to hold that the Letters Patent Appeal is not maintainable. Only on that ground, the Letters Patent Appeal deserves to be dismissed, and is hereby dismissed. We may clarify that we may not be understood to have expressed any opinion on merits of the matter.
14. The learned counsel for the appellant, at this stage, makes an oral prayer under Article 134-A of the Constitution of India for grant of certificate for appeal to the Supreme Court. According to him, both the conditions laid down in Article 133 of the Constitution have been complied with, viz.,
(i) the case involves a substantial question of law of generalimportance; and
(ii) in the opinion of the High Court, it needs to be decided by theSupreme Court,
inasmuch as there is a cleavage of opinion on the question as to whether Letters Patent Appeal would be maintainable.
15. In our view, however, the prayer cannot be granted in view of the fact that we are dealing with the provisions of Section 39 of the Act, and on that question, there are two decisions of the Supreme Court in Mohindra Supply Co. and Gourangalal Chatterjee followed by this Court in Patel Engineering Co. Ltd. The question of law is thus settled. The certificate is, therefore, refused.
16. The learned counsel for the appellant finally submitted that the appellant intends to approach the Supreme Court. It is open to it to do so. The counsel, however, prayed that in the circumstances, the orders passed by the learned Single Judge and by us may be kept in abeyance so as to enable the appellant to obtain an appropriate order from the Apex Court. Learned counsel for the respondent stated that if the appellant will seek an adjournment by making an application before the Arbitrator, the respondent will not object to such a prayer. In view of the above statement, in our opinion, no further order is required. Learned counsel stated that one hearing has already been held in past.
17. Parties be given copies of this Judgment duly authenticated by the Sheristedar.
18. Issuance of certified copy is expedited.