ORDER
SHEET GA No.3139 of 2015 With APOT No.460 of 2015 AP No.1156 of 2015 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE RATNENDRA NARAYAN BHADURI Versus CRESPI MILANO PERFUMERIES INDIA PVT.LTD.& ANR BEFORE: The Hon’ble JUSTICE INDIRA BANERJEE The Hon’ble JUSTICE SAHIDULLAH MUNSHI Date : 9th October, 2015.
Appearance: Mr.Sucharita Biswas, Adv.Mr.Debapriya Gupta, Adv.The Court : This appeal is against the order dated 31st August, 2015 passed by the learned Single Bench in a request under Section 11 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as ‘the 1996 Act’.
By the order impugned the learned Single Bench has appointed an Advocate of this Court as Arbitrator at a consolidated remuneration of Rs.3 lakhs to be shared by the parties equally at the fiRs.instance subject to any directions in this regard that might be contained in the final order.
Ms.Biswas appearing on behalf of the appellant submits that the appellant does not have the financial capacity to pay the remuneration of the learned Arbitrator.
Section 37 of the 1996 Act provides that an appeal shall lie only from orders granting or refusing to grant any measure under Section 9; or any order setting aside or refusing to set aside an arbitral award under Section 34 and from no otheRs.An appeal might also lie to a Court from an order of an Arbitral Tribunal accepting the plea referred in Sub-Section (2) or Sub-Section (3) of Section 16; or granting or refusing to grant an interim measure under Section 17.
Appeals from such order of the Arbitral Tribunal are heard by the Single Bench of this Court.
Section 37 of the 1996 Act provides as follows: “37.
Appealable orders.- (1) An appeal shall lie from the following orders (and from no otheRs.to the Court authorized by law to hear appeals from original decrees of the Court passing the order, namely :(a) granting or refusing to grant any measure under section 9; (b) setting aside or refusing to set aside an arbitral award under section 34.
(2) An appeal shall also lie to a Court from an order of the arbitral tribunal – (a) accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or (b) granting or refusing to grant an interim measure under section 17.
(3) 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.” Section 37 of the 1996 Act is in pari materia with Section 39 of the Arbitration Act, 1940 which provided as follows:“39.
APPEALABLE ORDER
S.- (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 order: 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) 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 order passed by 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]..” In Union of India versus The Mohindra Supply Co.reported in AIR1962SC256the Supreme Court held: “There is no warrant for assuming that the reservation clause in S.104 of the Code of 1908 was as contended by counsel for the respondents, “superfluous” or that its “deletion from S.39(1) has not made any substantial difference” : the clause was enacted with a view to do away with the unsettled state of the law and the cleavage of opinion between the Allahabad High Court on the one hand and Calcutta, Bombay and Madras High Courts on the other on the true effect of S.
588 of the Code of Civil Procedure upon the power conferred by the Letters Patent.
If the legislature being cognizant of this difference of opinion prior to the Code of 1908 and the unanimity of opinion which resulted after the amendment, chose not to include the reservation clause in the provisions relating to appeals in the Arbitration Act of 1940, the conclusion is inevitable that it was so done with a view to restrict the right of appeal within the strict limits defined by S.39 and to take away the right conferred by other statutes.
The Arbitration Act which is a consolidating and amending Act, being substantially in the form of a code relating to arbitration must be construed intended without to alter any assumption the law that relating to it was not appeals.
The words of the statute are plain and explicit and they must be given their full effect and must be interpreted in their natural meaning, uninfluenced by any assumptions derived from the previous state of the law and without any assumption that the legislature must have intended to leave the existing law unaltered.
In our view the legislature has made a deliberate departure from the law prevailing before the enactment of Act X of 1940 by codifying the law relating to appeals in S.
39.” The Arbitration Act 1940 has been repealed and replaced by the 1996 Act.
The Supreme Court, as well as the Special Bench of this Court have, on considering the words “an appeal shall lie from the following orders (and from no otheRs.to the Court authorized by law to hear appeals from original decrees of the Court passing the order…..” in Section 39(1) of the Arbitration Act, 1940, held that no appeal would lie under the Letters Patent, against an order from which no appeal lay under Section 39 of the said Act.
The same words have been retained in Section 37(1) of the 1996 Act.
As held by a Constitutional Bench of the Supreme Court in P.
Vajravelu Mudaliar versus The Special Deputy Collector for Land Acquisition, West Madras and Anr.
reported in AIR1965SC1017 where the legislature uses in an Act, an expression which has received judicial interpretation, it must be assumed that the expression is used in the sense in which it has been judicially interpreted, unless a contrary intention appeaRs.In FueRs.Day Lawson Limited versus Jindal Exports Limited reported in (2011) 8 SCC333the Supreme Court referred to and relied upon Union of India v.
Mohindra Supply Co.(supra) and held:“89.
It is, thus, to be seen that Arbitration Act, 1940, from its inception and right through to 2004 (in P.S.Sathappan) was held to be a self-contained code.
Now, if the Arbitration Act, 1940 was held to be a self-contained arbitration, the code, on matters Arbitration and pertaining Conciliation to Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL MODEL must be held only to be more so.
Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lucid expression of Tulzapurkar, J., that it carries with it “a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done.” In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a selfcontained code the applicability of the general law procedure would be impliedly excluded.” In FueRs.Day Lawson Limited versus Jindal Exports Limited (supra).the Supreme Court has clearly held that no appeal would lie under Clause 15 of the Letters Patent against an order which is not appealable under Section 37 of the 1996 Act.
Ms.Biswas cited SBP & Co.versus Patel Engineering LTD.& Anr.
(2005).SCC618 In the aforesaid case, the majority clearly decided that an order passed by the Chief Justice of the High Court or by the designate order, and an appeal would Judge of that Court was a judicial lie against that order only under Article 136 of the Constitution to the Hon’ble Supreme Court.
After the judgement of the Supreme Court in M/s SBP & Co.versus M/S.Patel Engineering LTD.reported in (2009) 10 SCC293 it is settled that no appeal would lie to a Division Bench of the High Court against an order under Section 11 of the 1996 Act.
The decision would have to be challenged in the Supreme Court.
The appeal and the stay application are dismissed.
(INDIRA BANERJEE, J.) (SAHIDULLAH MUNSHI, J.) cs