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Hari Shankar Gupta Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 91 of 1969
Judge
Reported inILR1974Delhi771; 1974RLR335
ActsArbitration Act, 1940 - Sections 39; Delhi High Court Act, 1966 - Sections 10
AppellantHari Shankar Gupta
RespondentUnion of India
Advocates: B.L. Aggarwal,; D.P. Sharma,; R.L. Tandon and;
Cases ReferredDelhi University v. N. K. Said (supra
Excerpt:
arbitration act (1940) - section 39, delhi high court act. 1966--section 10, letters patent, clause 10. scope and extent of--application under sections 14(2) & 17 of the act dismissed as time barred--judgment thereof ,whether has the effect of settig aside the award--appeal against--whether competent, under any of the above provisions--distinction between setting aside an award and refusing to making it a rule of the court.; that the judgment of the learned single judge dismissing the application of the appellant as being barred by time does not amount to setting aside the award within the meaning of the expression used in clause (vi) of sub-section (1) of section 39 and was, thereforee, not appealable under section 39 of the act and although the judgment was a 'judgment' within the.....h. l. anand, j.(1) the question that arises in this appeal under section 39 of the indian arbitration act, 1940 (hereinafter called 'the act') and section 10 of the delhi high court act, 1966 (hereinafter called 'the high court act') is as to its maintainability either under section 39 of the arbitration act or under section 10 of the high court act or under clause 10 of the letters patent. the appeal has been filed in the following circumstances : (2) the appellant had entered into a contract with the regional director (food), northern region, new delhi for handling/transporting work at central storage depot, shahjahanpur. the contract contained an arbitration clause and pursuant to certain disputes that arose between the parties, the same were referred to an arbitrator in terms of the.....
Judgment:

H. L. Anand, J.

(1) The question that arises in this appeal under Section 39 of the Indian Arbitration Act, 1940 (hereinafter called 'the Act') and Section 10 of the Delhi High Court Act, 1966 (hereinafter called 'the High Court Act') is as to its maintainability either under Section 39 of the Arbitration Act or under Section 10 of the High Court Act or under clause 10 of the letters Patent. The appeal has been filed in the following circumstances :

(2) The appellant had entered into a contract with the Regional Director (Food), Northern Region, New Delhi for handling/transporting work at Central Storage Depot, Shahjahanpur. The contract contained an arbitration clause and pursuant to certain disputes that arose between the parties, the same were referred to an Arbitrator in terms of the contract who, by an Award made on December 6, 1966 awarded a sum of Rs. 78.212.20 in favor of the appellant. On the same day, the Arbitrator issued a notice to the appellant and the Union of India, respondent herein, informing them that he had made and signed the Award on the same day. The notice added that 'a signed copy of the award is enclosed herewith. The parties are authorised to file the signed copy in court on my behalf.' On February 27. 1968 the appellant made an application to the Arbitrator requesting him to file the Award in Court so that it may be caused to be made a rule of the Court but the application of the appellant was turned down by the Arbitrator by his order of February 28,1968 on the ground that there was no justification to acceed to the request after a lapse of more than one year of the making of the Award. A review was then sought of the said order on April 17, 1968 in which it was prayed in the alternative that the appellant may be supplied with a signed copy of the Award as also a letter of authority authorising the appellant to file the Award in Court on behalf of the Arbitrator as the signed copy and the letter of authority given to the appellant earlier, when the Award was made and signed, was stated to have been lost and could not be traced. This application was dismissed of by an order made on April 18, 1968 by which while the prayer for review was. turned down, it was directed that a signed copy of the Award and a copy of the letter of authority may be furnished to the appellant's counsel, pursuant to which a signed copy of the award with a copy of the letter of authority was furnished to the said counsel.

(3) On April 30, 1968 the appellant filed an application under Section 14(2) and 17 of the Arbitration Act in this Court and the signed copy of the Award and a copy of the letter of authority was enclosed with it and it was stated that the appellant had been fully authorised to file the signed copy of the Award on the basis of the aforesaid letter of authority and that the same had been filed on behalf of the Arbitrator. The relief prayed for in the application was for notice of the filing of the Award being given to the parties, the original Award on the Stamped paper together with the proceedings being called for from the Arbitrator and the Award being made a rule of the Court after the requisite time for objections had expired. No notice of this application was issued to the Union. A direction was, however, made requiring the Arbitrator to file the Award and the proceedings and on this direction being complied with notice of the filing of the Award and the proceedings was issued to the Union pursuant to which it filed objections under Section 30/33 of the Act.

(4) The application was resisted on behalf of the respondent in the course of the objections, inter alia, on the ground that the application was barred by time : that the Award was not stamped and was, thereforee, invalid; that the action of the Arbitrator in authorising the filing of the Award after rejecting the appellant's application was tantamount to a review of the earlier order and was without jurisdiction and illegal.

(5) On the pleadings of the parties, the learned Single Judge framed the following issues :

(1)Whether the application under Sections 14 and 17 of the Arbitration Act, 1940 is barred by time? (O.P.P.) (2) Is the award unstamped and if so, what is its effect (O.P.P.) (3) Whether the respondent is not competent to take up the plea regarding the award being unstamped (O.P.P.) (4) Whether the arbitrator reviewed his order dated 22-2-1968 and if so, what is its effect (O.P.P.) (5) Relief.

(6) By the judgment of September 30, 1969, under appeal, the learned Single Judge decided issue No. 1 against the appellant holding that the appellant had filed the application for the filing of the Award on his own behalf and could not be said to have filed it on behalf of the Arbitrator on the basis of the letter of authority and that the application was, thereforee, barred by time by virtue of the provisions of Article 119(a) of the Limitation Act, 1963. Issue No. 2 was decided in favor of the appellant and it was held that the Award, though admittedly unstamped, could nevertheless be made a rule of the Court on payment of the requisite deficiency and penalty. Issues No. 3 and 4 were decided in favor of the appellent but as a result of the decision on issue No. 1, issue No. 5 was decided against the appellant and the application was dismissed as being barred by time, leaving the parties to bear their respective costs.

(7) Aggrieved by the aforesaid judgment, the appellant has come up in appeal.

(8) A preliminary objection was raised on behalf of the respondent at the outset that the appeal was not maintainable and that the same was, thereforee, liable to be dismissed on that ground.

(9) In support of the preliminary objection, learned counsel for the respondent contended that Section 39 of the Act was exhaustive of the orders passed under the Act against which an appeal was maintainable and that the order dismissing the appellant's application under Section 14(2) and 17 of the Act as being barred by time was beyond the scope of Section 39 and an appeal under Section 30 was, thereforee, not maintainable against the order. He further contended that the judgment of the learned Single Judge, though a 'judgment' within the meaning of Section 10 of the High Court Act as also clause 10 of the Letters Patent, was nevertheless not appealable under any of the said provisions because of the provisions of sub-section (1) of Section 39 which in terms excluded all orders other than these mentioned in Section 39 from the purview of any appeal whether under the Act or under any other provision of law and placed reliance in support of his contention on an unreported judgment of the Supreme Court in the case of Balram & Anguri Devi, Civil Appeals Nos. 719 of 1962 and Iii of 1965, decided on February 17, 1965 (1) ; decision oF the Supreme Court in the case of Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Hingashetti and others, : [1962]2SCR551 : two Full Bench judgments of this Court in the case of University of Delhi and another v. Hafiz. Mohd. said and others, : AIR1972Delhi102 and of Union of India v. A. S. Dhupia and another, Air 1972 Delhi 103 and a Division Bench Judgment of this Court in the case of Union of India and others v. M/s. N.K. Pvt. Ltd. and another, : AIR1972Delhi202 .

(10) Learned counsel for the appellant, on the other hand, contended that :

(I)the judgment was appealable under Section 39 of the Act as it had the effect of 'setting aside the Award' in terms of the expression used in clause (vi) of sub-section (1) of that Section; (ii) the judgment being admittedly a 'judgment' within the meaning both of Section 10 of the High Court Act and of clause 10 of the Letters Patent, was nevertheless appealable under these provisions and that the provision of Section 39 of the Act was not intended to restrict or take away the right of appeal that may have been conferred by any other law.

(11) In support of his contention on the first point, the appellant placed reliance on : AIR1959All777 . In support of his contention on the second point, learned counsel relied upon : [1971]1SCR783 .

(12) After hearing learned counsel for the parties, it appears to us that the judgment of the learned Single Judge dismissing the application of the appellant as being barred by time did not amount to setting aside the Award within the meaning of the expression used in clause (vi) of sub-section (1) of Section 39 and was, thereforee, not appealable under Section 39 of the Act and although the judgment was a 'Judgment' within the meaning of clause (10) of the Letters Patent and may be assumed to be so within the meaning of Section 10 of the High Court Act, would nevertheless not be appealable under the said provisions by virtue of the bar provided in Section 39(1) of the Act to appeals from orders other than those set out in it.

(13) An Award made by an Arbitrator or Arbitrators or, in the case of a reference to an Umpire, by the Umpire, under the provisions of the Act represents the final adjudication of the disputes between the parties which formed the subject matter of the reference which led to the making of it and unless it was set aside by the Court under Section 30 or 33 of the Act, was final and binding on the parties and persons claiming under them by virtue of clause 7 of the First Schedule to the Act which incorporates the implied conditions of an arbitration agreement. The Award, is, however, neither a decree nor an executable order and cannot, thereforee, be enforced or executed by its own force unless it is made a rule of the Court under Section 17 of the Act and a decree is passed in terms thereof.

(14) It is no doubt correct that where, as in the present case, an Award though granting to the appellant monetary relief, could not be made a rule of the Court because the appellant's application for making the Award a rule of the Court was dismissed as being out of time, the appellant would have no possible means to enforce it or to execute it except, possibly, if the Arbitrator made an application for the Award being made a rule of the Court, should such an application be still maintainable, it is nevertheless not possible to accept the contention of the appellant that the dismissal of the appellant's application had the effect of 'setting aside' the Award in terms of the expression used in clause (vi) of sub-section (1) of Section 39 and this is so because the Award exists both in fact and in law, bound the parties to it and those claiming under them and would bar any proceedings having their foundation in the cause of action which formed subject matter of the reference. The right of a party to a relief and the remedy to enforce it are two distinct concepts. Normally, for every right there is a remedy in law but if a party has no remady to enforce a right either because it has failed to avail of it within the time allowed by law or on account of any other impediment, the non-existence of the remedy would not be destructive of the right, a claim barred by time is nevertheless a vailed claim although incapable of being enforced by a suit.

(15) In the case of Uttam Singh Dugal and Co. v. Union of India, Civil Appeal No. 162 of 1962, decided on October Ii, 1962 (6), the Supreme Court had an occasion to consider the affect of an Award and stated the position thus :

'THEtrue legal position in regard to the effect of an award is not in dispute. It is well settled that as a general rule, all claims which are the subject-matter of a reference to arbitration merge in the award which is pronounced in the proceedings before the arbitrator and that after an award has been pronounced, the rights and liabilities of the parties in respect of the said claims can be determined only on the basis of the said award. After an award is pronounced, no action can be started on the original claim which had been the subject-matter of the reference. As has been observed by Mookerjee J. in the case of Hajahari Saha Banikya v. Behary Lal Basak, (1909) 33 Cal 881, 'the award is,-in fact, a final adjudication of a Court of the parties' own choice, and until impeached upon sufficient grounds in an appropriate proceeding, an award, which is on the face of it regular, is conclusive upon the merits of the controversy submitted, unless possibly the parties have intended that the award shall not be final and conclusive...'.

(16) In the aforesaid case, the question as to the effect of an Award arose in the context of the contention that certain disputes, which were sought to be referred to arbitration, were not new disputes because they were disputes with regard to claims which should have been made before the Arbitrator in a previous reference which had since resulted in an Award.

(17) In the case of Satish Kumar and others v. Surinder Kumar and others, : [1969]2SCR244 the question that fell for consideration was whether an Award under the Act in a private reference required registration. The aforesaid observations of the Supreme Court in the earlier case of Uttam Singh Dugal & Co. (supra) were quoted with approval by Sikri J., as he then was, in the main judgment, speaking for the Court. The legal position of the effect of an Award was stated in that Case by Hegde J., as he then was in a separate, though concurring, judgment thus :

'THEaward does create rights in that property but those rights cannot be enforced until the award is made a decree of the Court. It is one thing to say that a right is not created, it is an entirely different thing to say that the right created cannot be enforced without further steps. For the purpose of Section 17(1)(b) of the Registration Act, all that we have to see is whether the award in question purports or operates to create or declare, assign, limit or extinguish whether in present or future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immoveable property. If it does, it is compulsorily registrable. In the aforementioned Full Bench decisions sufficient attention has not been given to Section 17 of the Registration Act. The focus was entirely on the provisions of the Arbitration Act and there again on the enforcement of the award and not in the making of the award. A document may validly create rights but those rights may not be enforceable for various reasons. Section 17 does not concern itself with the enforcement of rights. That Section is attracted as soon as its requirements are satisfied. There is no gain saying the fact that the award with which we are concerned in this case, at any rate, purported to create rights in immoveable property of the value of rupees more than one hundred. Hence it is compulsorily registrable.'

(18) In the case of Balram and Anguri Devi and others, Civil Appeals Nos. 719 of 1962 and Iii of 1965, decided on February 17, 1965, (1) the question before the Supreme Court was whether a Letters Patent Appeal filed before a Division Bench of this Court against the appellate order of the learned Single Judge of this Court under Section 39(2) of the Act was competent and while affirming the earlier decision of the Court in the case of Union of India v. Mohindra Supply Company : [1962]3SCR497 , it was held that no second appeal was competent under Section 39(2) of the Act. It was further held that the appeal before the learned Single Judge itself under Section 39(1) of the Act was not competent because the order passed by the trial Court, which was subject matter of the First Appeal merely dismissed the appellant's application under Section 14 of the Act which was not appealable under Section 39(1) of the Act, The application of the appellant in that case had been dismissed by the trial Court on the ground that being an application under Section 14 of the Act by a party to the proceedings of arbitration, was barred by time. Although Mr. Radhey Lal Aggarwal is right in his contention that the question whether or not, the dismissal of an application under Section 14 of the Act was or was not tantamount to setting aside an Award was not in terms raised or decided in that case and that the learned counsel for the appellant in that case had conceded that the appeal before the learned Single Judge was not maintainable under Section 39(1) of the Act, that by itself does not take away the efficacy of the decision of the Supreme Court that an order of the trial Court dismissing an application under Section 14 of the Act as being out of time was not appealable under Section 39(1) of the Act and the aforesaid decision, thereforee, was an authority for the aforesaid proposition.

(19) The cases cited on behalf of the appellant in support of the contention that an order dismissing the application under Section 14 as being barred by time was tantamount to setting aside an Award are clearly distinguishable except the Punjab case, with which, with respect, we are unable to agree.

(20) In Jagdish Mahton and others v. Sundar Mahton and others, : AIR1949Pat393 , a Division Bench of the Patna High Court was concerned with the situation in which in the course of proceedings initiated on an application under Section 14 of the Act for filing the Award, a plea was raised by the respondent denying the existence of the Award and alleged that it was a forgery. Allegations of fraud were also made. The application was dismissed on the basis of a finding, after admitting evidence, that there was no award at all. The contention of the respondent that the appeal was not maintainable was dispelled and it was held that the order had the effect of setting aside the Award. The decision is clearly distinguishable because by holding that there was no Award, the trial Court had virtually set aside the Award and an order under Section 14 on the basis of such a finding was obviously tantamount to setting aside the Award because until such an order was set aside, it was not open to the appellant to contend in any proceedings that there was a valid award in existence. The application in that case under Section 14 of the Act had not been thrown out as being out of time but because the trial Court found that there was no valid Award in existence. The impugned order in the present case merely dismissed the application as being out of time and leaves the Award untouched.

(21) In the case of Nawab Syed Hasan Ali Khan v. Nawab Askari Begam, : AIR1959All777 , Division Bench of the Allahabad High Court was concerned with a case in which an application under Section 14 of the Act was dismissed by the trial Court, after the Award and the proceedings had been filed in Court and the objections to the Award being made a rule of the Court had been filed and tried, on the ground that 'the award was given beyond time' and it was in this context that it was held that such an order was appealable and with respect, correctly so in our view, because on the finding that the Award was beyond time it ceased to be a valid Award and such an order was, thereforee, tantamount to setting aside the Award. The case is clearly distinguishable from the facts of the present case where the impugned order leaves the Award unaffected.

(22) In the case of Gopal Das v. S. Kesar Singh, Air 1966 J&K; 133, a Single Judge of that Court was concerned with the question whether an order of the trial. Court making an Award a rule of the Court without giving notice of the filing of the Award to the other side and calling for objections to it, was appealable and it was held that such an order amounted to refusal to set aside the Award, within the meaning of clause (vi) of sub-section (1) of Section 39 of the Act. This case is also distinguishable because the order passing a decree on the basis of the Award without any notice to the other side of the filling of the Award and without giving an opportunity to the other side to get the Award set aside, had the effect of refusal to set aside the Award and can be of no assistance to the appellant in the present case.

(23) In the case of Maheshwar Misra v. Laliteshwar Prasad Singh and others, : AIR1967Pat407 , a Full Bench of that Court was concerned with the question whether an order of the trial Court dismissing an application under Section 14 of the Act, after the Award and the proceedings had been filed and the objections had been tried, on the ground that the 'the award was not a genuine document' was held to be appeallable on the ground that although the trial Court did not use the expression that the Award was set aside yet the effect of the order was to set it aside and it was held that the question whether a particular order of the Court was appealable under Section 39 or not depended on the effect of the order and that such effect was the true test of appealability. This case is also distinguishable because on the finding that the Award was not a genuine document, it could not be said that the Award survived the application, which could not, however, be said of the Award in the present case after the impugned order was made.

(24) In the case of Balwant Singh and another v. Partap Singh Jawala Singh and others, , a Single Judge of that Court was concerned with the question whether an Arbitrator need make an application for permission to file the Award in Court and it was held that no such application was necessary and such an application was a mere surplusage and no question of dismissing such an application as barred by time could possibly arise. It was further held that 'the substantive effect of the order of the trial Court is no more but to set aside the award because it has refused to make it a rule of the Court and immediately the order of the trial Court comes within the scope and ambit of clause (vi) of sub-section (1) of Section 39 of the Act. In that case, one of the Arbitrators made an application to the Court for a direction to the other Arbitrator to file the Award in Court and for the Award being made a rule of the Court. This application was, however, returned on the ground that the Court had no jurisdiction to entertain it, on which an application Along with the Award which had since been filed on a notice from the Court, was filed in another Court and on notice of the application to the parties, two motions were made, one for making the Award a rule of the Court and the other for the Award being set aside. The trial Court found that the application for filing the Award had been made beyond time and dismissed it. The First Appellate Court came to the conclusion that the order was not appealable under Section 39 of the Act on the ground that the order dismissing the application for filing the Award as being barred by time did not amount to setting aside or refusing to setting aside the Award. The appellate order was set aside by the High Court on the ground that an application by Arbitrator for the filing of an Award was a surplusage and the Award having been in fact filed, there was no question of such an application being dismissed as being barred by time, and that the trial Court was, thereforee, bound to consider whether or not to make the Award a rule of the Court and that the order dismissing the application was tantamount to refusing to make it a rule of the Court even though a motion for such an order had been made and that the order dismissing the application was tantamount to setting aside the Award inasmuch as the Court refused to make it a rule of the Court. It appears to us that this decision apparently supports the contention of the appellant but does not seem to us to lay down the law correctly, and we say so with respect. There is a clear distinction between setting aside an Award or refusing impliedly or expressly or failing impliedly or expressly to make it a rule of the Court. A reference to the various clauses of sub-section (1) of Section 39 clearly recognised the distinction between setting aside an Award and merely refusing to make it a rule of the Court. An order refusing to make an Award a rule of the Court may be made for various reasons and one such reason would be that there was no proper application or the Award was not before the Court. In such case, the order dismissing the application under Section 14 of the Act or an order refusing it to make a rule of the Court because there is no Award before the Court would not have the effect of setting aside the Award which was still valid and binding between the parties. There are cases in which refusal to make the Award a rule of the Court may be tantamount to setting aside the Award as for example where the refusal was based on a finding that there was no Award in existence or that the document purporting to be an Award was a forgery or that it was not genuine as in some of the cases referred to above. But whether an order dismissing an application under Section 14 or an order otherwise refusing to make the Award a rule of the Court but without touching the Award or adjudicating about its validity and existence cannot be said to be tantamount to setting aside the Award. We do not agree with the reasoning adopted by the learned Judge 'that the substantive effect of the order of the trial Court is no more but to set aside the Award because it has refused to make it a rule of the Court.' In our view the order of the trial Court in that case left the Award wholly untouched and whatever else may be said about that order and its correctness, it could not be said that it had the effect, 'substantively' or otherwise of setting aside the Award.

(25) Reference may also be made to the cases in which in somewhat similar circumstances, it was held that the dismissal of an application under Section 14, either as being barred by time or on the principle of rest judicata or otherwise but without adjudicating about the validity or existence of the Award, was not tantamount to setting aside the Award and be appealable under Section 39 of the Act.

(26) In the case of Narayan Prasad Ganesh Prasad v. Mohan Lal Sheodutt and another, Air 1951 Nag 297, a Division Bench of the Nagpur High Court held that an order refusing to file an Award as distinct from an order refusing to file an arbitration agreement was the Nagpur High Court held that an order refusing to file an Award as distinct from an order refusing to file an arbitration agreement was not an appealable order. It was held that the scope of Section 39 was very limited. The order refusing to file an Award was not appealable because such an order did not fall in any of the categories mentioned in sub-section (1) of Section 39 of the Act. It is, however, not clear from the report as to the ground on which Court declined to file the Award.

(27) In the case of Nawabzada S. M. Ali Dabir and another v. Nawabzada S. M. Ali Kabir Khan and others, : AIR1964All185 , a Single Judge of the Allahabad High Court held that an order dismissing an application for filing an Award under Section 17 as being not maintainable, was not one covered by any six clauses of sub-section (1) of Section 39 of the Act and was, thereforee, not appealable as it could not be said to be an order setting aside the Award on merits. The matter had been referred to the learned Judge on a difference of opinion between two learned Judges of that Court. One of the learned Judges was of the view that the appeal was not maintainable while the other was of the view that the appeal should be admitted as a revision and should be allowed and the case remanded to the lower Court. An earlier decision of the Allahabad High Court in the case of Syed Hasan Ali Khan (supra) which was cited before learned Judge was distinguished, and with respect, rightly in our view, on the ground that the order of the trial Court in that case was in substance an order setting aside the Award because it had been held that it was not possible to implement the Award under the Act.

(28) In the case of P. M. Venkatraman Thimmayya Hegde v. F. M. Venkatraman Subray Bhatta & others, 1962 Supp Mys LJ 250 (22), a Single Judge of that Court held that an order by the trial Court dismissing the application under Section 14 of the Act by the Arbitrator on the ground that it was barred by rest judicata by reason of the dismissal of an earlier application by a party to the Award, was held to be not appealable under any of the clauses of sub-section (1) of Section 39. This is how the learned Judge set out his conclusion :

'IN my view, the only order which falls within sub-section (l)(vi) of Section 39 is an order made under Sec. 30 on any one of the three grounds enumerated in it and no other. That being so, an order rejecting an application under Sec. 14 on the ground that it is barred by rest judicata and which is not preceded by an investigation into the question whether it is liable to be set aside for any of the reasons enumerated in Sec. 30 of the Arbitration Act, is not an order by which an award is set aside : for, there is no application or the mind of the Court to the question whether the award is liable to be set aside for any of these reasons and is thereforee not one from which an appeal could be preferred under clause (vi) of sub-section (1) of Sec. 39 of the Act.'

(29) The learned Judge distinguished and with respect, rightly in our view, the decisions of the Allahabad High Court and of the Patna High Court in the case Nawab Syed Hasan Ali Khan v. Nawab Askari Begum, : AIR1959All777 and Jagdish Mahton v. Sundar Mehton, Air Patna 393 (9), on the ground that while in the first case, the application having been dismissed on the ground that there was no Award at all in existence, it was tantamount to setting aside the Award, in the other, the application was dismissed on the finding that the Award was a fabrication and was, thereforee, tantamount to setting it aside.

(30) We have, thereforee, no hesitation in holding that an order dismissing an application under Section 14 of the Act otherwise than with a reference to the validity or existence of an Award and without adjudicating the question as to its validity or existence, could not be said to be tantamount to setting aside the Award and the first contention of the appellant must, thereforee, fail.

(31) The contention raised on behalf of the appellant on the second question that assuming that the imugned order was not appealable under Section 39 of the Act, was nevertheless appealable either under clause 10 of the Letters Patent or Section 10(1) of the High Court Act, 1966, appears to us to be equally unsustainable.

(32) Clause 10 of the Letters Patent and Section 10(1) of the High Court Act are in the following terms :

(10)'And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made on or after the first day of February, one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal but that the right of appeal from other judgment of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council. as hereinafter provided.'

10.(1) 'Where a Single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub-section (2) of Section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court.'

(33) Although Mr. Aggarwal, learned counsel for the appellant is correct in his contention that the judgment of the 'earned Single Judge appealed against would be a 'judgment' within the meaning of the aforesaid clause of the Letters Patent and even if it be assumed that it would be a 'judgment' within the meaning of the provisions of Section 10(1) of the High Court Act, it would nevertheless be not appealable under any of the above provisions by virtue of the bar created to such an appeal by Section 39(1) of the Act when it provides that an appeal shall lie only against certain 'orders passed under this Act (and from no others).' This is so because for the purpose of an appeal under the Act, the Letters Patent as indeed the High Court Act are in the nature of general law, inter alia, conferring a right of appeal and would, thereforee, be subject to any provision to the contrary contained in any special law ; the Act is a special law and the limitation contained in sub-section (1) of Section 39 of it being a provision to the contrary would prevail and bar any appeal against orders. which are not made appealable under the Act.

(34) In the case of Union of India v. Mohindra Supply Co., : [1962]3SCR497 the Supreme Court was concerned with the question whether an appellate order made under the Act by a learned Single Judge of this Court would be subject to a Second Appeal under the Letters Patent to a Division Bench of this Court notwithstanding the provisions of sub-section (2) of Section 39 of the Act which bars any second appeal from an order passed in appeal under sub-section (1) of that Section and after examining the scheme of the Act and of the provisions of clause 10 of the Letters Patent it was held that by virtue of the bar created by sub-section (2) of Section 39 of the Act, a second appeal was not competent. The legal position was thus summarised by Shah J., as he then was, and who spoke for the Court :

'under section 39(1) the appeal lies from the orders specified in that sub-section and from no others. The legislature has plainly expressed itself that the right of appeal against the order passed under the Arbitration Act may be exercised only in respect of certain orders. The right of appeal against other orders is expressly taken away. If by express provision contained in Section 39(1) a right to appeal from a judgment which may otherwise be available under the Letters Patent is restricted, there is no ground turn holding that Cl. (2) does not similarly restrict the exercise of appellate power granted by the Letters Patent.

(35) In University of Delhi and another v. Hafiz Mohd. Said and others, : AIR1972Delhi102 a Full Bench of this Court was called upon to consider the question whether the right of appeal conferred by Section 10(1) of the High Court Act was any wider than the corresponding right of appeal conferred by the Code of Civil Procedure and the question was answered in the negative and it was held that when the legislature made a provision under Section 10(1) of the High Court Act for an appeal from the judgment of a Single Judge to the Division Bench, it must have meant to refer to the expression 'judgment' in the same terms as defined in the Code of Civil Procedure and to have intended to continue the existing law and practice. The contention that the term 'judgment' appearing in Section 10(1) must be given a wider meaning as is attributed to the term by clause 10 of the Letters Patent so as to widen the scope of the right of appeal conferred by the said section was negatived.

(36) In Union of India v. A. S. Dhupia and another, : AIR1972Delhi108 a Full Bench of this Court was called upon to consider the extent of the right of appeal under Section 10(1) of the High Court Act in the context of the limitation incorporated to such a right in Section 39(1) of the Act and it was held that Section 10(1) of the High Court Act did not confer any unfettered right of appeal without any limitation and that the said provision could not be held to center a right of appeal even against orders which were not covered by Section 39(1) of the Act. The Full Bench relied on the earlier Full Bench decision in the case of University of Delhi (supra) and the decision of the Supreme Court in the case of Union of India v. Mohindra Supply Co. (supra). The contention urged on behalf of the appellant in that case which was adopted on behalf of the appellant before us, to the effect that Section 10 of the High Court Act should be taken to be a special provision and must be held to have the effect of overriding the provisions of Section 39 of the Act which was a general provision or that the provision of Section 39 of the Act could be said to have been repealed by implication by Section 10(1) of the Act was negatived. This is how the position was stated by Sachar, J., who spoke for the Court in that case:

'THESupreme Court, thereforee, has clearly held that appeal against orders passed under the Act will only lie if the same are specified within Section 39(1) of the Act. The only argument to distinguish this authority urged by Mr. Sen, the learned counsel for the appellant, was that Section 10 of the Act of 1966 should be taken to be a special provision and, thereforee, must be held to confer a right of appeal even against those orders which are not covered by Section 39(1) of the Act as according to him Section 10 of the Act of 1966 being a special provision would override Section 39(1) of the Act which is a general provision. In our view the argument is plainly untenable. The Act is a specific Code dealing with the arbitration matters and Section 39(1) is a special provision indicating the orders which alone are appealable. It is wrong, thereforee; to say that Section 10 of the Act of 1966 which only provides for a forum of appeal is a special provision and will override Section 39(1) of the Act. Now Section 39 of the Act which is a special provision dealing with the right of appeal in arbitration matters cannot be said to have been repealed by implication by section 10(1) of the Act of 1966. We, thereforee hold that the appellant cannot derive any assistance from Section 10(1) of the Act of 1966. We, thereforee held that the appellant cannot derive any assistance from Section 10(1) of the Act of 1966 to contend that the appeal is maintainable.'

(37) In the case of Union of India v. N. K. Pvt. Ltd., 1972 Delhi 202, a Division Bench of this Court held that an order made by a Single Judge of this Court varying a temporary injunction during the pendency of proceedings of arbitration, though prima facie a 'judgment' within the meaning of Section 10 of the High Court Act and as such appealable under the said provision, was nevertheless not so appealable by virtue of the limitation contained in Section 39(1) of the Act. It was further held that the procedure contained in the Code of Civil Procedure having been made appealable to other proceedings only 'as far as it can be made appealable' Section . . . 141 would not prevail against a contrary provision contained in the Act and the provisions of Section 39, being a contrary provision, would prevail over Section 41 of the Act because Section 41 opened with the words, 'subject to the provisions of this Act.'

(38) We are bound by the decision of !he Full Bench in the aforesaid cases and are in respectful agreement with the aforesaid decisions and the decision of this Court in the case of Union of India and others v. M/s. N. K. Pvt. Ltd. and another (supra).

(39) Learned counsel for the appellant made a faint attempt to challenge the correctness of the decisions of the Full Bench in the case of Union of India v. A. S. Dhupia (supra) and of the Division Bench in the case of Union of India v. M/s. N. K. Pvt. Ltd. (supra) on the ground that the Full Bench and the Division Bench committed an error in basing their respective decisions on the observations made by the Supreme Court in the case of Union of India v. Mohindra Supply Co. (supra) even though in that case, the Supreme Court was concerned with the extent of the right of second appeal conferred by clause 10 of the Letters Patent by virtue of the bar incorporated in sub-section (2) of Section 39 of the Act while in the aforesaid cases, this Court was concerned with the right of first appeal under Section 10(1) of the High Court Act in the context of the bar incorporated in sub-section (1) of Section 39 of the Act and that in arriving at the decision that this Court did in the aforesaid cases, the effect of the limitation contained in sub-section (1) of section 39 of the Act on the right of appeal conferred by clause 10 of the Letters Patent was ignored.

(40) It appears to us that the criticism of the decisions of the Full Bench and of the Division Bench of this Court is wholly unjustified. Even though in the case Union of India v. Mohindra Supply Co. (supra) the Supreme Court was undoubtedly concerned with the question as to the effect of the provisions of sub-section (2) of Section 39 of the Act on the right of second appeal conferred by clause 10 of the Letters Patent the earlier part of the observations of the Supreme Court in that case quoted above, leave no manner of doubt that the effect of the bar created by sub-section (1) of Section 39 on the right of appeal conferred by Section 10 of the High Court Act and clause 10 of the Letters Patent would be no different than that of sub-section (2) of the Section 39 although the two operated in different fields, the operation of sub-section (1) being confined to the first appeal while that of sub-section (2) to the second appeal. The effect of both the sub-sections is co-extensive even though the restrictive provisions are differently worded.

(41) Although learned counsel for the appellant is right in his contention that neither the Full Bench nor the Division Bench in the cases referred to above noticed clause 10 of the Letters Patent and did not expressly or by necessary implication consider the effect of sub-section (1) of Section 39 of the Act on the right of appeal conferred by clause 10 of Letters Patent as distinct from the right of appeal conferred by Section 10 of the High Court Act, this was possibly because clause 10 of the Letters Patent had not been pressed into service in those cases but, as pointed out above, the invocation of clause 10 would not have made any difference in the ultimate decision in view of the clear observations of the Supreme Court in the case of Union of India v. Mohindra Supply Co. (supra) as also on principle because the provisions of Section 10 of the High Coprt Act and of clause 10 of the Letters Patent would appear to us to be in pari-materia vis-a-vis the bar incorporated in sub-section (1) of Section 39 of the Act.

(42) It is unnecessary for us to deal with the further contention urged on behalf of the appellant that the Full Bench case of Delhi University v. N. K. Said (supra) had not been correctly decided because it was not disputed before us that if the restriction placed by sub-section (1) of Section 39 of the Act extended to any right of appeal, irrespective of its source, it would be immaterial if a restricted or wide meaning was attributed to the term 'judgment' in Section 10 of the High Court Act, the contraversy with which the Full Bench was concerned in that case.

(43) For all these reasons, we have no option but to hold that the right of appeal conferred by clause 10 of the Letters Patent and of sub-section (1) of Section 10 of the High Court Act are subject to the limitation contained in sub-section (1) as indeed sub-section (2) of the Act.

(44) In the result the appeal fails and is hereby dismissed but, in the circumstances, without costs.


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