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M/s INDU – ZMJ – ZHENGZHOU DESIGN – XINFENG, represented by its authorized representative namely Saket Bihari Singh & Others v/s BHARAT COKING COAL LIMITED, Jharkhand & Others

    Commercial Appeal (D.B.) No. 05, 25 of 2020

    Decided On, 03 January 2022

    At, High Court of Jharkhand

    By, THE HONOURABLE CHIEF JUSTICE DR. RAVI RANJAN & THE HONOURABLE MR. JUSTICE SUJIT NARAYAN PRASAD

    For the Appellants: Rahul Kumar, Advocate. For the Respondents: Anoop Kumar Mehta, Advocate.



Judgment Text

Oral Judgment

1. The matters have been taken up through video conferencing with the consent of the parties. They have no complaint whatsoever regarding audio and/or video quality.

2. With the consent of the learned counsel for the parties, both the appeals are being heard together and disposed of by the common order/judgment.

3. Since the instant appeals are under Section 13 of the Commercial Courts Act, 2015 against the order/judgment dated 29.01.2020 passed by the District Judge-XIV-cum-Presiding Officer Commercial Court, Dhanbad in Original Suit No.36 of 2019, therefore, this Court deems it fit and proper first to consider the maintainability of the instant appeals before entering into the issue of merit.

4. The instant appeals are against the order/judgment dated 29.01.2020 by which the petitions filed under Section 29A(4) and 29A(5) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act, 1996) read with Section 10(3) of the Commercial Courts Act, 2015 (hereinafter referred to as the Act, 2015) for extension of time for arbitration for a period of six months under Section 29(4) of the Act, 1996, have been rejected.

Being aggrieved with the aforesaid orders, the instant appeals have been filed invoking the jurisdiction of this Court under Section 13 of the Act, 2015.

5. The brief facts of the lis as per the pleading made which are required to be enumerated read as hereunder:

Admittedly, the BCCL floated a notice inviting tender on 07.03.2011 for Supply, Installation and Commissioning of Machinery and/or Equipment required for implementation of Powered Support Longwall Technology at Moonidih Underground Project and thereafter successful operation and maintenance for production of coal from XVI Top Seam, in the State of Jharkhand. The project was awarded to M/s INDU – ZMJ – ZHENGZHOU DESIGN – XINFENG CONSORTIUM vide letter of acceptance dated 11.07.2012. A contract agreement was executed on 10.12.2012 between the contractor and the BCCL.

Certain disputes arose in between the parties. The BCCL referred the unresolved disputes for arbitration vide Notice of Arbitration dated 05.04.2017. Thereafter, the Arbitration Tribunal comprising Hon’ble Mr. Justice H.S. Bedi (Retd.), former Judge of Hon’ble Supreme Court of India, presiding Arbitrator; Hon’ble Mr. Justice B. Sudershan Reddy (Retd.), former Judge of Hon’ble Supreme Court of India and; Hon’ble Mr. Justice Ananga Kumar Patnaik (Retd.), former Judge of Hon’ble Supreme Court of India, was constituted on 12.04.2018.

The factum of constitution of arbitration tribunal was informed by the Presiding Arbitrator to the parties vide letter dated 12.04.2018. The arbitration could not have been completed within six months so the parties have given their consent on 30.11.2018 to extend the period for making the award by six months from12.04.2019 as per the provision of Section 29A(1) of the Act, 1996. The arbitration process could not be completed within time and the argument of the parties were heard till 29.11.2019. The date was fixed for argument as 24.11.2019 and 29.11.2019 by the Hon’ble Tribunal subject to extension of time for making award in accordance with Section 29A of the Act, 1996 and in that pretext, a petition was filed under Section 29A(4) and 29A(5) of the Act, 1996 but the said petition has been rejected against which present appeals have been preferred.

Thus, it is evident that the first appellate court has considered the petitions filed by one of the parties to the arbitration proceeding under Section 29A(4) and 29A(5) of the Act, 1996 read with Section 10(3) of the Act, 2015 and in that pretext it is to be considered as to whether the instant appeals are maintainable or not as the preliminary objection has been raised by the learned counsel for the BCCL.

6. Learned counsel for the both the parties, have jointly submitted that the appeals are maintainable on the ground that the rejection of petition under Section 29A(4) and 29A(5) of the Act, 1996 read with Section 10(3) of the Act, 2015 and if it is held to be not maintainable under the provision of Section 13(1) of the Act, 2015, the appellants will become remediless.

7. We have heard learned counsel for the parties and perused the documents available on record. Since the order passed under Section 29A(4) and 29A(5) of the Act, 1996 read with Section 10(3) of the Act, 2015, which has been rejected by the court below, is under question in the instant appeals, therefore, it requires to be considered as to whether the order passed in a petition filed under Section 29A(4) and 29A(5) of the Act, 1996 is appealable under the provision of Section 13(1) of the Act, 2015 or not?

This Court, further, deems it fit and proper to refer certain statutory provisions which are necessary to be discussed for answering the aforesaid issue. Relevant are:

Section 10 of the Act, 2015 which reads as hereunder:

“10. Jurisdiction in respect of arbitration matters.—Where the subject-matter of an arbitration is a commercial dispute of a Specified Value and––

(1) If such arbitration is an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that have been filed in a High Court, shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted in such High Court.

(2) If such arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that have been filed on the original side of the High Court, shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted in such High Court.

(3) If such arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that would ordinarily lie before any principal civil court of original jurisdiction in a district (not being a High Court) shall be filed in, and heard and disposed of by the Commercial Court exercising territorial jurisdiction over such arbitration where such Commercial Court has been constituted.’’

Thus, it is evident that if arbitration is an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 that have been filed in a High Court, shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted in such High Court. Further, if arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 that have been filed on the original side of the High Court, shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted in such High Court and sub-section (3) thereof provides that if arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 that would ordinarily lie before any principal civil court of original jurisdiction in a district (not being a High Court) shall be filed in, and heard and disposed of by the Commercial Court exercising territorial jurisdiction over such arbitration where such Commercial Court has been constituted.

Section 11 of the Act, 2015 also requires to be referred which reads as hereunder:

“11. Bar of jurisdiction of Commercial Courts and Commercial Divisions.—Notwithstanding anything contained in this Act, a Commercial Court or a Commercial Division shall not entertain or decide any suit, application or proceedings relating to any commercial dispute in respect of which the jurisdiction of the civil court is either expressly or impliedly barred under any other law for the time being in force.’’

The aforesaid provision stipulates is about bar of jurisdiction of Commercial Courts and Commercial Divisions which shall not entertain or decide any suit, application or proceedings relating to any commercial dispute in respect of which the jurisdiction of the civil court is either expressly or impliedly barred under any other law for the time being in force.

Section 13 of the Act, 2015 also requires to be referred which reads as hereunder:

“13. Appeals from decrees of Commercial Courts and Commercial Divisions.—(1) [Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order.

(1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order:

Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996).]

(2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act.’’

It is evident that Section 13(1) of the Act, 2015 is in two parts. The main provision is a provision which provides for appeal from judgment, orders and decrees of the Commercial Division of a High Court. To this provision, an exception has been carved out by the proviso. The proviso goes on to state that an appeal shall lie from such orders passed by a Commercial Division of the High Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 and Section 37 of the Arbitration and Conciliation Act, 1996. It would further be gathered that the order that are not specifically enumerated under Order XLIII of the Code of Civil Procedure would not be appealable, and appeals that are mentioned in Section 37 of the Arbitration and Conciliation Act alone are appeals that can be made to the Commercial Appellate Division of a High Court.

It also requires to refer the provision of Section 37 of the Act, 1996, which reads as hereunder:

“37. Appealable orders.—(1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:—

[(a) refusing to refer the parties to arbitration under section 8;

(b) granting or refusing to grant any measure under section 9;

(c) setting aside or refusing to set aside an arbitral award under section 34.]

(2) 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.”

Thus, it is evident from conjoint reading of Section 13(1) of the Act, 2015 and Section 37 (1) of the Act, 1996 that an order which refers parties to arbitration under Section 8, not being appealable under Section 37(1)(a), would not be appealable under Section 13(1) of the Commercial Courts Act. Similarly, an appeal rejecting a plea referred to in sub-sections (2) and (3) of Section 16 of the Arbitration Act would equally not be appealable under Section 37(2)(a) and, therefore, under Section 13(1) of the Commercial Courts Act.

8. The issue about maintainability of the appeal under Section 50 and 37 of the Act, 1996 fell for consideration before the Hon’ble Apex Court in Kandla Export Corporation & Anr. vs. OCI Corporation & Anr., (2018) 14 SCC 715 wherein their Lordships, taking into consideration the very object and reason for implementation of Commercial Courts Act as under paragraph-9, have held as hereunder:

“9. The Statement of Objects and Reasons for the Commercial Courts Act, inter alia, provides:

“1. The proposal to provide for speedy disposal of high value commercial disputes has been under consideration of the Government for quite some time. The high value commercial disputes involve complex facts and questions of law. Therefore, there is a need to provide for an independent mechanism for their early resolution. Early resolution of commercial disputes shall create a positive image to the investor world about the independent and responsive Indian legal system.

6. It is proposed to introduce the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Bill, 2015 to replace the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015 which inter alia, provides for the following, namely:

(i) constitution of the Commercial Courts at district level except for the territory over which any High Court is having ordinary original civil jurisdiction;

(ii) constitution of the Commercial Divisions in those High Courts which are already exercising ordinary civil jurisdiction and they shall have territorial jurisdiction over such areas on which it has original jurisdiction;

(iii) constitution of the Commercial Appellate Division in all the High Courts to hear the appeals against the Orders of the Commercial Courts and the Orders of the Commercial Division of the High Court;

(iv) the minimum pecuniary jurisdiction of such Commercial Courts and Commercial Division is proposed as one crore rupees; and

(v) to amend the Code of Civil Procedure, 1908 as applicable to the Commercial Courts and Commercial Divisions which shall prevail over the existing High Courts Rules and other provisions of the Code of Civil Procedure, 1908 so as to improve the efficiency and reduce delays in disposal of commercial cases.

7. The proposed Bill shall accelerate economic growth, improve the international image of the Indian justice-delivery system, and the faith of the investor world in the legal culture of the nation.

9. The Hon’ble Apex Court, after taking into consideration the very object and reason for the implementation of Commercial Courts Act as quoted and referred at paragraph-9 of the aforesaid judgment, has been pleased to hold as under paragraph-27 which reads as hereunder:

“27. The matter can be looked at from a slightly different angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison d'tre for the enactment of the Commercial Courts Act is that commercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if we were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs 1 crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs 1 crore or more, if the appellants are correct, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial Courts Act. Any such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act viz. speedy resolution of disputes of a commercial nature involving a sum of Rs 1 crore and over. For this reason also, we feel that Section 13(1) of the Commercial Courts Act must be construed in accordance with the object sought to be achieved by the Act. Any construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonised by giving effect to the special statute i.e. the Arbitration Act, vis--vis the more general statute, namely, the Commercial Courts Act, being left to operate in spheres other than arbitration.

Thus, it is evident that the Hon’ble Apex Court in the aforesaid judgment has considered the very object and reason of the Commercial Courts Act, 2015 and by considering that aspect of the matter, it has been held that the reason for enactment of the commercial courts is that the commercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if a forum is to be provided for an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, the Arbitration Act and the Commercial Courts Act will be turning on their heads. The instance has been given in the aforesaid paragraph that if the amount contained in a foreign award to be enforced in India were less than Rs.1 crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs.1 crore or more, if the appellants are correct, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial Courts Act. Any such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act viz. speedy resolution of disputes of a commercial nature involving a sum of Rs.1 crore and over. For that reason also, the Hon’ble Apex Court came to conclusion that that Section 13(1) of the Commercial Courts Act must be construed in accordance with the object sought to be achieved by the Act. Any construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed.

10. The Hon’ble Apex Court, recently, in BGS SGS Soma JV. Vs. NHPC Limited, (2020) 4 SCC 234 while dealing with the scope of Commercial Courts Act vis-a-viz the Arbitration Act, taking into consideration the provision of Section 37 of the Act, 1996 and Section 13(1) of the Act, 2015 has been pleased to hold, considering the judgment rendered in Kandla Export Corporation & Anr. vs. OCI Corporation & Anr. (supra) in paragraphs-10, 12, 13 and 19 as hereunder:

"Maintainability of the appeals under Section 37 of the Arbitration Act, 1996

“10. Section 37(1) of the Arbitration Act, 1996 reads as follows:

“37. Appealable orders.—(1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:

(a) refusing to refer the parties to arbitration under Section 8;

(b) granting or refusing to grant any measure under Section 9;

(c) setting aside or refusing to set aside an arbitral award under Section 34.

12. The interplay between Section 37 of the Arbitration Act, 1996 and Section 13 of the Commercial Courts Act, 2015, has been laid down in some detail in the judgment in Kandla Export Corpn. [Kandla Export Corpn. v. OCI Corpn., (2018) 14 SCC 715 : (2018) 4 SCC (Civ) 664] The precise question that arose in Kandla Export Corpn. [Kandla Export Corpn. v. OCI Corpn., (2018) 14 SCC 715 : (2018) 4 SCC (Civ) 664] was as to whether an appeal, which was not maintainable under Section 50 of the Arbitration Act, 1996, is nonetheless maintainable under Section 13(1) of the Commercial Courts Act, 2015. In this context, after setting out various provisions of the Commercial Courts Act, 2015 and the Arbitration Act, 1996, this Court held : (SCC pp. 727, 729, 731-34, paras 13-15, 20-22 & 27)

”13. Section 13(1) of the Commercial Courts Act, with which we are immediately concerned in these appeals, is in two parts. The main provision is, as has been correctly submitted by Shri Giri, a provision which provides for appeals from judgments, orders and decrees of the Commercial Division of the High Court. To this main provision, an exception is carved out by the proviso. …”

14. The proviso goes on to state that an appeal shall lie from such orders passed by the Commercial Division of the High Court that are specifically enumerated under Order 43 of the Code of Civil Procedure Code, 1908, and Section 37 of the Arbitration Act. It will at once be noticed that orders that are not specifically enumerated under Order 43 CPC would, therefore, not be appealable, and appeals that are mentioned in Section 37 of the Arbitration Act alone are appeals that can be made to the Commercial Appellate Division of a High Court.

15. Thus, an order which refers parties to arbitration under Section 8, not being appealable under Section 37(1)(a), would not be appealable under Section 13(1) of the Commercial Courts Act. Similarly, an appeal rejecting a plea referred to in sub-sections (2) and (3) of Section 16 of the Arbitration Act would equally not be appealable under Section 37(2)(a) and, therefore, under Section 13(1) of the Commercial Courts Act.

20. Given the judgment of this Court in Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] , which Parliament is presumed to know when it enacted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section 50 is a provision contained in a self-contained code on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in para 89 of Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] that appeals which are not mentioned therein, are not permissible. This being the case, it is clear that Section 13(1) of the Commercial Courts Act, being a general provision vis--vis arbitration relating to appeals arising out of commercial disputes, would obviously not apply to cases covered by Section 50 of the Arbitration Act.

21. However, the question still arises as to why Section 37 of the Arbitration Act was expressly included in the proviso to Section 13(1) of the Commercial Courts Act, which is equally a special provision of appeal contained in a self-contained code, which in any case would be outside Section 13(1) of the Commercial Courts Act. One answer is that this was done ex abundanti cautela. Another answer may be that as Section 37 itself was amended by the Arbitration Amendment Act, 2015, which came into force on the same day as the Commercial Courts Act, Parliament thought, in its wisdom, that it was necessary to emphasise that the amended Section 37 would have precedence over the general provision contained in Section 13(1) of the Commercial Courts Act. Incidentally, the amendment of 2015 introduced one more category into the category of appealable orders in the Arbitration Act, namely, a category where an order is made under Section 8 refusing to refer parties to arbitration. Parliament may have found it necessary to emphasise the fact that an order referring parties to arbitration under Section 8 is not appealable under Section 37(1)(a) and would, therefore, not be appealable under Section 13(1) of the Commercial Courts Act. Whatever may be the ultimate reason for including Section 37 of the Arbitration Act in the proviso to Section 13(1), the ratio decidendi of the judgment in Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] would apply, and this being so, appeals filed under Section 50 of the Arbitration Act would have to follow the drill of Section 50 alone.

22. This, in fact, follows from the language of Section 50 itself. In all arbitration cases of enforcement of foreign awards, it is Section 50 alone that provides an appeal. Having provided for an appeal, the forum of appeal is left ?to the Court authorised by law to hear appeals from such orders?. Section 50 properly read would, therefore, mean that if an appeal lies under the said provision, then alone would Section 13(1) of the Commercial Courts Act be attracted as laying down the forum which will hear and decide such an appeal.

27. The matter can be looked at from a slightly different angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison d'tre for the enactment of the Commercial Courts Act is that commercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if we were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs 1 crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if in the same fact circumstance, a foreign award were to be for Rs 1 crore or more, if the appellants are correct, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial Courts Act. Any such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act viz. speedy resolution of disputes of a commercial nature involving a sum of Rs 1 crore and over. For this reason also, we feel that Section 13(1) of the Commercial Courts Act must be construed in accordance with the object sought to be achieved by the Act. Any construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonised by giving effect to the special statute i.e. the Arbitration Act, vis--vis the more general statute, namely, the Commercial Courts Act, being left to operate in spheres other than arbitration.”

13. Given the fact that there is no independent right of appeal under Section 13(1) of the Commercial Courts Act, 2015, which merely provides the forum of filing appeals, it is the parameters of Section 37 of the Arbitration Act, 1996 alone which have to be looked at in order to determine whether the present appeals were maintainable. Section 37(1) makes it clear that appeals shall only lie from the orders set out in sub-clauses (a), (b) and (c) and from no others. The pigeonhole that the High Court in the impugned judgment [NHPC Ltd. v. Jaiparkash Associates Ltd., 2018 SCC OnLine P&H 1304 : (2019) 193 AIC 839] has chosen to say that the appeals in the present cases were maintainable is sub-clause (c). According to the High Court, even where a Section 34 application is ordered to be returned to the appropriate court, such order would amount to an order ?refusing to set aside an arbitral award under Section 34”.

19. It can be seen that the reasoning in this judgment would have no application to the facts of the present case. The Division Bench held that directing Antrix to file an affidavit, enclosing therewith its audited balance sheets and profit and loss account for the last three years, is itself an interim order passed under Section 9 of the Arbitration Act, 1996. The further reasoning of the Court that the direction to Antrix to furnish an affidavit is to aid a future interim order, which would be just consequential, does not commend itself to us. A step towards an interim order would not amount to granting, or refusing to grant, any measure under Section 9 of the Arbitration Act, 1996. The case is also distinguishable for the reason that, as regards the Bangalore Court, which cannot proceed further with the matter, the impugned order therein is really final and would, therefore, also be appealable under Section 37. For all these reasons, this judgment is wholly distinguishable and would not apply to the facts of the present case. We may also advert to the fact that our judgment in Kandla [Kandla Export Corpn. v. OCI Corpn., (2018) 14 SCC 715 : (2018) 4 SCC (Civ) 664] was delivered on 7-2-2018, and was missed by the Division Bench in Antrix Corpn. Ltd. [Antrix Corpn. Ltd. v. Devas Multimedia (P) Ltd., 2018 SCC OnLine Del 9338] , as the Division Bench had reserved judgment on 6-12-2017 [Antrix Corpn. Ltd. v. Devas Multimedia (P) Ltd. FAO (OS) (Comm) No. 67 of 2017, order dated 6-12-2017 (Del)] , even though it ultimately pronounced the judgment on 30-5-2018 [Antrix Corpn. Ltd. v. Devas Multimedia (P) Ltd., 2018 SCC OnLine Del 9338] . The judgment in South Delhi Municipal Corpn. [South Delhi Municipal Corpn. v. Tech Mahindra, 2019 SCC OnLine Del 11863] was decided after reference was made to Kandla [Kandla Export Corpn. v. OCI Corpn., (2018) 14 SCC 715 : (2018) 4 SCC (Civ) 664] , resulting in a deposit order being held to be not appealable under Section 37 of the Arbitration Act, 1996.

11. The Hon’ble Apex Court after taking into consideration these aspects of the matter came to a finding that on the given facts of the case, since the appeal filed would not fall within Section 37 of the Act, 1996, is not maintainable.

12. This Court, after considering the aforesaid pronouncements of the Hon’ble Apex Court and looking to the facts of this case, has gathered from the material available on record that the provisions of Section 13 of the Act, 2015 has been invoked for challenging the rejection of petition filed by the contractor under Section 29A(4) and 29A(5) of the Act, 1996 read with Section 10(3) of the Act, 2015. Admittedly, the petition filed under Section 29A(4) and 29A(5) of the Act, 1996 cannot be construed to be decrees of the commercial court a

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s would be evident from the bare reading of the provision of sub-section (4) & (5) of Section 29A of the Act, 1996 which stipulates that if the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3) on the mandate of the arbitrators shall terminate unless the court has, either prior to or after the expiry of the period so specified, extended the period; Provided that while extending the period under sub-section (1), if the Court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent for each month of such delay. Sub-Section (5) thereof provides that the extension of period referred to in sub-section (4) may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the Court. 13. There is no dispute about the fact that the appeal can be filed under Section 13 of the Act, 2015 but only from a decrees of commercial court and commercial division as would appear from the explicit provision contained therein which provides that any person aggrieved by the decision of the Commercial Court or Commercial Division of a High Court, may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order, as the case may be: Provided that an appeal shall lie from such orders passed by a Commercial Division or Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 as amended by this Act and Section 37 of the Act, 1996. Thus, an appeal can be filed invoking the jurisdiction conferred under Section 13 of the Act, 2015 only if the orders are enumerated under Order XLIII of the Code of Civil Procedure and Section 37 of the Act, 1996. 14. Learned counsel for the appellant has admitted the fact that the nature of order which has been passed, which is impugned in these appeals, is neither enumerated under Order XLIII of the Code of Civil Procedure nor under the fold of the provision of Section 37 of the Act, 1996. 15. The Hon’ble Apex Court in BGS SGS Soma JV. vs. NHPC Limited (supra) has, in the similar circumstances, i.e., maintaining an appeal under Section 13(1) of the Act, 2015 or Section 37 of the Act, 1996 has propounded the proposition that the appeal will not lie either under the provision of Section 13(1) of the Act, 2015 or Section 37 of the Act, 1996 if it is not enumerated either the provision of Order XLIII of the Code of Civil Procedure or Section 37 of the Act, 1996. 16. This Court, therefore, is of the view that admittedly, the order passed by the original court, since is of rejection of petition filed under Section 29A(4) and 29A(5) of the Act, 1996 read with Section 10(3) of the Act, 2015 which was filed for extension of time for arbitration for six months under Section 29A(4) of the Act, 1996, therefore, will not be maintainable since the same is not coming either under the fold of Order XLIII of the Code of Civil Procedure or Section 37 of the Act, 1996. 17. In that view of the matter, both the appeals are dismissed holding it not maintainable. However, it is left open upon the parties to search out their remedies to assail the impugned orders. 18. Pending interlocutory application(s), if any, also stands disposed of.
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