w w w . L a w y e r S e r v i c e s . i n

N. C. Bhalla and Others v/s R. C. Bhalla and Others

    F.A.O. (OS) No. 202 of 1986

    Decided On, 22 July 1990

    At, High Court of Delhi


    For the Appearing Parties : V. N. Koura, Pinky Anand, Advocates.

Judgment Text


Leila Seth, J. for the A preliminary objection has been raised that the appeal is not maintainable in view of Section 39 of the Arbitration Act.

2. The impugned order dated 5th June, 1986 was passed by the learned Single Judge on an application filed under Section 41(b) read with the Second Schedule of the Arbitration Act and Order 39 Rules 1 and 2 of the Code of Civil Procedure. The appellant filed this appeal as also a Special Leave petition against the impugned order. We are informed that the Special Leave petition is still pending in the Supreme Court.

3. Ms. Anand, learned counsel for the respondents has relied on the decision of this court in M/s. Banwari Lal Radhey

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Mohan v. The Punjab State Co-operative Supply and Marketing Federation 1983 AIR(Delhi) 402), in support of the preliminary objection.

4. Mr. Koura, learned counsel for the appellants has vehemently, urged that the appeal is maintainable under Section 10 of the Delhi High Court Act and Section 39(1) of the Arbitration Act does not have a barring effect : further this is apparent when one compares Section 39(1) with Section 39(2) of the Arbitration Act which takes away all rights of second appeal but does not affect or take away the right of appeal to the Supreme Court. He has contended that in view of the Letters patent jurisdiction of the Delhi High Court, this appeal is entertainable and this is apparent from the decision in Jugal Kishore Paliwal v. Satjit Singh and another (1984 (I) SCC 358), in which the Supreme Court has stated that the High Court was clearly wrong in refusing to go into the merits of the case on the ground that the appeal was not maintainable in view of the full bench decision in University of Delhi v. Hafiz Mohd. Said 1972 AIR(Delhi) 102). Further, the Supreme Court went on to add that the full bench decision was no longer good law in view of the decision of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kanai 1981 AIR(SC) 1786, 1981 (3) Scale 1169, 1981 (4) SCC 8, 1982 (1) SCR 187, where various parameters and conditions under which can lie from a Judge have been laid down.

5. The point though interesting is not res integra. In Banwari Lal's case (supra) a bench of this court considered the very point raised in this case. After dealing with a number of provisions of the Delhi High Court Act, 1966, the Arbitration Act and various decisions including Union of India and others v. N.K. Private Limited and another 1972 AIR(Delhi) 202), it came to the conclusion that appeals from the judgment/order of a trial Judge to a larger Bench of the High Court would be maintainable unless otherwise so provided either expressly or by implication by any law. In paragraph 18 it is stated :

"Section 4 of the Civil P.C. in terms lays down that when anything in the Civil P.C. is in conflict with anything in the special or local law or with any special jurisdiction or power conferred or any special forum or procedure prescribed by or under any other law, the Code will not in the absence of specific provisions to the contrary, prevail so as to override such inconsistent provision. In the cases cited and considered by the Supreme Court in Shah Babulal Khimji's case (supra), no inconsistency was pointed out between the provisions of the Code or the provisions of the Letters patent. In the present case it is not so. Section 39 of the Arbitration Act in terms says that no other orders would be appealable except those specified in the section. Therefore, on the ratio of Shah Babulal Khimji's case, which approves the rule enunciated by the judicial committee of the Privy Council in Chowdhry's case (1882 10 Ind. App. 4), it has to be held that no appeal is competent from the judgment under appeal before us. Indeed, if we are to read paras 33 and 34 of the judgment in Shah Babulal Khimji's case it would become apparent that the Supreme Court while upholding the right of first appeal against judgment of a trial Judge from orders from which appeal is permissible under Section 39 of the Arbitration Act impliedly also held that the provisions of Section 39 of the Arbitration Act would apply in appeals from orders from which appeal is permissible under Section 39 or was impermissible. Their Lordships in Shah Babulal Khimji's case, a decision rendered by a division bench of the Supreme Court comprising three hon'ble Judges, noticed with approval the decision of the Supreme Court in the Mohindra Supply Co.'s 1962 AIR(SC) 266) case, given by a bench of four hon'ble Judges. As noticed earlier, maintainability of an appeal from an order amounting to a judgment from which appeal is not permissible on a reading of Section 39 of the Arbitration Act was specifically ruled out in Mohindra Supply Co.'s case. We are bound by that decision.

6. A Division Bench of this court in United India Insurance Company v. Darbar W. Mills (1984 RLR 405) observed that it has been repeatedly held that an appeal only lies under the Arbitration Act in accordance with the provisions of Section 39 of the Arbitration Act. If an order is passed under the Act, it is appealable only under the provisions of the Act and under no other law. The unanimity of judgments of this court is that an appeal lies only against those particular orders that are detailed in Section 39 of the Arbitration Act and against no others.

7. In Subhash Chander Kakkar v. D.S.I.D.C. and another 1990 (2) Delhi(Lawyer) 21), a bench of this court while dealing with the question of maintainability of an appeal noticed and rejected the argument of the counsel that orders passed by the single Judge are orders passed under the Civil Procedure Code and consequently make the appeal maintainable. It observed that when the court passed an order under Order XXXIX of the Civil Procedure Code during the pendency of any proceedings before it which have been commenced under any of the sections of the Arbitration Act, the court is in effect exercising its jurisdiction by virtue of the provision of Section 41 of the Arbitration Act. Section 39 of the Arbitration Act clearly specifies what are appealable order. An order passed under Section 41 of the Arbitration Act read with the second Schedule and Order XXXIX Rules 1 and 2 of the Civil Procedure Code is not an appealable order. It relied on the decisions of this court in the case of M/s. Banwari Lal Radhey Mohan (supra) and the United India Insurance Company (supra).

8. Section 39(1) of the Arbitration Act provides that :"

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 decree of the court passing the order ...."

9. It is apparent that the Arbitration Act is a consolidating and amending Act substantially in the form of a Code relating to arbitration and the words of the statute must be given their full meaning especially as the language is plain and explicit. The words "and from no others" could not be clearer.

10. Taking into consideration all aspects of the matter and the decisions in M/s. Banwari Lal Radhey Mohan (supra) and Subhash Chander Kakkar (supra), the appeal is dismissed as not maintainable. However, in the circumstances of the case, we make no order to costs