1998 JTR(SC) 829
1999 AIR(SC) 2871 ; 1999 AIR(SCW) 2475 ; 1999 2 ArbLR 117 ; 1999 3 RAJ 406 ; 1999 2 SCC 541
SUPREME COURT OF INDIA
J.Jagannadha Rao : S.B.Majmudar
Orma Impex Private Limited
Versus
Nissai Asb Private Limited
Case No. : 12788 of 1998
Date of Decision : 8/19/98
Advocates Appeared: Gupta Manjula : Jain Pradeep
When a matter is referred to an established court, the general right of appeal under the Letters Patent applies to decisions of a Single Judge, even if the specific statute under which the court exercises jurisdiction does not expressly provide for such an appeal.
Act
Referred
:ARBITRATION AND CONCILIATION ACT
: S.45
DELHI HIGH COURT ACT: S.10
(A) Arbitration and Conciliation Act, 1996 - Sections 45 and 50 - High Court Act - Section 10 - Letters Patent - Clauses 10 and 15 - Appeal against order refusing to refer parties to arbitration - Whether an appeal lies against an order passed by a Single Judge under Section 45 of the Act when the Act does not expressly provide for it - Conflict of decisions between two-judge benches regarding the applicability of Letters Patent and High Court Act - A three-judge bench has previously held that when a question is referred to an established court, the ordinary incidents of the procedure of that court, including the general right of appeal, attach, making the Letters Patent applicable even if the specific Act provides no such appeal. (Paras 1 and 2)
Facts of the case:
A Single Judge of the High Court passed an order under Section 45 of the Arbitration and Conciliation Act, 1996, refusing to refer parties to arbitration. The High Court took the view that no further appeal would lie under Section 50 of the Act against such an order.
Findings of Court:
The court observed that the High Court failed to notice the relevant provisions of the High Court Act and the Letters Patent. It noted a conflict in decisions by two-judge benches and highlighted a three-judge bench decision stating that general rights of appeal under the Letters Patent apply to decisions of Single Judges exercising jurisdiction under a specific Act, even if that Act is silent on appeals.
Issues: Whether an appeal is maintainable against an order passed by a Single Judge under Section 45 of the Arbitration and Conciliation Act, 1996, by invoking the Letters Patent or the High Court Act, despite the absence of an express provision for appeal in the Act itself.
Ratio Decidendi: Where a matter is referred to an established court, the ordinary procedural incidents of that court, including the general right of appeal under the Letters Patent, apply even if the specific statute under which the court is exercising jurisdiction does not provide for an appeal.
Result: Special leave petition directed to be placed before a bench of three Judges.
Facts of the case:
A Single Judge of the High Court passed an order under Section 45 of the Arbitration and Conciliation Act, 1996, refusing to refer parties to arbitration. The High Court took the view that no further appeal would lie under Section 50 of the Act against such an order.
Findings of Court:
The court observed that the High Court failed to notice the relevant provisions of the High Court Act and the Letters Patent. It noted a conflict in decisions by two-judge benches and highlighted a three-judge bench decision stating that general rights of appeal under the Letters Patent apply to decisions of Single Judges exercising jurisdiction under a specific Act, even if that Act is silent on appeals.
Issues: Whether an appeal is maintainable against an order passed by a Single Judge under Section 45 of the Arbitration and Conciliation Act, 1996, by invoking the Letters Patent or the High Court Act, despite the absence of an express provision for appeal in the Act itself.
Ratio Decidendi: Where a matter is referred to an established court, the ordinary procedural incidents of that court, including the general right of appeal under the Letters Patent, apply even if the specific statute under which the court is exercising jurisdiction does not provide for an appeal.
Result: Special leave petition directed to be placed before a bench of three Judges.
Procedure - Held that general right of appeal applies when a question is referred to an established court, regardless of whether the specific Act provides for an appeal.
Appealability - Discussed the appealability of an order passed by the High court in an appeal from the order of a subordinate court.
Conflict - Took a contrary view on appealability by relying upon clause 15 of the Letters Patent applicable to the High court of Bombay.
Appealability - Supports the view that no further appeal lies under Section 50 of the Arbitration and Conciliation Act against an order under Section 45.
(1) IN this case, the High court has taken the view that no further appeal would lie under Section 50 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") against an order under Section 45 refusing to refer parties to arbitration as passed by learned Single Judge. Therefore, the view seems to be that unless the Act expressly provides for appeal against the decision of the learned Single Judge exercising powers under Section 45 of the Act, no appeal would lie to the division bench. Unfortunately, Section 10 of the Delhi High court Act, 1966 and clause 10 of the Letters Patent which apply to the High court of Delhi have not been noticed therein. However, there is a two-Judge bench decision of this court in State of W.B. v. Gourangalal Chatterjee which supports the view taken by the High court in the impugned judgment. In State of W.B. v. Gourangalal Chatterjee this court relied upon an earlier decision of the court in Union of India v. Mohindra Supply Co. The said decision was rendered with reference to the appealability of an order passed by the High court in an appeal from the order of the subordinate court and not from the order passed by a learned Single Judge sitting on the Original Side of the High court. There is also another decision of a two-Judge bench of this court in Vinita M. Khanolkar v. Pragna M. Pafi which appears to have taken a contrary view relying upon clause 15 of the Letters Patent applicable to the High court of Bombay. Thus, there appears to be a conflict of decisions on this question.
(2) EVEN that apart, as early as in 1953, a three-Judge bench of this court in National Sewing Thread Co. Ltd. v. James Chadwick and Bros. Ltd. especially in para 7 thereof, held that when a question is stated to be referred to an established court, without more, the ordinary incidents of the procedure of that court will get attached including general right of appeal from its decision and, accordingly, clause 15 of the Letters Patent was held applicable to decisions rendered by learned Single Judges of the High court exercising jurisdiction under the Trade Marks Act, even though under the said Act, no appeal was provided,
(3) IT is, therefore, appropriate to direct this special leave petition to be placed before a bench of three Judges of this court. The office may obtain appropriate orders from Honble the chief justice of India in this connection.
COURT Masters