Arun Dev Upadhyaya v. Integrated Sales Service Ltd & Anr.
8. first we shall refer to the decision in Tusar D!tansukhlal Sliali
(supra) as the Division Bench in the impugned order has placed reliance
on the same. In the said case, the question that was posed reads as
follows:-
"The only question which falls for consideration is: whether intra
court Letters Patent Appeals on the original side of this Court are
maintainable of this Court are maintainable in respect of suits or
other proceedings which are filed on the original side of this Court."
9. To answer the said question, the Court referred to Sections 2
and 3 of the 1986 Act. The said provisions read as follows:-
"2. Notwithstanding anything contained in any Jaw for the time
being in force or in any instrument having the force oflaw, every
application for the issue of any direction, order or writ under Article
226 of the Constitution oflndia and every application invoking the
jurisdiction of the High Court under Article 227 or Article 228 of
the Constitution of India, pending before the High Court of
Judicature at Bombay, on the date of commencement of this Act,
or filed on or after the said date, whether the matter in dispute is
or has arisen in Greater Bombay or outside Greater Bombay, shall
be heard and disposed of by a Division Bench to be appointed by
the Chief Justice oftl~e High Cou1t:
Provided that, the High Court may, by rules made after previous
publication and with the previous approval of the State Government,
prescribe that such of the applications referred to above, arising
in Greater Bombay or outside Greater Bombay, as may be
specified in the rules, may be heard and disposed of by a single
Judge appointed by the Chief Justice.
3. (I) Notwithstanding anything contained in the Letters Patent
for the High Court of Judicature at Bombay, dated the 28'h
December, 1985 and in any other instrument having the force of
Jaw or in any other law for the time being in force, no appeal,
arising from a suit or other proceeding (including the applications
981
982
referred to in section 2) instituted or commenced, whether before
or after the commencement of this Act, shall lie to the High Court
from a judgment, decree or order of a single Judge of the High
Court made on or after the commencement of th is Act, whether
in the exercise of the original or appellate jurisdiction of the High
Court."
I 0. Thereafter, the High Court referred to the Constitution Bench
judgment in J[[mslled N. Guzd([r v. S/([fe of M([fillmslltra mu/ others',
noted that before this Court, the counsel appearing for the State of
Maharashtra had found that there was anomaly in Section 3 of the 1986
Act and accordingly made a concession which has been noted in
paragraph 18 of the judgment. It reads as follows:-
"M r U.U. Lalit, learned Senior Counsel for the State of
Maharashtra, while supporting the impugned judgment submitted
that there is an anomaly created by, or deficiency found in Section
3 of the 1986 Act inasmuch as Section 3 of the said Act read with
Section 9 of the 1987 Act fails to make any provision for appeal
against a decree or order passed after the commencement of the
Act in any suit or other proceedings pending in the High Court
since before the commencement of the Act. He sought ten days'
time to have instructions from the State of Maharashtra in this
regard. Thereafter, on the basis of Letter No. 3 7-PF 2131097
dated 17-12-2004 of the Principal Secretary and RLA, State of
Maharashtra, IA No. I 0 is filed seeking pe1111ission to place on
record the said letter indicating the willingness of the State of
Maharashtra to take necessary steps to make legislative
amendment to Section 3 of Maharashtra Act 17 of 1986, relevant
portions of which read:
"With reference to the above subject, I have to state that you are
hereby given instructions to make a statement before the Hon'ble
Supreme Comt that the State of Maharashtra will take necessary
steps to make legislative amendment to Section 3( I) of Maharashtra
Act 17 of 1986 [the Maharashtra High Cou1t (Hearing of Writ
Petitions by Division Bench and Abo I ition of Letters Patent
Appeals) Act, 1986] to make a provision for appeal against the
judgment, order and decree passed on the appointed date by the
High Court and thereafter as may be indicated in the judgment of
the Supreme Court.""
' (2oos12 sec s91
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE
LTD & ANR. [DIPAK MISRA, J.]
11. After the said judgment, the State of Maharashtra brought an
amendment, i.e., Maharashtra High Court (Hearing of Writ Petitions by
Division Bench and Abolition of Letters Patent Appeals) Amendment
Act, 2008 (Maharashtra Ace No. XXVII of 2008). The High Court
referred to statement of objects and reasons of the said Amendment
Act and reproduced Section 3 which has come into existence after the
amendment. Interpreting Section 3, the Division Bench ruled that:-
" ... The words "an appeal under any statute" clearly referred to
any appeal provided under any provision under the statute and
where such an appeal is heard by single Judge of the High Court
then against such orders passed in appeal by a single Judge of the
High Court. Appeals, therefore, provided under Arbitration Act
and other Acts which provide that these appeals are to be heard
by the single Judge of the High Court then against the order passed
in such appeals, Letters Patent Appeal is not maintainable. Here,
again, a distinction will have to be drawn between the appeals
which are filed from the orders passed by the District Courts,
other than the orders passed by the single Judge on the original
side of the Bombay High Court. Such appeals which are filed
against the orders passed by the District Courts, would be heard
by the Single Judge of this Court and against such orders passed
by the single Judge of the High Court, Letters Patent Appeal would
not be maintainable. However, where Petition is filed before the
single Judge of this Court under any provision under the statute,
the appeal against such an order would still be maintainable before
the Division Bench of this Court. This distinction therefore has to
be kept in mind while construing the meaning of the words "appeal
arising from a statute''. To give an example, a Petition under
section 34 of the Arbitration and Conciliation Act, 1996 where
Arbitral Tribunal passes an award - say in the City of Pune -
such a petition under Article 34 of the Act would be maintainable
before the District Court. An appeal under section 3 7 would be
maintainable in the High Court before the Single Judge on the
Appellate Side. No Letters Patent Appeal against the order passed
by the single Judge under section 3 7 can be filed before the Division
Bench of this Comt, whereas if the Arbitral Tribunal passes an
award in City of Mumbai, a Petition under section 34 could be
filed on the original side of this Court and, it would be heard by the
single Judge sitting on the original side of this Court. Appeal,
983
984 SUPREME COURT REPORTS [2016) 7 S.C.R.
A however, against such an order would be maintainable before the
Division Bench of this Court and it would not be barred by the
words "appeal arising from a statute" ... "
Be it noted that the Division Bench has referred to earlier judgment
in Jet Air (India) Ltd. v. Subrata Roy Salwra~ and concluded that an
B appeal arising out of any suit or proceeding which are filed on the original
side would be maintainable in view of the Amendment Act of2008. The
impugned order, as we find, placing heavy reliance on the aforesaid
decision has opined that the Letters Patent Appeal is maintainable.
12. The pivotal question is whether an appeal against the judgment
of the Single Judge in an international arbitration matter is appealable to
the Division Bench or to put it otherwise, whether the intra-court appeal
would lie because of the Letters Patent. In this context, it is necessary
to refer to Section 50 of the 1996 Act, which provides for appeals. It is
extracted hereunder:-
"50. Appealable orders.-
(1) An appeal shall lie from the order refusing to
(a) refer the parties to arbitration under section 45;
(b) enforce a foreign award under section 48, to the cou11
authorised by law to hear appeals from such order.
(2) No second appeal shall lie from an order passed in appeal
under this section, but nothing in this section shall affect or take
away any right to appeal to the Supreme Court."
13. On a careful readil1g of the aforesaid provision, it is limpid that
appeal can lie if an order is passed refusing to refer the parties to
arbitration as engrafted under Section 45 of the 1996 Act or to enforce
a foreign award as envisaged under Section 48 of the said Act. Scheme
of Section 50 came up for interpretation before this Court in Sllin-Etsu
Cllemica/ Company Ltd. (2) and otllers v. Vindltya Tele/inks Ltd.
and ot/1ers5 wherein it has been ruled thus:-
"Sections 45 and 50 in Part II of the Act relating to "enforcement
of certain foreign awards", correspond to Sections 8 and 37 of
Part I of the Act. Sub-section ( 1) of Section 50 provides for an
appeal from an order refusing to refer the parties to arbitration
'2011 SCC Online Born 1379
' (2009J 14 sec 16
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE
LTD & ANR. [DIPAK MISRA, J.]
under Section 45, to the court authorised by law to hear appeal by
such order. Therefore, the appellant challenge<! the orders of the
Civil Judge (Class I), Rewa before the Additional District Judge,
Rewa which is said to be the court authorised to hear appeals
from the orders of the Civil Judge (Class I). Sub-section (2) of
Sectio11 50 bars second appeals. It provides that no appeal shall
lie from an order passed in appeal under Section 50. It, however,
clarifies that nothing in Section 50 shall affect or take away any
right to appeal to the Supreme Court".
14. In the said case a contention was advanced relying on sub
section (2) of Section 50 that though an appeal may not lie from an
order passed in appeal, the right of appeal to the Supreme Court having
been specifically stated, the appellant therein could maintain an appeal
before this Court. It was contended that the appellant had a right of
appeal to this Court. The two-Judge Bench placing reliance on Nirmtt
Ltd. v. Lurgi Lentjes Energieteclmik Gmb/1 mid mwtliel", ITI Lttl.
v. Siemens Public Communictttions Network Lttf.1, Sflyttm Sunder
Agarwal & Co. v. Union of India 8 and Punjab Agro Industries
Corporation Limited v. Kewal Singh Dliillon9, held:-
"20. The right to appeal to the Supreme Court referred and
excluded from the bar contained in Section 50(2) of the Act, refers
to appeals under Article 132 or 133( I) against any judgment, decree
or final order of the High Court, ifthe High Court certified under
Article 134-A that tpe case involves a substantial question oflaw
as to interpretation of the Constitution or that the case involves a
substantial question of law of general importance and that in the
opinion of the High Court the said question needs to be decided
by the Supreme Court. The words "right to appeal" refer to a
right conferred either under the Constitution or under a statute to
file an appeal to a higher court against the judgment, decree or
order of a lower court, without having to first obtain any permission
or leave.
21. In the absence ofa constitutional or statutory provision for an
appeal as of right, the appellant cannot contend that it has a "right to
'(2002J s sec s20
1 (2002) s sec s10
• (1996) 2 sec 132
• (2008) 1 o sec 128
985
986
SUPREME COURT REPORTS [2016) 7 S.C.R.
appeal" to the Supreme Cou1t. An appeal by special leave to the Supreme
Court cannot therefore be considered as an appeal as of right or as an
appeal in pursuance of a right to appeal to the Supreme Court".
15. Presently, we may refer to the decision in P.S. S"tltapp"n
(de"d) by Lrs. v. Am/lira Bank Ltd. ""d others' 0, wherein the
Constitution Bench was considering the maintainability of the Letters
Patent Appeal that arose from the High Court of Madras. The Court
referred to various provisions of the Code of Civil Procedure, 1908 and
certain clauses of the Letters Patent applicable to the Madras High
Court and also referred to Clause 15 of the letters patent of the Bombay
High Court and held that:-
"21. We are of the opinion that in reaching this conclusion the
Court missed the relevant portion of clause 15 of the Letters Patent
of the Bombay High Court. Reliance cannot, therefore, be placed
on this judgment for the proposition that under clause 15 of the
Letters Patent of the Bombay High Com1 no appeal to a Division
Bench from the order of the Single Judge in exercise of appellate
jurisdiction is maintainable.
22. Thus the unanimous view ofall courts till 1996 was that Section
l 04( l) CPC specifically saved letters patent appeals and the bar
under Section I 04(2) did not apply to letters patent appeals. The
view has been that a letters patent appeal cannot be ousted by
imp I ication but the right of an appeal under the Letters Patent can
be taken away by an express provision in an appropriate legislation.
The express provision need not refer to or use the words "letters
patent" but ifon a reading of the provision it is clear that all further
appeals arc barred then even a letters patent appeal would be
barred".
And again:-
"A Letters Patent is a special law for the High Cou11 concerned.
The Civil Procedure Code is a general law applicable to all courts.
G It is well-settled law, that in the event of a conflict between a
special law and a general law, the special law must always prevail.
We sec no conflict between the Letters Patent and Section I 04
but if there was any conflict between a Letters Patent and the
Civil Procedure Code then the provisions of the Letters Patent
H '" (2004 J 11 sec 672
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE
LTD & ANR. [DIPAK MISRA, J.]
would always prevail unless there was a specific exclusion. This
is also clear from Section 4 of the Civil Procedure Code which
provides that nothing in the Code shall limit or affect any special
law. As set out in Section 4 CPC only a specific provision to the
contrary can exclude the special law. The specific provision would
be a provision like Section I 00-A".
16. In Fuerst Day Lawson Limited (supra), the two-Judge Bench
was dealing with the question whether an order, though not appealable
under Section 50 of the 1996 Act would nevertheless be subject to appeal
under the relevant provision of the Letters Patent of the High Court. In
other words, even though the 1996 Act does not envisage or permit an
appeal from the order, the party aggrieved by it can still have his way
bypassing the said Act and taking recourse to another jurisdiction. To
answer the said question the Court referred to various decisions in the
field and culled out the broad principles which are reproduced below:-
"(i) Normally, once an appeal reaches the High Cou1t it has to be
determined according to the rules of practice and procedure of
the High Court and in accordance with the provisions of the charter
under which the High Court is constituted and which confers on it
power in respect to the method and manner of exercising that
power.
(ii) When a staiute merely directs that an appeal shall lie to a
court already established then that appeal must be regulated by
the practice and procedure of that court.
(iii) The High Court derives its intra-court appeal jurisdiction under
the Charter by which it was established and its powers under the
Letters Patent were recognised and saved by Section I 08 of the
Government of India Act, 1915, Section 223 of the Governnrent
oflndia Act, 1935 and finally, by Article 225 of the Constitution of
India. The High Court, therefore, cannot be divested of its Letters
Patent jurisdiction unless provided for expressly or by necessary
intendment by some special statute. ·
(iv) If the pronouncement of the Single Judge qualifies as a
"judgment", in the absence of any bar created by a statute either ·
expressly or by necessary implication, it would be subject to appeal
under the relevant clause of the Letters Patent of the High Court.
987
8
A ( v) Since Section I 04( I) CPC specifically saves the letters patent
appeal; it could only be excluded by an express mention in Section
I 04(2). In the absence of any express mention in Section I 04(2),
. the maintainability of a letters patent appeal i.s saved by virtue of
Section 104(1).
B (vi) Limitation of a right of appeal in absence of any provision in
a statute cannot be readily inferred. The appellate jurisdiction of a
superior court cannot be taken as excluded simply because a
subordinate court exercises its special jurisdiction.
(vii) The exception to the aforementioned rule is where the special
c Act sets out a self-contained code and in that event the applicability
of the general law procedure would be impliedly excluded. The
express provision need not refer to or use the words "letters
patent" but if on a reading of the provision it is clear that all further
appeals are barred then even a letters patent appeal would be
barred".
17. The Court thereafter referred to Section 50 of the 1996 Act
and analysed the earlier decisions in the field including the judgment in
Union of l11dia v. Mollindra Supply Co.11 wherein it has been held
that the Letters Patent Appeal against an order passed by a Single Judge
of the High Court in appeal under Section 39(1) of the Arbitration Act,
1940 was not maintainable in terms of sub-section (2) of Section 39 of
the said Act. Though appeal was held not maintainable in view of the
express language employed in sub-section (2) of Section 39 of the
Arbitration Act, 1940, the two-Judge Bench took note of the observation
which is to the following effect:-
" ... The proceedings relating to arbitration are, since the enactment
of Arbitration Act 10of1940, governed by the provisions of that
Act. The Act is a consolidating and amending statute. It repealed
the Arbitration Act of 1899, Schedule 2 of the Code of Civil
Procedure and also clauses (a) to (f) of Section I 04(1) of the
Code of Civil Procedure which provided for appeals from orders
in arbitration proceedings. The Act set up machinery for all
contractual arbitrations and its provisions, subject to certain
exceptions, apply also to every arbitration under any other
enactment for the time being in force, as if the arbitration were
11 AIR 1962 SC 256: (1962) 3 SCR 497
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE
LTD & ANR. [DlPAK MISRA, J.]
pursuant to an arbitration agreement and as if that other enactment
were an arbitration agreement, except insofar as the Arbitration
Act is inconsistent with that other enactment or with any rules
made thereunder."
18. Relying on the said authority and also appreciating the decision
of the Constitution Bench in P.S. Satlwppan (supra) the Court ruled
thus:-
"It is, thus, to be seen that Arbitration Act, 1940, from its inception
and right through to 2004 (in P.S. Sathappan) was held to be a
self-contained code. Now, ifthe Arbitration Act, 1940 was held to
be a self-contained code, on matters pertaining to arbitration, the
Arbitration and Conciliation Act, 1996, which consolidates, amends
and designs the law relating to arbitration to bring it, as much as
possible, in harmony with the UNCITRAL Model must be held
only to be more so. Once it is held that the Arbitration Act is a
self-contained code and exhaustive, then it must also be held, using
the lucid expression of Tulzapurkar, J ., that it carries with it "a
negative import that only such acts as are mentioned in the Act
are permissible to be done and acts or things not mentioned therein
are not permissible to be done". In other words, a letters patent
appeal would be excluded by the application of one of the general
principles that where the special Act sets out a self-contained
code the applicability of the general law procedure would be
impliedly excluded.
19. The ultimate conclusion reached by the Court is to the following
effect:-
989
"90. We, thus, arrive at the conclusion regarding the exclusion of F
a letters patent appeal in two different ways; one, so to say, on a
micro basis by examining the scheme devised by Sections 49 and
50 of the 1996 Act and the radical change that it brings about in
the earlier provision of appeal under Section 6 of the 1961 Act
and the other on a macro basis by taking into account the nature 0 and character of the 1996 Act as a self-contained and exhaustive
code in itself.
91. In light of the discussions made above, it must be held that no
letters patent appeal will lie against an order which is not appealable
under Section 50 of the Arbitration and Conciliation Act, 1996. H
990
SUPREME COURT REPORTS [2016) 7 S.C.R.
20. In the case at hand, the proceeding was initiated before the
learned District Judge. During the pendency of the proceeding, the
Explanation of sub-section (2) of Section 4 7 of the 1996 Act was
amended. The amended Explanation reads as follows:-
"Explanation: In this section and in the sections following in this
Chapter, "Court" means the High Court having original jurisdiction
to decide the questions forming the subject-matter of the arbitral
award if the same had been the subject-matter of a suit on its
original civil jurisdiction and in othercascs, in the High Court having
jurisdiction to hear appeals from decrees of courts subordinate to
such High Comt."
21. In spite of the amendment, the learned District Judge passed
an order. However, the respondent moved the High Court and it was
accepted by both the parties before the learned Single Judge that the
District Judge had no jurisdiction and thereafter the learned Single Judge
took up the matter and passed the order. The Division Bench in the
impugned order has referred to Section 13( I) of the Act. It reads as
follows:-
" 13 (I) Any person aggrieved by the decision of the Commercial
Court or Commercial Division of a High Cou11 may appeal to the
Commercial Appellate Division of that High Court within a period
of sixty days from the date of judgment or order, as the case may
be:
Provided that an appeal shall lie from such orders passed by a
Commercial Division or a Commercial Com1 that are specifically
enumerated under Order XLIJI of the Code of Civil Procedure,
1908 as amended by this Act and section 3 7 of the Arbitration and
Conciliation Act, 1996."
22. On a perusal of the aforesaid provision, it is crystal clear that
an appeal would lie if it is in accordance with the provisions of the Act.
The said provision has to be read in conjunction with Section 5 of the
Act. Section 5 of the Act reads as under:-
"5. (I) After issuing notification under sub-section (I) of section 3
or order under sub-section (I) of section 4, the Chief Justice of
the concerned High Court shall, by order, constitute Commercial
Appellate Division having one or more Division Benches for the
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE
LTD & ANR. (DIPAK MISRA, J.]
purpose of exercising the jurisdiction and powers conferred on it
by the Act.
(2) The Chief Justice of the High Court shall nominate such Judges
of the High Court who have experience in dealing with commercial
disputes to be Judges of the Commercial Appellate Division."
23. The aforesaid pro'tision clearly lays down that a forum is
created, i.e., Commercial Appellate Division. Section 50(1 )(b) of the
1996 Act provides for an appeal. Section 50( 1 )(b) has not been amended
by the Act that has come into force on 23. l 0.2015. Thus, an appeal
under Section 50(1 )(b) of the 1996 Act before the Division Bench is
maintainable.
24. Thus analysed, we find that the impugned judgment of the
learned Single Judge under Section 50( I )(b) of the 1996 Act is passed in
the original side of the High Court. Be that as it may, under Section 13
of the Act, the single Judge has taken the decision. Section 13 bars an
appeal under Letters Patent unless an appeal is provided under the 1996
Act. Such an appeal is provided under Section 5 of the Act. The Letters
Patent Appeal could not have been invoked if Section 50 of the 1996 Act
would not have provided for an appeal. But it does provide for an appeal.
A conspectus reading of Sections 5 and 13 of the Act and Section 50 of
the 1996 Act which has remained unamended leads to the irresistible
conclusion that a Letters Patent Appeal is maintainable before the
Division Bench. It has to be treated as an appeal under Section 50( 1 )(b)
of the I 996 Act and has to be adjudicated within the said parameters.
25. Resultantly, we affirm the judgment of the High Court though
for different reasons. Accordingly the appeals stand dismissed without
any order as to costs.
Devika Gujral Appeals dismissed.
991