Ansal Properties And Infrastructure Limited & Ors vs Landmark Property Development Company Limited & Ors

Prathiba M. Singh, J. (Oral)

"Order

51.

The present application stands disposed of with the following directions:

(i)

APIL shall deposit, with the Registry of this Court, ₹ 32 crores (₹ 46.01 crores less ₹ 14,90,48,878/-, rounded off) being the differential amount remaining to be deposited, out of the principal amount of ₹ 46.01 crores awarded by the learned arbitrator, within a period of four weeks from today. (ii) APIL shall further deposit, with the Registry of this Court, an amount of ₹ 34 crores which has been stated by Mr. Sujoy Datta, learned Counsel briefing Ms. Tripathi, on behalf of APIL, to constitute the value of the sale consideration against transfer of the shares held by APIL in AICPL to MIPL. This deposit too, shall be made within a period of four weeks from today.

(iii)

On such deposit being made, all orders of stay, granted by this Court, against any immovable properties held by APIL, shall stand lifted. APIL shall be free to deal with its immovable properties.

(iv)

APIL shall continue, however, to maintain liquidity in its accounts at least to the extent of ₹ 120 crores.

(v)

In the event of default, by APIL, in complying with directions (i) and (ii) above, APIL shall deposit, with the Registry of this Court, an amount of ₹ 200 crores, within a period of eight weeks from today. (vi) All amounts deposited would be retained by the Registry of this Court in an interest bearing fixed deposit, and would abide by the outcome of OMP (Comm) 68/2019 and OMP (ENF) (Comm) 159/2019, and orders to be passed therein."

"Section 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."

"11)

This decision of the Supreme Court in Kandla Export Corporation (supra) decided on 07.02.2018, was rendered prior to the judgement in D & H India Ltd. vs. (supra), rendered by a Division Bench of this Court. However, this judgement was, apparently, not brought to the notice of the Division Bench and has, therefore, escaped the attention of the Division Bench.

12)

A perusal of D & H India Ltd. vs. (supra) shows that the Division Bench has also not referred to and dealt with, specifically Section 13 (2) of the Commercial Courts Act that, in terms, states that "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." Thus, an appeal from an order passed in a commercial cause would lie only in accordance with Section 13(1) and 13(1A), and not otherwise. An appeal, by resort to the Letters Patent (in the light of the judgement of the Supreme Court in Shah Babulal Khimji (supra)) is also not maintainable under Section 13 of the Commercial Courts Act.

13)

With due respect, the judgement of the Division Bench in D & H India Ltd. (supra) cannot be regarded as laying down the correct interpretation of Section 13 of the Commercial Courts Act, and we are, therefore, not bound to follow the same, since there is a contrary view of the Supreme Court. We are bound by the judgement of the Supreme Court. In the ordinary course, we would have referred the decision in D & H India Ltd. vs. (supra) for reconsideration by a larger Bench since, we were inclined to take a contrary view to that taken in D & H India Ltd. (Supra). However, since the issue already stands settled by the Supreme Court, there is no necessity to adopt that course of action. Hence, in our view, these appeals are not maintainable, since none of the impugned orders are appealable under Order XLIII Rule 1 of the Civil Procedure Code.

14)

The Appeals are, accordingly, dismissed."

"20.

The present appeal is directed against an interlocutory order passed in proceedings under Section 36 of the A & C Act, whereby a part of the amount which had been deposited by the appellant in this Court, has been directed to be released in favour of the respondents. Under Section 37, no appeal is maintainable from any order passed under Section 36 of the A&C Act. Further, Section 36 of the A&C Act does not attract the provisions of the Code of Civil Procedure. Since the statute does not provide for an appeal against and order passed under Section 36, it is axiomatic that the present appeal is also not maintainable. The impugned order would neither fall under Order XLIII of the CPC, nor under Section 37 of the A&C Act. Therefore, the present appeal filed under Section 13 of the Commercial Courts Act, is not maintainable."

"11.

The reference to Order XIII Rule 1 - relied upon on behalf of SDMC in the context of this case, in the opinion of this court, is misplaced. Order XIII Rule 1(a), upon which considerable emphasis was placed to say that the appeals against directions to secure amounts during pendency of proceedings applies to suits and suits alone (as is evident from Order XXXVIII and all the attendant provisions), and not to proceedings in respect of an award. Thus, reference to Order XIII to "draw in" the jurisdiction of the Division Bench, is wholly unjustified. Likewise, the Court also rejects the appellant's arguments that Section 36 of the Arbitration Act attracts the provisions of the Code of Civil Procedure. In fact, Section 36 refers to and directs courts to follow CPC in proceedings relating to enforcement of arbitral awards. The logical corollary is that the provisions of the CPC that deal with the proceeding for enforcement of decrees and orders (such as in execution like Order XXI CPC), would be attracted. 12. In view of the above discussions, we conclude that the present appeal is not maintainable. The appellant's remedy clearly lies elsewhere. An attempt was made to urge that no litigant can be deprived of remedy if there is a grievance: ubi jus ibi remedium; however, that argument is wholly without substance because an appeal, it has been repeatedly emphasised, is a specific creation of statute and cannot be claimed as a matter of right. This was explained pithily in Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393, in the following terms:

"There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute."

"89.

We now come to the appeal provision in the Arbitration Act. There can be no doubt that Section 37 is a complete code so far as appeals from orders and awards made under the Arbitration Act are concerned. This has further been strengthened by the addition of the non obstante clause by the Arbitration and Conciliation (Amendment) Act, 2019."

"Section 37 :Appealable orders.

(1)[Notwithstanding anything contained in any other law for the time being in force, 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.]"

"Section 37 Appealable orders

………….

(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."