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Judgment
Vipin Sanghi, J.—I have had the advantage of reading the judgment prepared by my learned brother, Mukul Mudgal, J. While I agree with his finding and conclusion that the award in question is a foreign award within the meaning of Section 2 of the Foreign Awards (Recognition and Enforcement) Act, 1961 (hereinafter referred to as the Foreign Awards Act.), as the award has been made on an arbitration agreement which is not governed by the Law of India, I, with respect, do not agree with his conclusion that the present appeal, filed by the appellant against the impugned order and judgment of the learned single Judge (whereby the learned single Judge has concluded that the award in question is enforceable under the Foreign Awards Act), is not maintainable before the Division Bench by resort to Section 10 of the Delhi High Court Act read with Letters Patent (Lahore).
Since the respondent has raised the objection to the maintainability of the present appeal, I consider it appropriate to first state the basis of the said objection as argued by Mr. Dholakia, learned senior counsel for the respondent.
The first submission of Mr. Dholakia is that the memorandum of appeal as filed by the appellant is itself styled as one u/s 6(2) of the Foreign Awards Act, and the appellant does not purport to involve the jurisdiction of the Court u/s 10 of the Delhi High Court Act read with the Letters Patent (Lahore). This is a hyper- technical objection in which I see no merit. It is well settled that a mere mention of a wrong legal provision in a petition does not affect its maintainability, if otherwise it is maintainable in law.
Mr. Dholakia then submits that the Foreign Awards Act limits the right of appeal of an aggrieved party only against the decree which follows the Judgment passed by the Court in accordance with the Foreign Award, by restricting the scope of the appeal only to the aspects: whether the decree is in excess of, or not in accordance with the award. He submits that the order passed by the Court rejecting, what I may call, "objections" u/s 7 of the Foreign Awards Act, is not appealable. The submission of Mr. Dholakia is that the Letters Patent (Lahore) cannot be invoked to claim a right of appeal against the impugned order passed by the learned single Judge, as Clause 37 of the said Letters Patent itself provides that the said Letters Patent are subject to the legislative powers of the Legislature. The Legislature has enacted the Foreign Awards Act without providing for an express right of appeal against the order passed by the learned Single Judge dismissing the "objections" to the enforcement of the Foreign Award and holding the award to be enforceable. Mr. Dholakia.s further submission is that Clause 37 of the Letters Patent (Lahore) has been resorted to, to negate the reliance placed on Clause 10 of the same Letters Patent in various cases arising out of the arbitration law. He relies on the following decisions on the aforesaid aspect:
Union of India (UOI) Vs. Mohindra Supply Company,
State of West Bengal Vs. Gourangalal Chatterjee,
Union of India (UOI) and Others Vs. Aradhana Trading Co. and Others,
Milk Food Limited (Letters Patent Appeal No. 492/1998) Judgment dated February 17, 2003 (Full Bench of Delhi High Court)
Milkfood Ltd. Vs. GMC Ice Cream (P) Ltd.,
Mr. Dholakia also relies on a recent Division Bench decision of this Court in RITES Limited v. JMC Projects (India) Ltd. FAO(OS) 173/2007, decided on 18.3.2009.
The next submission of Mr. Dholakia is that the Foreign Awards Act is a special legislation whereas the Delhi High Court Act and the CPC are both general laws. He submits that the special legislation would keep away the application of the general law. Since the topic of appeal against a decree founded upon a foreign award is specifically dealt with by Section 6(2) of the Foreign Awards Act, which is a special legislation dealing with the enforcement of Foreign Awards, the general law dealing with the right of appeal i.e. Section 10 of the Delhi High Court Act would have no application. In support of this submission, Mr. Dholakia relies on Jogendra Lal Saha Vs. The State of Bihar and others, and Sanwarmal Kejriwal Vs. Vishwa Co-operative Housing Sciety Ltd. and others,
Mr. Dholakia submits that the Foreign Awards Act constitutes a complete Code and provides for all contingencies in relation to Foreign Awards made in pursuance of the New York Convention to which it applies. Consequently resort cannot be had to the general law. In support of this submission, Mr. Dholakia relies on Renusagar Power Co. Ltd. Vs. General Electric Company and Another, and Harendra H. Mehta and Others Vs. Mukesh H. Mehta and Others, .
Mr. Dholakia further submits that the Foreign Awards Act has to be read in the spirit of the New York Convention to which India is a signatory. The Foreign Awards Act was enacted to give effect to the New York Convention, the main aim whereof is to provide a framework for speedy settlement of international disputes and to encourage international trade and commerce. The introduction of a right of appeal, against the decision of the learned single Judge to enforce the award, to a Division Bench of the High Court would defeat the object with which the Foreign Awards Act was enacted. In support of this submission, Mr. Dholakia relies on Oil and Natural Gas Commission Vs. Western Company of North America, and Renusagar Power Co. Ltd. Vs. General Electric Co.,
On the other hand, the submission of Mr. Shanti Bhushan, learned senior counsel appearing for the appellant is that Section 6 of the Foreign Awards Act is para materia with Section 17 of the Arbitration Act, 1940. He submits that in spite of Section 17 of the Arbitration Act, 1940 which similarly provides that no appeal shall lie from the decree which follows the judgment passed according to the award, except on the ground that the decree is in excess of, or not otherwise in accordance with the award, a judgment and order rejecting the objections to the enforcement of the award is appealable, even if there is no separate order refusing to set aside the award and the order is a composite one. He submits that there is no reason why an order u/s 6(1) of the Foreign Awards Act, ordering the award to be filed and proceeding to pronounce judgment according to the award, cannot be appealed against merely because a decree has followed the judgment. He submits that the mere absence of a similar provision in the Foreign Awards Act to Section 39 of the Arbitration Act, 1940, which provides for an appeal against an order refusing to set aside an award, makes no material difference as a right of appeal against an order and judgment passed by a learned single Judge of this Court is vested by the Letters Patent (Lahore) and the Delhi High Court Act, which appeal lies to the Division Bench of this Court. He places reliance on Vinita M. Khanolkar Vs. Pragna M. Pai and Others, in support of his aforesaid submission. He submits that the said decision has been approved by the Constitution Bench of five Hon''ble Judges of the Supreme Court in P.S. Sathappan (Dead) by Lrs. Vs. Andhra Bank Ltd. and Others, He also places reliance on National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), to submit that when a question is stated to be referred to an established Court, without more, the ordinary incidence of procedure of that Court including the right to appeal from its decision will get attached. The appellant submits that it is in recognition of the above position that the Parliament, while enacting Section 100A in the C.P.C. (inserted by Act 104 of 1976 and substituted by Act 46 of 1999 and again by Act 22 of 2002, Section 4 w.e.f. 01.07.2002), which seeks to limit the right of appeal from an original or appellate decree or order heard and decided by a single Judge of the High Court, starts with the words:
Notwithstanding anything contained in any Letters Patent for any High Court....
He also relies of Shah Babulal Khimji Vs. Jayaben D. Kania and Another, to submit that the right of appeal under the Letters Patent is not effected by other statutory provisions relating to appeal.
He submits that in the absence of an express bar against the maintainability of a Letters Patent appeal, the appeal would be maintainable even against an appellate order. Mr. Shanti Bhushan submits that the Foreign Awards Act is silent on the aspect of appellability of an order and judgment enforcing the award. On the other hand, Section 39 of the Arbitration Act, 1940 while specifying that an appeal would lie to the Court authorized by law to hear appeals from original decrees of the Court passing the order, in respect of orders mentioned in Clauses (i) to (vi) of Section 39(1), restricts the right of appeal in respect of all other orders by using the expression: "and from no others".
Before proceeding to discuss the submissions and the case law relied upon by the parties, I think it appropriate to extract the relevant statutory provisions which have a bearing on the determination of the issue of maintainability of the present appeal. By the Letters Patent dated 21.03.1919 issued by the then Emperor of India under the Government of India Act, 1915 the High Court of Judicature at Lahore was constituted having jurisdiction, inter alia, over the provinces of Punjab and Delhi. Clause 10 of the Letters Patent (Lahore) reads as follows:
Appeals to the High Court from Judges of the Court - And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the Superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of Superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made on or after the first day of February, one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the Superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or Successors in our or their Privy Council, as hereinafter provided.
Clause 37, which is relied upon by the respondent reads as follows:
Powers of Indian Legislatures Preserved-
And We do further ordain and declare that all the provisions of these Our Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council, and also of the governor-General in Council u/s 71 of the Government of India Act, 1915 and also of the Governor-General in cases of emergency u/s 72 of that Act, and may be in all respects amended and altered thereby.
By the Indian Independence Act, 1947, dominions of India and Pakistan were created. The High Courts (Punjab) Order, 1947 established a new High Court for the territory of what was then called the East Punjab w.e.f. 15.08.1947. The India (Adaptation of Existing Indian Laws) Order, 1947 provided that any reference in an existing Indian law to the High Court of Judicature at Lahore, be replaced by a reference to the High Court of East Punjab. Subsequently, the said High Court was nomenclatured as the High Court of Punjab. The High Court of Punjab exercised jurisdiction over Delhi through a circuit Bench, which dealt with cases pertaining to the Union Territory of Delhi and the Delhi Administration. On 26th January, 1950 the Constitution of India was enforced. By virtue of Article 225 of the Constitution of India the jurisdiction, and the law administered in, any existing High Court and the respective powers of the judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate sitting of the Court and of the members thereof sitting alone or in Division Courts, as immediately before the commencement of the Constitution were preserved, subject to the other provisions of the Constitution and the provision of any law of an appropriate legislature.
The High Court of Punjab exercised jurisdiction over the Delhi region till the Parliament enacted the Delhi High Court Act, 1966. Section 5(1) of the Delhi High Court Act, 1966, provides that the High Court of Delhi shall have, in respect of the territories for the time being included in the Union Territory of Delhi, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of the territories by the High Court of Punjab. Consequently, the jurisdiction which was exercised by the High Court of Judicature at Lahore under the Letters Patent of 1919, vested initially in the Punjab High Court (earlier known as High Court of East Punjab) upon the issuance of the High Court (Punjab) Order 1947 and the Indian (Adaption of Existing Indian Laws) Order, 1947, and thereafter in the Delhi High Court under the Delhi High Court Act, 1966.
Section 10 of the Delhi High Court Act reads as follows:
Powers of Judge- (1) Where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by Sub-section (2) of Section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court.
(2) Subject to the provisions of Sub-section (1), the law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court of Punjab and with respect to all matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court of Delhi.
Section 4(1) of the CPC provides as follows:
Savings.- (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.
The Parliament enacted the Foreign Awards Act in 1961. The Preamble of the Foreign Awards Act states "An Act to enable effect to be given to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, on the tenth day of June, 1958, to which India is a party and for purposes connected therewith". The said convention has been referred to herein as the "New York Convention".
Since Mukul Mudgal, J. has returned a finding that the award in question is a "foreign award" within the meaning of that expression contained in Section 2 of the Foreign Awards Act, and I agree with the said finding, I am not delving into the definition of "foreign award".
The New York Convention, which is sought to be given effect to by the Foreign Awards Act is set out in the schedule to the said Act. Article III of the said convention reads as follows:
Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.
Sections 4, 5 & 6 of the Foreign Awards Act have been enacted to give effect to the above Article of the New York Convention.
Section 4(1) of the Foreign Awards Act states that a foreign award shall, subject to the provisions of the said Act, be enforceable in India as if it were an award made on a matter referred to arbitration in India. Section 4(2) states that any foreign award, which would be enforceable under the Foreign Awards Act shall be treated as binding for all purposes on the persons as between whom it is made and the same may be relied upon by any of those persons by way of defence, set off otherwise in any legal proceedings in India.
Section 5 provides that any person interested in a foreign award may apply to any Court having jurisdiction over the subject matter of the award that the award be filed in Court. The application in writing is to be registered as a suit between the applicant as the plaintiff and the other parties as defendants. Upon the application been filed, Court issues notice to the other parties requiring them to show cause as to why the award should not be filed.
Section 6, inter alia, provides that where the Court is satisfied that the foreign award is enforceable under the Foreign Awards Act, the Court shall order that the award be filed and shall proceed to pronounce Judgment according to the award. The same reads as follows:
Enforcement of foreign awards. - (1) Where the Court is satisfied that the foreign award is enforceable under this Act, the court shall order the award to be filed and shall proceed to pronounce judgment according to the award.
(2) Upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except in so far as the decree is in excess of or not in accordance with the award.
Article V. of the said convention reads as follows:
Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
(c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or
(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:
(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or
(b) The recognition or enforcement of the award would be contrary to the public policy of that country.
Section 7 of the Foreign Awards Act has been enacted to give effect to Article V. of the New York Convention. It enumerates the various grounds on which the enforcement of the foreign award may be opposed by the opposite party. Section 7 of the Foreign Awards Act is substantially a reproduction of Article V. of the New York Convention.
A perusal of Article II of the New York Convention shows that the purpose of the said convention is to provide recognition to an arbitration agreement in writing for settlement of differences arising between the parties in respect of defined legal relationship, whether contractual or not, concerning subject matter capable of settlement by arbitration, in the jurisdiction of the contracting States.
Article III shows that the purpose is also to grant recognition to, and enforcement of foreign arbitral awards as biding and enforceable "in accordance with the rules of procedure of the territory where the award is relied upon". It also prohibits of imposition of more onerous conditions or higher fee or charges on the recognition of enforcement of arbitral awards to which the convention applies, compared to the conditions and fees or charges imposed on the recognition or enforcement of domestic arbitral awards.
Section 6(1) of the Foreign Awards Act states that where the Court is satisfied that the foreign award is enforceable under the Act, the court shall order the award to be filed and shall proceed to pronounce judgment according to the award. Section 6(2) states that upon the judgment being pronounced, a decree shall follow and no appeal shall lie from said decree except in so far as the decree is in excess of, or not in accordance with the award.
The satisfaction of the Court with regard to the enforceability of a foreign award, or the lack of it, would find expression in an order dealing with the objections, if any, raised by the opposite party u/s 7 of the Foreign Awards Act. Even if no objections are preferred by the opposite party to the enforcement of a foreign award, the Court has to satisfy itself that:
(i) the subject-matter of the difference is not capable of settlement by arbitration under the law of India; or
(ii) the enforcement of the award will be contrary to public policy.
If the Court is satisfied after considering the objections, if any, or even in their absence, that the award is enforceable, by its order the Court shall direct the Foreign Award to be filed and shall proceed to pronounce judgment in accordance with the award. Upon the judgment being pronounced a decree follows.
Section 6, uses three expressions, namely, "order", "judgment" and "decree". "Order" is defined in Section 2(14) of the CPC to mean "the formal expression of any decision of a Civil Court which is not a decree". A "judgment" is defined in Section 2(9) of the CPC to mean "the statement given by the Jude on the grounds of a decree or order". "Decree" is defined in Section 2(2) of the CPC, and for the purposes of the present discussion means "the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties which regard to all or any of the matters in controversy in the suit and may be either preliminary or final." However, a "decree" does not include "any adjudication from which an appeal lies as an appeal from an order".
Section 6(2) of the Foreign Awards Act expresses the limits and scope of an appeal from the "decree" which follows the judgment pronounced in accordance with the award. However, Section 6(2) does not deal with the aspect of appelability of the order passed by the Court expressing its opinion that the award is enforceable under the Foreign Awards Act and that the same be filed.
The order passed by the Court u/s 6(1) would squarely fall within the meaning of the expression "judgment" as used in Clause 10 of the Letters Patent (Lahore) and explained in Shah Babulal Khimji (supra), as it is by that order that the Court decides the controversy as to whether the foreign award is enforceable or not. That order decides valuable rights of the parties and can be said to decide matters of moment effecting vital and valuable rights of the parties, which may work serious injustice to one of the parties concerned. The order passed by the Court u/s 6(1) of the Foreign Awards Act would contain the traits and trapping of finality, inasmuch as, by that order questions in controversy get finally decided so far as the Court hearing the objections u/s 7 of the Foreign Awards Act is concerned.
The Foreign Awards Act neither confers a statutory right of appeal against an order passed by the Court while ruling on the enforceability of the foreign award u/s 6(1) of the Foreign Awards Act, nor does it specifically deny such a right of appeal, if available under any other law according to the rules of procedure of the Court hearing an application (registered as a suit) u/s 5 of the Foreign Awards Act and the objections, if any, u/s 7 of the Foreign Awards Act. On the other hand, so far as the decree which follows the judgment pronounced in accordance with the award is concerned, Section 6(2) specifically limits the scope of an appeal against such a decree.
Since there is no specific bar to the maintainability of an appeal before the Division Bench against the order passed by a learned Single Judge of this Court declaring the foreign award to be enforceable under the Foreign Awards Act, and the same qualifies as a "judgment" within the meaning of Clause 10 of the Letters Patent (Lahore), unless the maintainability of an appeal under Clause 10 of the Letters Patent is either expressly barred under any other law, or is otherwise barred by necessary implication, the appeal under Clause 10 of the Letters Patent (Lahore) against the order of the learned Single Judge passed u/s 6(1) of the Foreign Awards Act would be maintainable before the Division Bench.
There is no express bar to the maintainability of the Letter Patent Appeal to be found either in the Foreign Awards Act or under any other law against an order referable to Section 6(1) of the Foreign Awards Act passed by a learned Single Judge of this Court. Therefore, one of the issues which has to be examined is whether such a bar can be inferred for the reasons that the Parliament has provided only a restricted right of appeal from a decree founded upon a foreign award u/s 6(2) and, therefore, it did intended to deny any right of appeal under any other law including the Letters Patent and the Delhi High Court Act.
Mr. Dholakia places strong reliance on Mohindra Supply Co. (supra). The issue that arose for consideration for the Supreme Court in Mohindra Supply Co. (supra) was: Whether the right to appeal under Clause 10 of the Letters Patent against the order of a learned Single Judge is at all restricted by Section 39 Sub-sections (1) and (2) of the Arbitration Act, 1940. Section 39 of the Arbitration Act, 1940 reads as follows:
Appealable orders
(1) 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 decrees of the Court passing the order: An order -
(i) superseding an arbitration;
(ii) on an award stated in the form of a special case;
(iii) modifying or correcting an award;
(iv) filing or refusing to file an arbitration agreement;
(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;
(vi) setting aside or refusing to set aside an award;
Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court.
(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.
The Supreme Court interpreted Section 39 in the light of the Letters Patent by holding that:
The legislature has plainly expressed itself that the right of appeal against orders passed under the Arbitration Act may be exercised only in respect of certain orders. The right to appeal against other orders is expressly taken away. If by the express provision contained in Section 39(1), a right to appeal from a Judgment which may otherwise be available under the Letters Patent is restricted, there is no ground for holding that Clause (2) does not similarly restrict the exercise of appellate power granted by the Letters Patent....
The Supreme Court further held that in so far as Letters Patent deal with appeals against orders passed in arbitration proceedings, they may be read subject to the provisions of Section 39(1) and (2) of the Arbitration Act. The Supreme Court held:
...The Arbitration Act which is a consolidating and amending Act, being substantially in the form of a code relating to arbitration must be construed without any assumption that it was not intended to alter the law relating to appeals. The words of the statute are plain and explicit and they must be given their full effect and must be interpreted in their natural meaning, uninfluenced by any assumptions derived from the previous state of the law and without any assumption that the legislature must have intended to leave the existing law unaltered. In our view the legislature has made a deliberate departure from the law prevailing before the enactment of Act X of 1940 by codifying the law relating to appeals in Section 39.
The submission of Mr. Dholakia that the Supreme Court altogether negatived the applicability of the Letters Patent in various cases relating to the arbitration law is not supported by the observations of the Supreme Court in Mohindra Supply Co. (supra). In fact the Supreme Court read the Letters Patent in the light of the specific restrictions contained in Section 39 of the Arbitration Act, 1940 to the maintainability of appeals. The Supreme Court has not laid down, as a matter of rule, that Clause 10 of the Letters patent (Lahore) cannot have any application in matters relating to the arbitration law.
In my view, the decision in Mohindra Supply Co. (supra) does not come to the aid of the respondent in any way. This is so because in the Foreign Awards Act there is no similar provision as Section 39 in the Arbitration Act, 1940. Section 39 specifically limits the right of appeal only to a specified category of orders, while expressly denying the right of appeal in respect of all other orders. It further completely bars the maintainability of a second appeal. As notice hereinabove, under the Foreign Awards Act there is no similar provision which expressly bars the maintainability of an appeal either generally, or in respect of any particular kind of the orders. Reliance placed on Gourangalal Chatterjee (supra) and Aradhana Trading Company (supra) is of no avail since these decisions merely follow Mohindra Supply Co. (supra).
The next decision relied upon by Mr. Dholakia is a Full Bench judgment of this Court in Milk Food Limited v. GMC Ice Cream (P) Ltd. in LPA No. 492/1998 decided on 17.02.2003. This decision, in my view, does not advance the argument of Mr. Dholakia. In fact, in para 22 of this decision the Full Court Bench, while interpreting Section 39 of the Arbitration Act in the light of Clause 37 of the Letters Patent held that Sub-section (1) of Section 39 of the Arbitration Act and Clause 10 of the Letters Patent have to be read harmoniously with a view to promote the object and spirit of the Act, and while doing so no violence should be done to the plain language in the Section. The decision of the Supreme Court in Milkfood Ltd. Vs. GMC Ice Cream (P) Ltd., affirms the decision of the Full Bench of this Court above referred to.
Reliance placed by Mr. Dholakia on a Division Bench decision of this Court in RITES Limited v. JMC Projects (India) Ltd. FAO(OS) 173/2007, decided on 18.03.2009, also appears to be misplaced. It does not support the submission of Mr. Dholkia. That case dealt with the issue of maintainability of an appeal from the decision of the learned Single Judge of this Court passed on an application u/s 8 of the Arbitration and Conciliation Act, 1996 (Act of 1996 for short). The Court considered Section 37 of the Act of 1996, which is similar to Section 39 of the Arbitration Act, 1940, and by placing reliance on Mohindra Supply Co. (supra) dismissed the appeal. For the same reasons for which Mohindra Supply Co. (supra) has no application to the facts of this case, this decision also is of no avail.
I now proceed to consider the argument of Mr. Dholakia that the Foreign Awards Act is a special legislation and the Delhi High Court Act and the CPC are both general laws, and that the special legislation would keep away the application of the general law. It is also time to consider Mr. Dholakia.s submission that the Foreign Awards Act constitutes a complete code and provides for all contingencies in relation to foreign awards made in pursuance to the convention to which it applies, and that the Foreign Awards Act has to be read in the spirit of, and keeping in view the purposes for which the New York Convention was evolved i.e. to provide a framework for speedy settlement of international disputes for encouragement of international trade and commerce.
There can be no quarrel with the proposition that the Foreign Awards Act is a special legislation vis-�-vis the Delhi High Court Act and the CPC. The Foreign Awards Act has been enacted specially to deal with arbitration agreements and awards to which the New York Convention applies. On the other hand the Delhi High Court Act and the CPC both have general application. Merely because the Delhi High Court Act is a later legislation when compared to the Foreign Awards Act, it does not necessarily follow that any part of the Foreign Awards Act stands repealed.
Justice G.P. Singh in his Principles of Statutory Interpretation 9th Edition (2004) states on page 571 that "The particular or special law deals only with a particular phase of the subject covered by the general law and, therefore, a reconciliation is normally possible between a prior particular Act and a later general Act, and so the particular Act is construed as an exception or qualification of the general Act. To quote the words of LORD PHILIMORE: "It is a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated by a posterior law, expressed in general terms and by the apparent generality of its language applicable to and covering a number of cases, of which the particular law is but one. This, as a matter of jurisprudence, as understood in England, has been laid down in a great number of cases, whether the prior law be an express statute, or be the underlying common or customary law of the country. Where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, that earlier and special legislation is not to be held indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so." Nicolle v. Nicolle (1922) 1 AC 284, p. 290 (PC). The principle has been accepted by the Supreme Court and has been expressed by MUDHOLKAR, J. as follows:
A general statute applies to all persons and localities within its jurisdiction and scope as distinguished from a special one which in its operation is confined to a particular locality and, therefore, where it is doubtful whether the special statute was intended to be repealed by the general statute the court should try to give effect to both the enactments as far as possible. Municipal Council Palai Vs. T.J. Joseph and Others, .
In support of his submission that the Foreign Awards Act would keep away the application of the general law learned senior counsel for the respondent has relied on Jogendra Lal Saha (supra). This is a decision where the Supreme Court was dealing with the Forest Act, 1927. The submission of the appellant before the Supreme Court was that the remedy available was under the Sale of Goods Act, 1930 should have been resorted to by the respondent and the summary procedure adopted by resort to the Forest Act, 1927 was unauthorized and without jurisdiction. After noticing the various provisions of the Forest Act the Supreme Court held "...it clearly follows that the entire situation has been provided for by special legislation and there is no need to fall back upon the provisions of the Sale of Goods Act to deal with the claim. There is no quarrel that a special provision would keep away the application of the general law and contracts for the sale of forest procedure have, therefore, to be covered by the provisions contained in these two Sections." Therefore, on the aspects specifically provided for and dealt with by the special legislation, the general law contained in the sale of goods was held to be not applicable.
That, however, is not the position in the facts of the present case. As noticed hereinabove the Foreign Awards Act neither creates a right of appeal against an order of a Court holding the foreign award to be enforceable and directing that it be filed, nor bars the right of appeal from such an order. There is, in fact, no conflict in the special law i.e. the Foreign Awards Act and the General Law i.e. the CPC, and the Delhi High Court Act. In any event, the argument of Mr. Dholakia that the special law keeps away the application of the general law would lose its significance in view of my following discussion and finding that the special law i.e. the Foreign Awards Act, which has to be read in the light of the New York Convention supports the view that an appeal would be maintainable from the order of the learned Single Judge of this Court on the aspect of enforceability of a foreign award, as it is a part of the rules of procedure of this Court.
Strong reliance has been placed by Mr. Dholakia on Renusagar Power Co. Ltd. Vs. General Electric Company and Another, (Renusagar 1 in short) in support of his submissions that the Foreign Awards Act constitutes a complete code and provides for all contingencies in relation to foreign awards made in pursuance to the convention to which it applies. Relevant extract in paragraph 50 of the decision relied upon by Mr. Dholakia reads as follows:
...It is obvious that since the Act is calculated and designed to subserve the cause of facilitating international trade and promotion thereof by providing for speedy settlement of disputes arising in such trade through arbitration, any expression or phrase occurring therein should receive, consisting with its literal and grammatical sense, a liberal construction. Moreover, an examination of the relevant provisions of this Act and the Arbitration Act, 1940 will show that the schemes of the two Acts are not identical and as will be pointed out at the appropriate stage there are various differences which have a material bearing on the question under consideration and as such decisions on similar or analogous provisions contained in the Arbitration Act may not help in deciding the issue arising under the Foreign Awards Act because just as the Arbitration Act, 1940 is a consolidating enactment governing all domestic awards the Foreign Awards Act constitutes a complete code by itself providing for all possible contingencies in relation to Foreign awards made pursuant to agreements to which Article II of the Convention applies. With these preliminary observations we now turn to the question of proper construction of Section 3 of the Foreign Awards Act.
The earlier part of para 50 of the Supreme Court decision in Renusagar 1 (supra), sets out the background in which and the object for the achievement of which the Foreign Awards Act was enacted. The Supreme Court observed:
...The Statement of Objects and Reasons shows that the Act seeks to achieve speedy settlement of disputes arising from international trade through arbitration. The Act is a successor to the Arbitration (Protocol & Convention) Act, 1937. The earlier Act was intended to effectuate the purposes of Geneva Convention of 1927; it was, however, felt that the Geneva Convention hampered the speedy settlement of disputes through arbitration and hence no longer met the requirements of the international trade due to certain defects and, therefore, in order to remedy, inter-alia, those defects, a craft Convention was prepared by the International Chamber of Commerce, which was considered by the United Nations Economic and Social Council in consultation with the Governments of the various countries and nongovernmental organisations and finally a new International Convention on the Recognition and Enforcement of Arbitral Awards was adopted at New York on 10th June, 1958.
Mr. Dholakia relies on following extract from para 41 of the Supreme Court decision in Renusagar Power Co. Ltd. Vs. General Electric Co., (Renusagar 2 in short):
...That Parliament did not intend to deviate from the terms of the New York Convention is borne out by the amendment which was introduced in the Act by Act 47 of 1973 after the decision of this Court in Tractoroexport case (supra) whereby Section 3 was substituted to bring it in accord with the provisions of the New York Convention. The Foreign Awards Act has been enacted to give effect to the New York Convention which seeks to remedy the defects in the Geneva Convention of 1927 that hampered the speedy settlement of disputes through arbitration. The Foreign Awards Act is, therefore, intended to reduce the time taken in recognition and enforcement of foreign arbitral awards. The New York Convention seeks to achieve this objective by dispensing with the requirement of the leave to enforce the award by the courts where the award is made and thereby avoid the problem of "double exequatur". It also restricts the scope of enquiry before the court enforcing the award by eliminating the requirement that the award should not be contrary to the principles of the law of the country in which it is sought to be relied upon. Enlarging the field of enquiry to include public policy of the courts whose law governs the contract or of the country of place of arbitration, would run counter to the expressed intent of the legislation.
The aforesaid observations of the Supreme Court in Renusagar 2 (supra) have to be read in conjunction with the submissions, in response to which the Supreme Court made the aforesaid observations. The submission of Mr. Venugopal in that case was that a departure had been made from the New York Convention while framing the Foreign Awards Act, inasmuch as, whereas under Clause 2(2)(b) of Article V. of the New York Convention it was provided that the enforcement of an arbitral award can be refused if the competent authority in the country where recognition and enforcement is sought finds that the recognition or enforcement of the award to be contrary to the public policy of that country, i.e., the country where the award is sought to be enforced. Section 7(i)(b)(ii) of the Foreign Awards Act prescribes that the foreign award may not be enforced under the said Act if the Court dealing with the case is satisfied that the enforcement of the award would be contrary to the public policy. The argument of Mr. Venugopal was that the Parliament had deliberately refrained from using the words "public policy of India" and had merely used the words "public policy", which means that the Court would also examine whether the award is contrary to the public policy of the country whose law governs the contract or of the country where the arbitration has taken place and, therefore, the enforcement of the award would be refused if it is contrary to such public policy of any of the aforesaid countries. While rejecting this submission the Supreme Court observed that the Foreign Awards Act has been enacted to give effect to the New York Convention, which seeks to remedy the defects in the Geneva Convention of 1927 that hampered the speedy settlement of disputes through arbitration. The observation of the Supreme Court that the Foreign Awards Act intends to reduce the time taken in recognition and enforcement of foreign awards has to be read in the context of the earlier prevailing convention, namely, the Geneva Convention of 1927. Earlier it was imperative to obtain the leave to enforce the award from the Courts where the award was made. This was done to avoid the problem of "double exequatur". The Supreme Court rejected the aforesaid submission of Mr. Venugopal by observing "Enlarging the field of enquiry to include public policy of the courts whose law governs the contract or of the country of place of arbitration, would run counter to the expressed intent of the legislation."
The New York Convention, which the Foreign Awards Act sought to enforce was framed to do away with the lacunae experienced in the working of the Geneva Convention of 1927.
As held by the Supreme Court, the Foreign Awards Act constitutes a complete code and provides for all possible contingencies in relation to the foreign awards made pursuant to agreements to which Article II of the convention applies. The convention provides in Article III that the contracting state shall recognize the arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon. Consequently, the rules of procedure of the Courts in the territory where the award is relied upon get incorporated in the complete code referred to by the Supreme Court which provides for all possible contingencies in relation to foreign awards.
The New York Convention does not oblige the contracting States to adversely affect the substantive rights of a party, including the right of appeal available to a party under the Rules of procedure of the Court from a judgment and order rendered by a learned Single Judge of the Court dealing with a suit u/s 5 and objections u/s 7 of the Foreign Awards Act. The New York Convention respects the rules of procedure of the contracting States, whatever they be, and does not seek to override or bypass them. It does not seek the prescription of rules of procedure for the enforcement of foreign awards different from those applicable to the Courts of the contracting State in which the foreign award is relied upon. The purport of the New York Convention is to prevent step-motherly or discriminatory treatment being meted out to a foreign award in comparison with a domestic award in a contracting State. It does not place the foreign award on a higher pedestal when compared to a domestic award, nor does it seek to place a foreign award on an expressway for its enforcement, while the domestic awards travel the normal course for their enforcement.
The Supreme Court in Vinita M. Khanolkar (supra) dealt with the issue whether an appeal would lie before a Division Bench of the High Court against the order of the Single Judge rendered in proceedings of Section 6 of the Specific Relief Act. After quoting Clause 15 of the Letters Patent by which the High Courts of Madras, Bombay and Fort William in West Bengal were created and which corresponds to Clause 10 of the Letters Patent (Lahore), the Supreme Court held as follows:
Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of High Court. Even the power flowing from the paramount charter under which the High Court functions would not get excluded unless the statutory enactment concerned expressly excludes appeals under letters patent. No such bar is discernible from Section 6(3) of the Act. It could not be seriously contended by learned Counsel for the respondents that if Clause 15 of the Letters Patent is invoked then the order would be appealable. Consequently, in our view, on the clear language of Clause 15 of the Letters Patent which is applicable to Bombay High Court, the said appeal was maintainable as the order under appeal was passed by learned Single Judge of the High Court exercising original jurisdiction of the court. Only on that short ground the appeal is required to be allowed.
In National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), , a decision rendered prior to the introduction of Section 100A in CPC, the Supreme Court considered the question whether an appeal under Clause 15 of the Letters Patent of the Bombay High Court was maintainable against the decision of the learned Single Judge of that Court by which the learned Single Judge allowed the appeal u/s 76 of the Trademarks Act and set aside the order of the Registrar, Trademarks. The Supreme Court held that the appeal under Clause 15 of the Letters Patent was maintainable. It held that though the Trademarks Act did not provide for or lay down any procedure for the future conduct or career of the appeal in the High Court, once the appeal had reached the High Court, the future course of the proceedings has to be determined according to the rules, practice and procedure of that Court and in accordance with the procedures of the charter under which the Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The Supreme Court observed that it is a well settled rule that when a statute 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. The Supreme Court quoted from National Telephone Co. Ltd. v. Postmaster-General [1913] A.C. 546 (A), which holds:
When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.
The same view had been expressed in AIR 1948 12 (Privy Council) wherein it was stated:
Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal.
To the same effect is the decision of the Privy Council in Secretary of State for India v. Chellikani Rama Rao AIR 1916 PC 21 (C), which reads as:
It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships'' opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the CPC apply.
In my view the ratio of the aforesaid decision of the Supreme Court squarely applies to the present case. The Foreign Awards Act specifically confers the power and jurisdiction on the Court to receive a foreign award and to deal with the same in the manner provided in Sections 5, 7, 8 & 6. The Foreign Awards Act is silent insofar as the aspect of appelability of an order passed u/s 6(1), which deals with the enforceability of the awards, is concerned. That being the position since the learned Single Judge of this Court is ceased of the jurisdiction conferred by Sections 5, 7, 8 & 6 of the Foreign Awards Act, a Division Bench of this Court would have the jurisdiction to hear the appeal from the order passed by the learned Single Judge u/s 6(1) of the Foreign Awards Act whereby the issue of enforceability of the foreign award is determined one way or another, by virtue of Clause 10 of the Letters Patent (Lahore) read with Section 10 of the Delhi High Court Act.
In Shah Babulal Khimji (supra) the Supreme Court held that the provisions of Section 104 read with Order 43 Rule 1 CPC are not inconsistent with the appeals under the Letters Patent and the said statutory provisions of the CPC do not disturb, interfere with or override the Letters Patent jurisdiction of the High Court. Similarly, there is nothing to show that the jurisdiction of the High Court under the Letters Patent is in any way disturbed, interfered with or overridden by any provision of the Foreign Awards Act.
The Supreme Court in Subal Paul Vs. Malina Paul and Another, held as follows:
If a right of appeal is provided for under the Act, the limitation thereof must also be provided therein. A right of appeal which is provided under the Letters Patent cannot be said to be restricted. Limitation of a right of appeal in absence of any provision in a statute cannot be readily inferred. It is now well-settled that the appellate jurisdiction of a superior court is not taken as excluded simply because subordinate court exercises its special jurisdiction. In G.P. Singh''s ''Principles of Statutory Interpretation''. It is stated:
The appellate and revisional jurisdiction of superior courts is not taken as excluded simply because the subordinate court exercises a special jurisdiction. The reason is that when a special Act on matters governed by that Act confers a jurisdiction to an established court, as distinguished from a persona designata, without any words of limitation then, the ordinary incident of procedure of that court including any general right of appeal or revision against its decision is attracted.
But an exception to the aforementioned rule is on matters where the special Act sets of it a self-contained Code the applicability of the general law procedure would be impliedly excluded. (See Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinnhji Solanki).
In my view, the principal contained in para 21 extracted above, and not the exception contained in para 22 would apply in this case. This is so because the exception would be applicable only if the special Act creates a self contained code which impliedly excludes the applicability of the general law procedure. The decision in Upadhyaya Hargovind Devshanker Vs. Dhirendrasinh Virbhadrasinhji Solanki and Others, was rendered in the light of the special provisions contained in the Representation of the People Act and in view of the special jurisdiction vested in the High Court under Article 329(b) of the Constitution. The Supreme Court held that as regards the jurisdiction to try an election petition and the right of appeal of the parties to an election petition, the provisions of the Representation of People Act constitute a complete code and no other Judge or Judges, other than the single Judge of the High Court who is asked to try an election petition and the Supreme Court exercising appellate powers u/s 116A of the Act in respect of orders passed under Sections 98 or 99 of the said Act or under Article 136 of the Constitution in respect of other orders, can have any jurisdiction to deal with any matter arising out of the eviction petition filed under the aforesaid Act. It was for the aforesaid reasons that the Supreme Court excluded the jurisdiction under Clause 15 of the Letters Patent of the Gujarat High Court. Far from excluding the applicability of the general law with regard to maintainability of appeals, the Foreign Awards Act read with the New York Convention provides for the rules of procedure of the Court to apply to the proceedings for enforcement of the foreign award.
In I.T.I. Ltd. Vs. Siemens Public Communications Network Ltd., the Supreme Court was dealing with the issue whether a revision u/s 115 of the CPC could be maintainable against an order made by a civil Court in first appeal u/s 37 of the Act of 1996. To oppose the maintainability of a revision petition, it was urged that Section 37 prohibited the maintainability of a second appeal and, therefore, by implication it should be held that even a revision is not maintainable u/s 115 of the CPC. Reliance was also placed on Section 5 of the Act of 1996 which creates a bar against judicial intervention by any judicial authority unless the same is specifically provided under part I of the Act of 1996. The Supreme Court negatived the contention that a revision petition u/s 115 CPC would not lie to the High Court against an order made by the Civil Court in an appeal preferred u/s 37 of the Act of 1996. Even though a second appeal is statutorily barred and the CPC is not specifically made applicable, the Supreme Court held that Section 37(3) of the Act of 1996 only takes away the right of second appeal to the High Court. The remedy of revision u/s 115 is neither expressly nor impliedly taken away by the said Act. In his concurrent judgment Hon''ble Mr. Justice Dharmadhikari held:
Revisional jurisdiction of superior court cannot be taken as excluded simply because subordinate courts exercise a special jurisdiction under a special act. The reason is that when a special Act on matters governed by that Act confers a jurisdiction on an established court, as distinguished from a ''persona designata'', without any words of limitation, then the ordinary incident of procedure of that Court right of Appeal or revision against its decision is attracted. The right of Second Appeal to the High Court has been expressly taken away by Sub-section (3) of Section 37 of the Act, but for that reason it cannot be held that the right of revision has also been taken away. See National Telephone Company Ltd. v. Postmaster-General and decision of the Privy Council in Adaikappa Chettiar v. Chandresekhara Thevar which have been relied by Supreme Court in case of National Sewing Thread Co. Ltd. v. James Chandwick.
There is merit in the submission of Mr. Shanti Bhushan when he places reliance on the language used in Section 100A CPC to contend that but for the said provision, a further appeal from an appellate or second appellate decree or order decided by a learned Single Judge would have been maintainable under the Letters Patent (Lahore).
In P.S. Sathappan (supra) the Supreme Court in para 30, inter alia, observed:
...It is thus to be seen that when the Legislature wanted to exclude a Letters Patent Appeal it specifically did so. The words used in Section 100A are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 a specific exclusion is provided as the Legislature knew that in the absence of such words a Letters Patent Appeal would not be barred. The Legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 in the C.P.C. Thus now a specific exclusion was provided. After 2002, Section 100A reads as follows:
100A. No further appeal in certain cases-Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge.
To be noted that here again the Legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100A no Letters Patent Appeal would be maintainable....
In Kamla Devi v. Kushal Kanwar and Anr. (2006) 13 SCC 295 the Supreme Court held:
A right of appeal under the Code is statutory. Such right of appeal is also conferred under the letters patent of the High Court or the statutes creating the High Court.
An appeal, as is well known, is the right of entering a superior court invoking its aid and interposition to redress an error of the court below The central idea behind filing of an appeal revolves round right as contradistinguished from the procedure laid down therefor.
The Supreme Court in Hoosein Kasam Dada (India) Ltd. Vs. The State of Madhya Pradesh and Others, held as follows:
...a right of appeal is not merely a matter of procedure. It is matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior court. In the language of Jenkins C.J. in Nana Bin Aba v. Shaikh bin Andu ILR (1908) Bom 337 : 10 Bom LR 330 to disturb an existing right of appeal is not a mere alteration in procedure. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication.
I may also refer to a Division Bench decision of this Court relied upon by Mr. Shanti Bhushan reported as Gurmauj Saran Baluja Vs. Mrs. Joyce C. Salim and Others, . The Division Bench held that Order 43 CPC is not exhaustive of the orders against which an appeal could be maintained. The Court held that an order under Order 1 Rule 10 CPC is not specifically made appealable under Order 43 CPC. However, when the order passed under Order 1 Rule 10 CPC amounts to a "judgment", appeal against the same would be maintainable before a Division Bench u/s 10 of the Delhi High Court Act.
In S.B.P. and Co. Vs. Patel Engineering Ltd. and Another, the Supreme Court considered the nature of power exercised by the Chief Justice of the High Court and by the Chief Justice of India u/s 11 of the Act of 1996. The Supreme Court analyzed the reason for the use of the expression "Chief Justice" in place of "Court" in Section 11 of the following words in paragraphs 15 and 18:
...Replacing of the word "court" in the Model Law with the expression "Chief Justice" in the Act, appears to be more for excluding the exercise of power by the District Court and by the court as an entity leading to obvious consequences in the matter of the procedure to be followed and the rights of appeal governing the matter.
...
...It is true that the power u/s 11(6) of the Act is not conferred on the Supreme Court or on the High Court, but it is conferred on the Chief Justice of India or the Chief Justice of the High Court. One possible reason for specifying the authority as the Chief Justice, could be that if it were merely the conferment of the power on the High Court, or the Supreme Court, the matter would be governed by the normal procedure of that Court, including the right of appeal and the Parliament obviously wanted to avoid that situation, since one of the objects was to restrict the interference by courts in the arbitral process....
I, therefore, conclude that the substantive right of appeal vested by Clause 10 of the Letters Patent (Lahore) read with Section 10 of the Delhi High Court Act is a part of the Rules and Procedure of this Court and as the New York Convention seeks the enforcement of the foreign award by following the Rules of Procedure of the Court, the order and judgment passed by the learned Single Judge of this Court while dealing with a suit u/s 5 and possible objections to a foreign award u/s 7 of the Foreign Awards Act either holding the foreign award to be enforceable or unenforceable, an appeal shall lie to the Division Bench under the Clause 10 of the Letters Patent (Lahore) read with Section 10 of the Delhi High Court Act. In my view, there is nothing to suggest in the Foreign Awards Act, by implication, that the appeal under Clause 10 of the Letters Patent read with Section 10 of the Delhi High Court Act is barred. Merely because the Foreign Awards Act specifically permits an appeal from the decree that follows the pronouncement of a judgment in accordance with the award, it does not by implication take away the right of a party to prefer an appeal, which according to the rules of procedure of this Court vest in him under the Letters Patent and the Delhi High Court.
The observations made by the Supreme Court in Oil and Natural Gas Commission Vs. Western Company of North America, to the effect that "the Court dealing with the matters arising out of arbitration agreements of the nature envisioned by the New York Convention must therefore adopt an approach informed by the spirit underlying the Convention." in my view, are also of no avail to the respondent. Neither of the aforesaid two decisions can lead to the conclusion that the right of appeal which vests in a party by virtue of the Letters Patent and Section 10 of the Delhi High Court Act, and which has not been specifically taken away by the Foreign Awards Act is intended to be taken away by an implication.
The decision in Sanwarmal Kejriwal (supra) cannot be applied in the facts of this case for the simple reason that it is nobody''s case that there are two legislations having competing provisions opening with non-obstante clause and vesting jurisdiction in different Courts. In Sanwarmal Kejriwal (supra) the Court was confronted with the Maharashtra Cooperative Societies Act on the one hand and Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 on the other hand. The question considered by the Supreme Court was whether a licencee occupying the flat as a tenant-co-partnership society could be evicted therefrom under Sub-section (1) of Section 91 of the Maharashtra Cooperative Societies Act, 1960 notwithstanding the protection extended by Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 or whether such proceedings are governed by Section 28 of the Rent Act. The Supreme Court after analyzing the provisions of both the acts concluded that the Rent Act being a special law extending protection to tenants would override the general provision relating to disputes touching the business of the society.
Before I conclude, there is one other relevant aspect that, in my view, needs to be taken note of.
The Act of 1996 was enacted by the Parliament, inter alia, "to consolidate and amend the law relating to domestic arbitration, international commerce arbitration and enforcement of foreign arbitral awards". The Arbitration (Protocol and Convention) Act 1937, The Arbitration Act 1940 and the Foreign Awards (Recognition and Enforcement) Act, 1961 were repealed by Section 85 of the Act of 1996. In Bhatia International Vs. Bulk Trading S.A. and Another, the Supreme Court held that the provisions contained in part I of the Act of 1996 are equally applicable to international commerce arbitration held outside India, unless any or all provisions of part I have been excluded by agreement between parties, expressly or by implication. This decision has been followed in Venture Global Engineering Vs. Satyam Computer Services Ltd. and Another, and the Supreme Court has held that Section 34 of the Act of 1996, which enables to a party to an arbitral award to take recourse for setting aside the award on the grounds stated in Sub-sections (2) & (3) thereof, would apply to foreign international awards and that the application of Section 34 to foreign awards would not be inconsistent with Section 48 of the said Act or with any other provision of part 2 of the said Act. I may note that Section 48 of the Act of 1996 is para materia of Section 7 of the Foreign Awards Act and Article V. of the New York Convention. Consequently, the position that emerges after the decision of the Supreme Court in Venture Global Engineering (supra) is that even a foreign international award can be challenged u/s 34 of the Act of 1996. An appeal against an order setting aside or refusing to set aside an arbitral award u/s 34 is maintainable by virtue of Section 37(1)(b) of the Act of 1996 before the Court authorized by law to hear appeals from original decrees of the Courts passing such an order. This means that an appeal against the order of the learned Single Judge passed u/s 34 in respect of a foreign international award would be maintainable before the Division Bench of this Court.
No doubt the declaration of the law by the Supreme Court in Venture Global Engineering (supra) is in respect of the Act of 1996, but one has to keep in mind the fact that one of the objects of the Act of 1996 is to recognize and enforce foreign awards as was the object and purpose of the Foreign Awards Act. It does not stand to reason that while under the Act of 1996 an appeal would be maintainable before the Division Bench against an order setting aside or refusing to set aside a foreign award by virtue of Section 37of the Act of 1996, in respect of foreign awards dealt with under the Foreign Awards Act no appeal would be maintainable against an order enforcing or refusing to enforce the foreign award passed u/s 6(1) of the Foreign Awards Act, particularly when the Act of 1996 has been enacted "to make it more responsive to contemporary requirements". The Act of 1996, inter alia, seeks "to consolidate and amend the law relating to domestic arbitration, international commerce arbitration, enforcement of foreign arbitration awards". The main objectives of the Bill introduced in Parliament leading to the enactment of the Act of 1996 includes:
(i) to comprehensively cover international and commercial arbitration and conciliation as also domestic arbitration and conciliation; (ix) to provide that, for purposes of enforcement of foreign awards, every arbitral award made in a country to which one of the two international Conventions relating to foreign arbitral awards to which India is a party applies, will be treated as a foreign award.
For all the aforesaid reasons, I am of the view that the present appeal is maintainable.