Full Judgment Text
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PETITIONER:
STATE OF WEST BENGAL
Vs.
RESPONDENT:
GAURANGALAL CHATTERJEE
DATE OF JUDGMENT11/05/1993
BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
RAMASWAMY, K.
CITATION:
1993 SCR (3) 640 1993 SCC (3) 1
JT 1993 (3) 394 1993 SCALE (2)798
ACT:
Arbitration Act, 1940: Sections 39 (1) and (2)--Letters
Patent Jurisdiction Clause 15--An appeal against the order
passed by Single Judge of High Court under Section 39
(1)--Whether appealable u/s 39 (2) or under Letters Patent
Jurisdiction--Section 39(1) itself lays down when an appeal
could be filed--Appeal held not maintainable.
HEADNOTE:
Despite several letters by the respondent to the Chief
Engineer Public works Department the State did not appoint
any Arbitrator as provided in Clause 25 of the agreement.
Shri D.K. Roy Choudhry who was appointed as a sole
Arbitrator by the learned Single Judge revoking the
authority of the Chief Engineer to act as an Arbitrator
under the agreement.
On appeal by the State under Section 39(2) of the Act or
under Letters Patent. The High Court dismissed the appeal
as not maintainable.
This appeal is against the judgment of the High Court.
Appeal dismissed,
HELD: 1.Section 39 of the Arbitration Act came upon for
consideration in U.O.I v. Mohindra Supply Company [1962]3
SCC 497 and the Court held that no Second Appeal lay under
section 39(2) against a decision given by a learned Single
Judge under Section 39(1). Arbitration Act is a
consolidating and amending act relating to arbitration, it
must be construed without any assumption that it was not
intended to alter the law relating to appeals. The Court
held that in view of bar created by sub-section (2) of
Section 39 debarring a second appeal from an order passed in
appeal under sub-section (1) that the ’conclusion was
inevitable that it was so done with a view to restrict the
right of appeal within strict limits defined by Section 39’.
Therefore the maintainability of the appeal under Letters
Patent it stands concluded by this
641
decision. (642-G-H)
2. Sub-section (1) of Section 39 of the Arbitration Act is
extracted below:-
"(1) An appeal shall lie from the following
orders passed under this Act (and from no
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others) to the Court authorised by law to hear
appeals from original decisions of the Court
passing the order.
An order-
(1) 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
Causes 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". (643-D-E-GH)
provides that an appeal could lie only from the orders
mentioned in the sub-Section itself. Since the order passed
by learned Single Judge revoking the authority of the Chief
Engineer on his failure to act as an Arbitrator was not
covered in either of the six clauses mentioned in Section 39
it is obvious that no appeal could be filed against the
order of the learned Single Judge. (644-
642
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2544 of 1993.
From the judgment and Order dated 7.5. 1992 of the Calcutta
High Court in Appeal No. Nil of 1992 in Matter No. 21 of
1991.
P.S, Poti, and S.K. Nandy for the Appellant.
K. Parasaran, A.K. Ganouli, G.K. Banerjee and. Som Mandal
for the Respondent.
The Judgment of the Court was delivered by.
R.M. SAHAI, J. The short and the only question of law that
arises for consideration in this appeal is if an appeal was
maintainable against an order passed by the Learned Single
Judge under Section 39(1) of the Arbitration Act either
under Section 39(2) of the Act or under the Letters patent
jurisdiction.
Facts are not in dispute. Since the State did not appoint
any arbitrator as provided for in clause 25 of the agreement
despite letters by the respondent to the Chief Engineer,
Public Works Department (P.W.D) and the Secretary P.W.D. the
respondent approached the High Court and a Learned Single
Judge by order dated 6th September, 1991 revoked the
authority of the Chief Engineer to act as an arbitrator and
directed one Shri D.K. Roy Chowdhury to act as the sole
arbitrator as suggested by the respondent. Against this
order State filed an appeal which has been dismissed by the
Division Bench upholding the objection of the respondent as
not maintainable. It has been held that the appeal was not
maintainable either under Section 39(2) or under Letters
Patent. It is the correctness of this view that has been
assailed in this appeal.
Section 39 of the Arbitration Act came up for consideration
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in Union of India v. Mohindra Supply Company [19621 3 S.C.R.
497. The Court after going into detail and examining
various authorities given by different High [Courts held
that no, second appeal lay under Section 39 (2) against a
decision given by a Learned Single Judge under Section
39(1). In respect of the jurisdiction under Letters Patent
the Court observed that since Arbitration Act was a
consolidating and amending act relating to arbitration it
must be construed without any assumption that it was not
intended to alter the law relating to appeals. The Court
held that in view of bar created by sub-section (2) of
Section 3 9 debarring an, second appeal from an order passed
in appeal under sub-section (1) the ’conclusion was
643
inevitable that it was so done with a view to restrict the
right of appeal within strict limits defined by Section 39’.
Therefore, so far the second part is concerned, namely, the
maintainability of the appeal under Letters Patent it stands
concluded by this decision.
The Learned counsel for the appellant vehemently argued that
since the decision by the Supreme Court was in respect of an
appeal directed against an order passed by a Learned Single
Judge in exercise of appellate jurisdiction no second appeal
lay but that principle could not be applied where the order
of Learned Single Judge was passed not in exercise of
appellate jurisdiction but original jurisdiction. The
argument appears to be without any substance as Sub-section
(1) of Section 39 which is extracted below
"(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 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 arbitratio
n
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 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."
644
provides that an appeal could lie only from the orders
mentioned in the subsection itself Since the order passed by
Learned Singe Judge revoking the authority of the Chief
Engineer on his failure to act as an arbitrator was not
covered in either of the six clauses mentioned in Section 39
it is obvious that no appeal could be filed against the
order of the Learned Single Judge.]
Reliance was placed on certain orders passed by this Court
and it was urged that settlement of dispute under clause 25
of the agreement being in exclusive domain of the Chief
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Engineer the High Court was not empowered to appoint anyone
else. The submission is devoid of any merit. It is not
made out from the agreement. Rather clause 25 itself
permits appointment of another arbitrator if the Chief
Engineer fails or omits to act as such. Relevant portion of
the agreement is extracted below
"Should the Chief Engineer be for any reason
unwiling or unable to act as such Arbitrator
such questions and disputes shall be referred
to an Arbitrator to be appointed by the
Arbitrator shall be final, conclusive and
binding on all the parties to this contract."
In one of the decisions given by this Court the order of the
High Court was set aside as the dispute being technical in
nature the appointment of anon-technical arbitrator was not
justified. Here in this the High Court has appointed a
retired Chief Engineer and not a non-technical man. No
allegation has been made against him. Therefore, the order
of the learned Single Judge also does not suffer from any
infirmity.
In the Circumstances the view taken by the Division Bench
dismissing the appeal as not maintainable appears to be well
founded. The appeal accordingly fails and is dismissed with
costs.
S.K.
Appeal dismissed.
645