Research › Search › Judgment

Allahabad High Court · body

2000 DIGILAW 932 (ALL)

SUMIT BUILDERS v. PRAGATISHEEL SHIKSHA SAMITI

2000-07-20

D.K.SETH, IKRAM-UL-BARI

body2000
D. K. SETH, IKRAM-UL-BARI, JJ. ( 1 ) TWO proceedings were initiated under Section 9 of the Arbitration and Conciliation Act, 1996. being Regular Suit Nos. 22 and 23 of 1998. In both these cases, the appellant was opposite party no. 1. By an order dated 27. 8. 1999. the said proceedings were disposed of finally granting protection to the applicants therein. It is submitted on behalf of the appellants that applicants had preferred an appeal before this Court against the said order dated 27. 8. 1999 which Is pending. The appellants subsequently filed an application for modification or recalling or setting aside the order dated 27. 8. 1999 passed in the said two cases. This application was rejected by an order dated 11. 4. 2000 on merits. It is this order against which the present appeal has been preferred under Section 37 of the said Act. ( 2 ) THE question for determination that arises in this case, is as to whether the order dated 11. 4. 2000 is an order within the meaning of Section 9 of the said Act and as such appealable under Section 37 (1) (a) of the said Act. ( 3 ) LEARNED counsel for the appellant submits that this order dated 11. 4. 2000 is an order within the meaning of Section 9 of the Arbitration Act since the protection claimed by the appellants has been refused. He refers to the concluding part of the order dated 27. 8. 1999 and contends that by reason of the liberty given tn the said order, the application for modification was made. Therefore, the order dated 11. 4. 2000 is an order even when modification is refused, within the meaning of Section 9 of the said Act. He further contends that in case the appeal is not maintainable, then the same may be converted into a petition under Article 226 or 227 of the constitution of India and the Court may invoke its jurisdiction since the order dated 27. 8. 1999 was wholly without Jurisdiction. He had also addressed the Court on merits of the case. ( 4 ) WE are afraid that we could hear, him on the question of merits of the case at this stage so long, we do not find that the appeal Is maintainable. 8. 1999 was wholly without Jurisdiction. He had also addressed the Court on merits of the case. ( 4 ) WE are afraid that we could hear, him on the question of merits of the case at this stage so long, we do not find that the appeal Is maintainable. We, therefore, propose to decide the question as to whether the appeal is maintainable or, in other words, whether the order dated 11. 4. 2000 is an order within the meaning of Section 9 of the said Act. ( 5 ) WE have heard Mr. Surya Kant, the learned counsel at length. The Arbitration and conciliation Act is a special statute creating special rights as also special jurisdiction. Section 9 prescribes that pending enforcement of an arbitration award or before or during the arbitraral proceedings, a party may apply for interim measures to be granted by the Court for the purposes mentioned in Clauses (i) and (ii) of Section 9. The proceedings being Regular Suit Nos. 22 and 23 of 1998 were initiated by the respondents respectively under Section 9 of the said Act seeking interim measure of protection in respect of Clause (a) of Clause (ii), namely, preservation or sale of the subject-matter of the arbitration agreement. This was disposed of by order dated August 27, 1999. It may be a fact, that the appellant did not file a detailed objection but it was noted that opportunity was given to the appellant. in the concluding part of the order, it was mentioned that any party is authorised to approach the Court for appropriate order of protection in respect of arbitration agreement. That liberty was granted that if any party approached the Court for modification of the order, the same would be considered on merits. The meaning of liberty is to the extent that if any party approaches the Court for seeking protection as provided in Section 9, then a fresh order would be passed under Section 9. The petitioner has not approached the Court under Section 9 for seeking any protection. On the other hand, he has simply approached the court for modification of the order on the basis of certain material which could not be produced by him at the time when the matter was disposed of. This may be a good ground for seeking review of the order dated 27. 8. On the other hand, he has simply approached the court for modification of the order on the basis of certain material which could not be produced by him at the time when the matter was disposed of. This may be a good ground for seeking review of the order dated 27. 8. 1999 but it cannot be treated to be an application under Section 9 of the said Act. ( 6 ) THE counsel for the appellants contends that no review is permissible so far as proceeding under the said Act before the Court is concerned. This submission does not appear to be sound inasmuch as the Act does not provide any procedure with regard to the appeal and the proceedings except providing the substantive provision for relevant provisions as mentioned in different Sections. Section 108 of the Code of Civil Procedure prescribes in subsection (ii) that provision of the Code would apply to all appeals arising out of special statute if no procedure Is provided. Similarly, Section 141 of the Code provides that procedure is also applicable to a proceeding before a civil court except those under Article 226 of the Constitution of India. Thus, in the absence of any provision contained in the Act excluding application of the provision of the code, it would be applicable to the proceeding. Thus, review of the order dated 27. 8. 1999 would very well be maintained and thus in effect the application that was made is an application for review of the order dated 27. 8. 1999. ( 7 ) SECTION 37 provides for appeal. In sub-section (1), it prescribes that the appeal shall lie from the orders mentioned in Section 37 and from no other orders. Section 37 (1) prescribes in clauses (a) and (b) that an order passed by a Court in a proceeding under the said Act would be appealable if those were passed under Section 9 or under Section 37 of the said Act. Clause (a.)also clarifies the extent of the order under Section 9 which is appealable. It prescribes that granting or refusing to grant any measure under Section 9 only is appealable. Now an order passed on a review application is not an order within a meaning of subsection (1) of Section 37 to the extent of an order under Section 9 refusing to grant any measure. It prescribes that granting or refusing to grant any measure under Section 9 only is appealable. Now an order passed on a review application is not an order within a meaning of subsection (1) of Section 37 to the extent of an order under Section 9 refusing to grant any measure. On the other hand, the court had simply refused to review the order. Thus, the order cannot be treated to be an order within the meaning of Section 9 of the Act. The order that was passed on 27. 8. 1999, was not an order under Section 9 of the said Act which was appealable. The order dated 11. 4. 2000 seeking review of the said order by no stretch of imagination could be treated to be an order granting or refusing any measure under Section 9 of the said Act. In effect it is an order refusing review. ( 8 ) THE appellant was a party to the proceedings. He had a right of appeal against the order dated 27. 8. 1999. That apart, when an appeal could admittedly had been filed by one or the other respondent. It was open to him to file a cross-objection under Order XLI, Rule 22 of the Code. Learned counsel for the appellants has again contended that provisions of Order XLI. Rule 22. C. P. C. cannot be attracted in a proceedings under this Act. For the same reasons as discussed hereinbefore, in the absence of the any specific provisions in the Act excluding application of the code, provisions of Order XLI, Rule 22 is equally applicable in an appeal under Section 47 of this Act in view of Section 108, C. P. C. ( 9 ) THUS, the appellant was not without remedy with regard to order dated 27. 8. 1999 against which he could prefer an appeal or file cross-objection in connection with the appeal already filed to which he Is a party. It Is contended by the counsel for the appellants that the material which could not be produced at the time when order dated 27. 8. 1999 was passed, would not be on record in the appeal. Therefore, according to him, the review was the appropriate remedy available to him. Be that as it may. in view of Section 108 of the Code of Civil Procedure in the absence of any procedure prescribed in the Act. 8. 1999 was passed, would not be on record in the appeal. Therefore, according to him, the review was the appropriate remedy available to him. Be that as it may. in view of Section 108 of the Code of Civil Procedure in the absence of any procedure prescribed in the Act. C. P. C. being applicable Order XLI, Rule 27 is equally applicable under which the appellant could bring on record by way of additional evidence if he was unable to produce those material at the time of disposal of the proceedings provided he could fulfil the conditions mentioned therein. ( 10 ) THUS, despite the liberty granted at the concluding part of the order dated 27. 8. 1999 in view of the legal position as discussed above, order dated 11. 4. 2000 cannot be treated to be an order within the meaning of Section 9 of the said Act and the petition that he had filed, he had never sought for any protection by way of interim measure. On the other hand, he simply prayed that recalling, modification or setting aside of the order which is in fact is a relief seeking review of the order. An order seeking review is not appealable under Section 37 of the said Act. ( 11 ) COUNSEL for the appellants further contends that leave may be granted to convert the memo of appeal into the petition under Article 226/227 of the Constitution of India. So far as Article 226 is concerned, the same cannot be attracted In respect of a decision of civil court Inasmuch as the court while discharging judicial function is neither a party to the lis nor is a State within the meaning of Article 12 of the Constitution in order to enforce any writ as against the Court. Therefore, the prayer made by the petitioner cannot be acceded to. ( 12 ) SO far as prayer for conversion of memo of appeal into an application under Section 227 is concerned, this Court has power of superintendence over all Courts and Tribunals subordinate to it. Therefore, Article 227 can be resorted to but this provision is a discretionary provision to be exercised judicially by the Court. ( 12 ) SO far as prayer for conversion of memo of appeal into an application under Section 227 is concerned, this Court has power of superintendence over all Courts and Tribunals subordinate to it. Therefore, Article 227 can be resorted to but this provision is a discretionary provision to be exercised judicially by the Court. We have gone through the orders and according to us, we do not find any reason to invoke this power of Superintendence in the facts and circumstances of the case particularly when he had/has a remedy by way of appeal against the order dated 27. 8. 1999 as well as through a cross-objection that he may file in the pending appeal against the said order. In that view of the matter, we feel that this case is not a fit one in respect whereof we may exercise our jurisdiction to Invoke Article 227. For this reason we are unable to accept the prayer of learned counsel for the appellants. ( 13 ) SINCE we have found that this is not an order within the meaning of Section 9 and as such. Is not appealable under Section 37 of the Act, we hold that the appeal is not maintainable and as such, this appeal Is dismissed. However, we may record that we have not entered into the merits of the case. This order would not prevent the appellants to seek any other remedy that might be open to him before any other forum to which he may resort to or he may be advised to resort to. No costs. .