Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 1273 (KAR)

A. P. Thomas v. Union of India

2013-11-06

ARAVIND KUMAR

body2013
Judgment : 1. These appeals have been preferred by the claimant under sub-section(2) of Section 37 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘Act’ for the sake of brevity). Being aggrieved by the Judgment and decree passed by VI Additional City Civil Judge, Bangalore City in A.S.Nos.23/2004, 22/2004 and 24/2004 dated 21.11.2008 whereunder petition filed by the claimant to set aside the order/award dated 21.02.2004 passed by Sole Arbitrator ruling that Arbitral Tribunal has no jurisdiction to go into the matters and terminating the proceedings has been dismissed. 2. I have heard the arguments of Sri. A.G. Shivanna, learned counsel appearing for claimant and Sri. Abhinay, learned counsel appearing on behalf of Sri. N.S. Sanjay Gowda for Respondents 1 and 2. 3. Sri. Abhinay, learned counsel appearing on behalf of Sri. N.S. Sanjay Gowda for Respondents 1 and 2 has raised an initial objection with regard to maintainability of these appeals, contending interalia that sole Arbitrator had accepted the plea put forward by respondent regarding jurisdiction of the arbitral tribunal after examining the rival contentions and by award/order dated 21.02.2004 has ruled that the arbitral tribunal has no jurisdiction to go into the matter by terminating the proceedings against which claimant filed an application under section 34 of the Act before Civil Court which came to be examined by the jurisdictional court as an appeal under sub-section (2) of section 37 which order is now being assailed in the present appeal by invoking sub-section(2) of section 37 and contends against an order passed under sub-section (2) of section 37 by the competent court to set aside the award, there cannot be any second appeal against such order under Arbitration Act, 1996 since it does not provide for such second appeal. Hence, he prays for rejection of these appeals. 4. Per contra, Sri. Hence, he prays for rejection of these appeals. 4. Per contra, Sri. A.G. Shivanna, learned counsel appearing for claimant would contend that sub-section (4) of section 16 would provide for an aggrieved party namely a party who is aggrieved by an order passed by Arbitral Tribunal under sub-section(2) or sub-section (3) of section 16 to invoke section 34 of the Act and as such the application filed by the claimant before the court of original jurisdiction i.e., City Civil Court to set aside the awards passed by arbitral tribunal by invoking section 34 was required to be treated as such and order passed by the said court rejecting the application would entitle the claimant to seek for setting aside such order under clause (b) of sub-section (1) of section 7 of the Act. Hence, he prays for rejecting the plea put forward with regard to maintainability of the present appeals and prays for examining the claim on merits. 5. In view of the rival contentions raised I am of the considered view that following points would arise for my consideration: “(1) Whether the objection raised by respondents regarding maintainability of these appeals is to be upheld or rejected? (2) Whether order dated 21.11.2008 passed by VI Additional City Civil Court, Bangalore rejecting the application of the claimant and affirming the Award/order dated 21.02.2004 passed by Arbitral Tribunal suffers from any infirmity calling for interference by this court? (3) What order?” 6. In view of rival contentions raised with regard to maintainability of appeals it would be necessary to state the factual matrix leading to filing of these appeals and take note of the relevant provisions which govern the issue on hand or the provisions which have a bearing on the contentions raised and as such following provisions of the Arbitration and Conciliation Act, 1996 are extracted herein below after narrating the factual background: I- FACTUAL BACKGROUND: 7. Facts in brief leading to filing of these appeals are as under: Claimant is a contractor and in respect of works carried out by him of augmentation scheme namely clearing scrap and limestone’s and other debris available in the scrap bins of Wheel shop in connection with the proposed installation of 3rd Arc furnace at Wheel and Axle Plant, Yelahanka, Bangalore claimant raised the demand for payment of certain amounts. On a request made by the claimant for appointment of arbitrator being turned down, he approached this court for appointment of an Arbitrator under section 11 and said petition came to be allowed and sole arbitrator was appointed. During the course of the proceedings respondent filed an application raising objection to the maintainability of claim petitions and the jurisdiction of the arbitral tribunal to proceed with the arbitration proceedings came to be questioned. Said application came to be considered by arbitral tribunal. It was held that the matters alleged by the claimant is deemed to be ‘excepted matters’ and as such it held that it had no jurisdiction to arbitrate the same and accordingly proceedings of arbitral tribunal came to be terminated by order dated 21.02.2004. In other words the arbitral tribunal held that it had no jurisdiction to adjudicate the dispute. 8. Being aggrieved by this order petition under section 34 of the Act came to be filed praying for setting aside award/order dated 21.02.2004 passed by arbitral tribunal before the jurisdictional court. 9. Trial court examined the award passed by Arbitral Tribunal by treating the application/petition filed under section 34 as an appeal under section 37(2) of the Act and proceeded to adjudicate the dispute on merits as well and after considering the rival contentions dismissed the petition filed under section 34 of the Act by construing it as an appeal under section 37 of the Act by order dated 21.11.2008. II ANALYSIS OF STATUTORY PROVISION: “2(d) arbitral tribunal” means a sole arbitrator or a panel of arbitrators; 2(e) “Court” means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes; 16. Competence of arbitral tribunal to rule on its jurisdiction. Competence of arbitral tribunal to rule on its jurisdiction. - (1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,- a. an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and b. a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator. (3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. (4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay justified. (5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award. (6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34. 34. Application for setting aside arbitral award.- (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if- a. the party making the application furnishes proof that- i. a party was under some incapacity, or ii. the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or iii. the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or iv. the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or iv. the arbitral award deals with a dispute 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, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or v. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or b. the Court finds that- i. the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or ii. the arbitral award is in conflict with the public policy of India. Explanation – Without prejudice to the generality of sub-clause (ii) it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. 4. 4. On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award. 37. Appealable orders. - 1. 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) granting or refusing to grant any measure under section 9; (b) setting aside or refusing to set aside an arbitral award under section 34. 2. Appeal shall also lie to a Court from an order granting of the arbitral tribunal- a. accepting the plea referred in sub-section (2) or sub-section (3) of section 16; or b. granting or refusing to grant an interim measure under section 17. 3. 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. 10. It is not in dispute that an arbitral tribunal is competent to rule on its own jurisdiction under sub-section (1) of Section 16. Sub-section (2) of section 16 would also empower the arbitral tribunal to permit such plea being raised at a later stage also though plea regarding jurisdiction should be raised not later than submission of statement of defence. Similarly under sub-section (3) a party to the arbitral proceedings/tribunal is entitled to raise a plea regarding arbitral tribunal exceeding its scope of authority during such arbitral proceedings. In either of such event occurring tribunal is required to examine such a plea and take a decision thereon. Sub-section(6) of section 16 provides or enables an aggrieved person to make an application for setting aside such arbitral award in accordance with section 34. Section 16 and 17 falls under Chapter IV of the Act. 11. Chapter VII of the Act provides for recourse against an arbitral award. Section 34 enables the recourse that can be taken by an aggrieved person against the arbitral award for setting aside award in accordance with sub-section (2) and (3) of Section 34. Section 16 and 17 falls under Chapter IV of the Act. 11. Chapter VII of the Act provides for recourse against an arbitral award. Section 34 enables the recourse that can be taken by an aggrieved person against the arbitral award for setting aside award in accordance with sub-section (2) and (3) of Section 34. Clause (a) (i) to clause (v) mandates the court to set aside the award if any ingredients of these clauses are satisfied. Sub-section(3) of section 34 provides for limitation to file such an application namely three months from the date on which the aggrieved party has received the arbitral award. 12. Chapter IX of the Act provides for appeals. Sub-section(1) of section 37 provides for filing of an appeal under two eventualities or circumstances namely (i) granting or refusing any measure under section 9; (ii) setting aside or refusing to set aside an arbitral award under section 34. In a given situation if an arbitral tribunal exercising power under section 16 rules with regard to its own jurisdiction then the aggrieved party would be entitled to file an appeal under sub-section (2) of section 37 to a ‘Court’ as defined under the Act. Sub-section (3) creates a bar for filing second appeal without taking away the right of appeal to the Supreme Court. 13. As already noticed herein above sub-section (6) of Section 16 enables an aggrieved party to make an application for setting aside an arbitral award in accordance with section 34 where the arbitral tribunal rules on its own jurisdiction. The words used in sub-section (6) of Section 16 would have relevancy namely the aggrieved party can make an application for setting aside such arbitral award “in accordance with section 34”. Section is clear, unambiguous and specific. As such there is no need to undertake an exercise to ascertain the intent of the legislature to understand the meaning of the words found sub-section (6) of Section 16. Resorting to interpretative process in order to unfold the meaning is impermissible when the language of the legislature is clear and unambiguous as held by Hon’ble Apex Court in the case of M/s. Keshavji Ravji and Co., Etc., Etc., Vs Commissioner of Income Tax reported in AIR 1991 SC 1806 whereunder it has been held as under: “The premise of the argument is good in parts; but the inference does not logically follow. Section 40(b), it is true, seeks to prevent the evasion of tax by diversion of the profits of a firm; but the legislative expedience adopted to achieve that objective requires to be given effect on its own language. Section 40 opens with the non-obstante clause and directs that certain outgoings specifically enumerated in it “shall not be deducted” in computing the income chargeable under the head “profits and gains of business or profession”: As long as there is no ambiguity in the statutory language, resort to any interpretative process to unfold the legislative intent becomes impermissible. The supposed intention of the legislature cannot then be appealed to whittle down the statutory language which is otherwise unambiguous. If the intendment is not in the words used it is nowhere else. The need for interpretation arises when the words used in the statute are, on their own terms, ambivalent and do not manifest the intention of the Legislature. In Doypack Systems Pvt. Ltd. v. Union of India, [1988] 2 SCC 299:( AIR 1988 SC 782 ) it was observed: “The words in the statute must, prima facie, be given their ordinary meanings. Where the grammatical construction is clear and manifest and without doubt, that construction ought to prevail unless there are some strong and obvious reasons to the contrary……“ (p. 331)(of SCC): (at P.301 of AIR). “It has to be reiterated that the object of interpretation of a statute is to discover the intention of the Parliament as expressed in the Act. The dominant purpose in construing a statute is to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context. That intention, and therefore the meaning of the statute, is primarily to be sought in the words used in the statute itself, which must, if they are plain and unambiguous, be applied as they stand……” (p. 332) (of SCC): at P.801 of AIR) (Emphasis Supplied) Artificial and unduly latitudinarian rules of construction which, with their general tendency to “give the tax- payer the breaks”, are out of place where the legislation has a fiscal mission. Indeed, taxation has ceased to be regarded as an “impertinent intrusion into the sacred rights of private property” and it is now increasingly regarded as a potent fiscal-tool of State policy to strike the required balance-required in the context of the felt needs of the times—between citizens” claim to enjoyment of his property on the one hand and the need for an equitable distribution of the burdens of the community to sustain social services and purposes on the other. These words of Thomas M. Cooley in ‘Law of Taxation’ Vol.2 are worth mentioning; “Artificial rules of construction have probably found more favour with the courts than they have ever deserved. Their application in legal controversies has often times been pushed to an extreme which has defeated the plain and manifest purpose in enacting the laws. Penal laws have sometimes had all their meaning construed away and in remedial laws, remedies have been found which the legislature never intended to give. Something akin to this has befallen the revenue laws……” (Emphasis Supplied) There are, indeed, strong and compelling considerations against the adoption of the test suggested by Sri Ramachandran. Limiting of the ambit of Section 40(b) on the supposed ‘real income’ test would, perhaps, lead to positions and results, whose dimensions and implications are not, to say the least, fully explored. The test suggested by Sri. Ramachandran, might on its own extended logic, validate a set-off of the interest paid to one partner against interest received from another and likewise, ‘interest’ received from one partner on some other dealings between him and the firm against interest paid to another partner on his or her capital contribution. The test of ‘real income’ as one on which the operation of Section 40(b) could be sought to be limited is not a reliable one. Indeed, the following observations of this court on the concept of ‘real income’ in State Bank of Travancore v. C.I.T. [1986] 158 ITR 102 at P.155: ( AIR 1986 SC 757 at P.788), though made in a different context, are apposite: “……The concept of real income is certainly applicable in judging whether there has been income or not but, in every case, it must be applied with care and within well-recognised limits. We were invited to abandon legal fundamentalism. We were invited to abandon legal fundamentalism. With a problem like the present one, it is better to adhere to the basic fundamentals of the law with clarity and consistency than to be carried away by common clinches. The concept of real income certainly is a well-accepted one and must be applied in appropriate cases but with circumspection and must not be called in aid to defeat the fundamental principles of the law of Income-tax as developed”. This contention of Sri. Ramachandran rests on generalisations which incur the criticism of being too broad and have certain limitations of their own”. 14. Keeping the above said principles in mind when the provisions of the Act namely sub-section (6) of Section 16 and sub-section (2) of section 37 are read conjointly it would clearly indicate that against an order passed either under sub-section (2) or sub-section (3) of section 16 namely accepting the plea either regarding jurisdiction or regarding exceeding the scope of its authority, the only recourse that can be taken by an aggrieved person would be to file an appeal under sub-section (2) of section 37. Though the words used in sub-section (6) of section 16 indicate that an aggrieved person is entitled to file an application ‘in accordance with section 34’ it does not imply or mean or include that the application is to be filed ‘under’ section 34. It is this marked difference which requires to be noticed. Sub-section (3) of section 37 creates an embargo for filing second appeal. The mere use of the words in sub-section (6) of section 16 ‘in accordance with section 34’ by itself cannot be a ground to contend that even in circumstances where the arbitral tribunal rules on its jurisdiction it is to be construed as an ‘arbitral award’ to bring within the scope or ambit of section 34 exhaustively. The mere use of the words in sub-section (6) of section 16 ‘in accordance with section 34’ by itself cannot be a ground to contend that even in circumstances where the arbitral tribunal rules on its jurisdiction it is to be construed as an ‘arbitral award’ to bring within the scope or ambit of section 34 exhaustively. As rightly contended by learned counsel appearing for respondent sub-section (2) and (3) of section 34 would only indicate the grounds on which such arbitral award can be challenged and as such a petition filed by the aggrieved party challenging an order passed under sub-section (2) or (3) of section 16 cannot be brought within the ambit of section 34 to contend that the court of original jurisdiction is empowered to consider the same as though it is a suit or a application or a petition to be adjudicated and on such adjudication the aggrieved party will have a further right of appeal under clause (b) of sub-section (1) of section 37. Any other interpretation if sought to be put would render sub-section (3) of section 37 nugatory or the very purpose of sub-section (3) gets defeated. A harmonious reading of sub-section (1) and (2) of section 37 would clearly indicate that an appeal would lie against granting or refusing to grant an interim measure under section 9 or setting aside or refusing to set aside an arbitral award under section 34 to the ‘court’ authorised by law to hear appeals from original decrees of the ‘court’ passing the order. The definition of the word ‘court’ as defined under section 2(e) of the Act will have bearing. The court as defined under section 2(e) would be the Principal Civil Court of original jurisdiction in a District and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the question being the subject matter of arbitration but it does not include any Civil Court of grade inferior to Principal Civil Court or any court of Small Causes. It can be noticed that when an application is filed under section 34 to set aside an arbitral award passed either allowing the claim petition or dismissing then recourse to an aggrieved party would be to file a petition or an application under section 34 to set aside such award on the grounds enumerated in sub-section(2) of Section 34 and such ‘court’ of ordinary original civil jurisdiction passing an order appeal would lie to a court which hears the appeal or original decrees. It is in this background the words found in sub-section (1) of section 37 namely the words “court passing the order” would acquire significance. If the intent of the legislature were to confer jurisdiction in one court the appellate jurisdiction it would have found a place so in the enactment or the section itself. In sub-section(2) the word “authorised by law to hear appeals from original decrees” is conspicuously absent. The only word used in sub-section (2) is “An appeal shall also lie to a court from an arbitral award”. Thus, we will have to fall back upon the word ‘court’ as defined under section 2(e) to discern the meaning or intent of sub-section (2) of section 37. When such an exercise is undertaken the one and only conclusion that can be drawn would be the ‘court’ as defined under section 2(e) alone will have jurisdiction to hear an appeal filed by an aggrieved person challenging the order passed by arbitral tribunal under sub-section (2) and (3) of section 16 as the case may be. At the cost of repetition it requires to be noted it is because of this precise reason a second appeal to the High Court is excluded or in case of High courts exercising original jurisdiction there cannot be letters patent appeal to a Division Bench and a bar is created under sub-section (3) of section 37 for filing second appeal. At the cost of repetition it requires to be noted it is because of this precise reason a second appeal to the High Court is excluded or in case of High courts exercising original jurisdiction there cannot be letters patent appeal to a Division Bench and a bar is created under sub-section (3) of section 37 for filing second appeal. Infact a Division Bench of the Delhi High Court in the case of Cref Finance Limited Vs Puri Construction Ltd., and others reported in AIR 2001 Delhi 414 while examining as to whether a second appeal would lie before a Division Bench against an order passed under sub-section (2) of section 37 by a Single Judge exercising the power of the original jurisdiction under clause (e) of section 2 of the Act held that such a second appeal is impermissible after analysing section 16 and section 37 of the Act. It has been held by the Division Bench as under: “21. Sub-section (1) of Section 16 provides that arbitral tribunal may rule on its own jurisdiction including ruling on any objection with respect to authority of arbitration agreement, and for that purpose a plea that it does not have jurisdiction shall not be raised not later than the submission of the statement of defense as stipulated in sub-section (2). However, a party shall not be precluded from raising such a plea merely because he has appointed, or participated in the appointment of an arbitrator. Similarly, sub-section (3) of section 16 provides that a plea to the effect that arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. However, tribunal has the power to admit a belated plea notwithstanding the time stipulation in sub-sections (2) and (3) if it considers that delay was justified. Subsection (5) provides that arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub section(3) and where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award. Appeal which was dealt with by learned Single Judge was filed in this Court under sub-section (2) of Section 37. According to the appellant the same related to the situation encompassed by sub-sections (2) and (3) of Section 16. Appeal which was dealt with by learned Single Judge was filed in this Court under sub-section (2) of Section 37. According to the appellant the same related to the situation encompassed by sub-sections (2) and (3) of Section 16. A perusal of the order passed by the learned Single Judge shows that he has examined as to how the appeal was not maintainable. To put it differently, learned single Judge considered the question of maintainability on merits. Maintainable means capable or fit to be maintained. To maintain an action is not always the same as bringing an action, it connotes the idea of supporting an action which has already been brought. When an aggrieved approaches the appellate forum with a prayer for modification of the inferior authority, there would be an appeal. The appeal may have very many defects or disabilities; some of them may be even fatal. The defects and the disabilities of the appeal would not obliterate the factual existence of the appeal. In a sense, it may be a stillborn one, never having had a life in it, when it was presented before the appellate venue. Still the law would deem that there was an appeal carried right up to the portals of the appellate forum. This appears to be the position in relation to the birth, life and ultimate end of an appeal. Similar view was expressed in Thankappan v. Trivandrum Dist. Co-op Bank Ltd, AIR 1987 Ker 1 . When an appeal is held to be non-maintainable, it involves an adjudication of that question. Where an appeal is held to be not maintainable without any discussion what, would be its effect is not for consideration in this case. In fact, learned single Judge analysed as to why he felt the appeal before him not to be covered by Section 37(2). Therefore, there was adjudication on merits regarding maintainability. The situation may be contextually and conceptually different where an appeal is held to be not maintainable or entertainable on the ground of its belated presentation or such other technical defects. It would depend upon the statutory back ground of the case e.g. Mala Ram’s case ( AIR 1956 SC 367 ) (supra) The consideration of merits for the purpose of finding out maintainability invests the order passed with the characteristics of an order in appeal or on appeal. It would depend upon the statutory back ground of the case e.g. Mala Ram’s case ( AIR 1956 SC 367 ) (supra) The consideration of merits for the purpose of finding out maintainability invests the order passed with the characteristics of an order in appeal or on appeal. The matter can also be looked at from another angle. Learned Single Judge’s consideration or examination of the question as to whether the appeal was maintainable or not was done in the appellate jurisdiction. There is no other jurisdiction under which such a consideration or examination could have been undertaken by learned Single Judge. It could not be shown to us by learned counsel for the appellant that there was any other jurisdiction which authorised or permitted such examination or consideration. The inevitable conclusion, therefore is that the order was passed by the learned Single Judge in exercise of the appellate jurisdiction. 22. In view of the analysis made above, the following conclusion are inevitable. (1) Learned Single Judge’s order was passed in exercise of appellate jurisdiction; (2) Such order is an order in appeal or on appeal; (3) In view of the conclusions (1) and (2) above, the present appeal is a second appeal which is not maintainable in the light of Section 37(3) of the Act. (4) LPA also is not maintainable. The appeal is dismissed as not maintainable. 15. In the light of the above referred judgment and also contention raised by learned counsel for respondent regarding maintainability of these appeals has to be held in favour of respondent by answering Point No.1 formulated herein above in the affirmative. Hence, order passed by the trial court construing the application filed under section 34 of the Act and treating it as an appeal under sub-section (2) of section 37 and adjudicating the same on merits would bar a second appeal under sub-section (3) of section 37. Hence, these appeals are liable to be dismissed. RE: POINT NO.2: Perusal of the award would indicate that for non payment of successfully completed work on time, dispute has arisen between the parties. The claim statement filed by the claimant relates to execution and quality of work as also the measurement of the work (Re: MFA 2603/2009). Hence, these appeals are liable to be dismissed. RE: POINT NO.2: Perusal of the award would indicate that for non payment of successfully completed work on time, dispute has arisen between the parties. The claim statement filed by the claimant relates to execution and quality of work as also the measurement of the work (Re: MFA 2603/2009). Arbitrator as well as the trial court has rightly held that it comes squarely within the purview of clause 22.5 of GCC and stands excluded from the arbitration as provided in clause 63 of GCC. The said finding does not suffer from any infirmity. It has also been observed by the trial court that not permitting the claimant to pay arbitration fee in instalments and passing of the award on preliminary issue does not amount to misconduct. Infact section 38 of the Act enables the Arbitrator to suspend the proceedings where a party does not pay his share of the cost. Hence, the trial court has found that nothing wrong can be attributed to the learned Arbitrator for payment of his fees and arbitration costs and such insistence would not amount to misconduct by the Arbitrator in all these appeals. Hence, Point No.2 formulated hereinabove has to be answered in the negative. RE: POINT NO.3: For the reasons aforesaid following order is passed: ORDER (i) Appeals are hereby dismissed as not maintainable. (ii) Parties to bear their respective costs.