JUDGMENT : Girish Chandra Gupta, J. Re : FAT No.002 of 2015, CAN No.091 of 2015 (Limitation) CAN No.092 of 2015(Stay) Before taking up the appeal for hearing, we condoned the delay being satisfied with the grounds made in the applications under section 5 of the Limitation Act. 2. Both the appeals raise a common question of law as regards the maintainability of an appeal against an order passed, under section 11 of the Arbitration and Conciliation Act, 1996 appointing an arbitrator, by the learned Judge designated by the Hon’ble Chief Justice. 3. The parties in FAT No.002 of 2015 entered into a contract containing an arbitration clause contained in paragraph 25 of the contract which reads as follows:- “Clause 25: Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, design drawings and instructions here-in before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, termination, completion or abandonment thereof shall be dealt with as mentioned hereinafter: (i). If the contractor considers any work demanded of him to be outside requirements of the contract, or disputes any drawings, record or decisions given in writing by the Engineer-in-Charge on any matter in connection with or arising out of the contract or carrying out of the work, to be unacceptable, he shall promptly within 15 days request the superintending Engineer in writing for written instruction or decision. Thereupon, the superintending engineer shall give his written instructions or decision within a period of one month from the receipt of the contractor’s letter. If the Superintending Engineer fails to give his instructions or decision in writing within the aforesaid period or if the contractor is dissatisfied with the instructions or decision of the Superintending Engineer, the contractor may, within 15 days of the receipt of Superintending Engineer’s decision, appeal to the Chief Engineer who shall afford an opportunity to the contactor to be heard. If the latter so desires, and to offer evidence in support of his appeal. If the latter so desires, and to offer evidence in support of his appeal. The Chief Engineer shall give his decision within 30 days of receipt of contractor’s appeal. If the contractor is dissatisfied with this decision, the contractor within a period of 30 days from receipt of the decision, give notice to the Chief Engineer for appointment of arbitrator failing which the said decision shall be final binding and conclusive and not referable to adjudication by the arbitrator. (emphasis supplied) (ii). Except where the decision has become final, binding and conclusive in terms of sub para (i) above, disputes or differences shall be referred for adjudication through arbitration by a sole arbitrator appointed by the Chief Engineer, CPWD in charge of the work or if there be no Chief Engineer, the Additional Director General of the concerned region of CPWD or if there be no Additional Director General, the Director General of Works, CPWD. If the arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacates his office due to any reason whatsoever, another sole arbitrator shall be appointed in the matter aforesaid. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is a term of this contract that the party invoking arbitration shall give a list of disputes with amounts claimed in respect of each such dispute alongwith the notice for appointment of arbitrator and giving reference to the rejection by the Chief Engineer of the appeal. It is also term of this contract that no person other than a person appointed by such Chief Engineer, CPWD or the administrative head of the CPWD, as aforesaid, should act as arbitrator and if for any reason that is not possible, the matter shall not be referred to arbitration at all.” (emphasis supplied). 4. Mr. Sivabalan, learned Advocate appearing for the appellants drew our attention to the impugned order wherein the learned designated Judge opined, inter alia, as follows:- “There is no dispute that the petitioner has invoked the arbitration clause. It appears that arbitration clause was invoked after receiving the payment under the final bill. The question remains whether this would amount to accord and satisfaction. It appears that arbitration clause was invoked after receiving the payment under the final bill. The question remains whether this would amount to accord and satisfaction. In my view it is not since the said amount was not received in full and final settlement of the claim of the petitioner as would appear from the endorsement in the final bill “subject to claim”. There is no material on record to show that the petitioner has accepted the said amount in full and final settlement of its claim. In fact such case is also not made out in the affidavit in opposition. The only ground for refusing to appoint an arbitrator is that request was made beyond 120 days of receiving intimation from the Government that bill is ready for payments . Such clause apart from being violative of section 28 of the Contract Act is also not to be followed in view of clause 25.18 of the Manual which is binding on the authorities. Accordingly, in view of section 11(6) of the Arbitration and Conciliation Act, 1996 and having regard to the fact that the period of 30 days has expired, the Chief Engineer forfeit his right to appoint an Arbitrator, Shri P. Radhakrishnan, Retired Chief Engineer and Administrator, ALHW, is appointed as an Arbitrator. The Arbitrator is requested to conclude the proceeding at the earliest preferably within a period of one year from the date of entering into the reference.” 5. Mr. Sivabalan contended that the learned designated Judge acted without jurisdiction in holding that there has not been an accord and satisfaction. He contended that this was an issue on merit. Whereas the learned designated Judge was exercising jurisdiction solely for the purpose of appointing an arbitrator and he had no jurisdiction to express any opinion as regards merits of the matter. He added that the prayer for arbitration after accepting final payment is altogether bad and illegal. The observation by the learned trial Court that such payment was received with an endorsement stating “subject to claim” is of no significance when the alleged claim has not been identified therein. The learned trial Court, he added, without jurisdiction made observations and/or findings on merit. 6. The second submission advanced by Mr. Sivabalan is that reference to section 28 of the Contract Act is altogether misplaced because the parties are governed by the contract containing the arbitration clause. The learned trial Court, he added, without jurisdiction made observations and/or findings on merit. 6. The second submission advanced by Mr. Sivabalan is that reference to section 28 of the Contract Act is altogether misplaced because the parties are governed by the contract containing the arbitration clause. The contract has to be construed, according to him, without any reference to any external material. He added that section 28 of the Contract Act relied upon by the learned Judge has no application. The arbitration clause quoted above does not by any stretch of imagination restrain the applicant/respondent from taking recourse to legal proceedings. An arbitration, he contended, is a private forum. The parties can have recourse to such a forum only by a contract. In arriving at a contract, the parties are at liberty to agree as to the terms and conditions of such contract. When the prayer for arbitration was not made as per the agreed terms and conditions of the arbitration clause, the respondent could have resorted to a Civil Court but he had no right to apply for appointment of an arbitrator. 7. The third submission advanced by him is that it has specifically been laid down in the arbitration clause that there shall be no arbitration if arbitrator is not appointed by the Chief Engineer, CPWD or the administrative head of the CPWD. He contended that even assuming but not admitting that there has been any failure on the part of the appointing authority in appointing an arbitrator, the consequence is that the arbitration clause became inoperative. The learned Trial Court altogether ignored this aspect of the matter. He, therefore, contended that the order appointing the arbitrator is patently bad and should be set aside. 8. Mr. Tapan Kumar Das, learned advocate appearing for the applicant/respondent submitted that prayer for appointment of an arbitrator was made. When the prayer was not acceded to within a period of 30 days, he was entitled to present an application, which he did and the learned designated Judge duly appointed an arbitrator which is not amenable to an appeal before the Division Bench. In case the appellants are aggrieved, they can apply under Article 136 of the Constitution of India and not before this Court. Re: LPA No.001 of 2015 with CAN No.093 of 2015(Stay) 9. In case the appellants are aggrieved, they can apply under Article 136 of the Constitution of India and not before this Court. Re: LPA No.001 of 2015 with CAN No.093 of 2015(Stay) 9. This appeal is directed against an order dated 17th August, 2015 passed by the learned designated Judge appointing an arbitrator in an application under section 11 of the Arbitration and Conciliation Act 1996. Aggrieved by the order the administration has come up in appeal. 10. The arbitration agreement provides as follows:- “3.22. In case of any dispute between the parties arising out of this Agreement, that shall be settled amicably by the parties. In case of failure, the same shall be referred for arbitration to a sole Arbitrator appointed by the Lieutenant Governor (Administrator), A & N Islands. The decision of the Arbitrator so appointed shall be final and binding upon the parties. The Arbitrator appointed under this clause shall pass award within a period of 6 (six) months from the date of reference made to him. Subject to aforesaid, the provisions of Arbitration and Conciliation Act, 1996 shall apply to arbitration proceeding under this clause. The arbitration proceeding shall be held at Port Blair”. 11. Mr. Mandal, learned senior advocate appearing for the appellants submitted that the respondents have no right to pray for appointment of arbitrator without first seeking to settle the dispute amicably for which no steps were taken by the respondents. Therefore, they had no right to seek arbitration. In any case, the prayer for appointment of an arbitrator was made by a letter dated 8th June, 2015 and an appointment was made by the Lieutenant Governor by his letter dated 14th August, 2015. The application for appointment of an arbitrator under section 11 was moved on 10th August, 2015, though the application appears to have been filed on 31st July, 2015 with an indication that the same shall be moved on 10th August, 2015. Mr. Mandal contended that once an arbitrator was appointed by the agreed appointing authority there was no scope in law to exercise jurisdiction under section 11 of the Act for the purpose of appointing an arbitrator. He in support of his submission relied upon a judgment in the case of Union of India -vs-Premier Files Limited reported in (2009) 9 SCC 384 . He in support of his submission relied upon a judgment in the case of Union of India -vs-Premier Files Limited reported in (2009) 9 SCC 384 . What had happened in that case was that an arbitrator had already been appointed but he resigned without concluding the reference. After his resignation an application for appointment of arbitrator was made before the High Court. During the pendency of that application before the High Court, the appointing authority appointed an arbitrator in the place of the arbitrator who had already resigned. Nonetheless, the High Court appointed an arbitrator. Challenging the order of appointment an appeal was preferred to the Supreme Court. Their Lordships set aside the appointment made by the High Court and held as follows:- “8. Considering the fact that the arbitrator has already been appointed in terms of the agreement and that such appointment was made before the final order was passed under Section 11 of the Act appointing a lawyer arbitrator to decide the disputes between the parties, we set aside the order of the High Court and restore the order of the competent authority appointing Shri S.C. Padhi as a sole arbitrator to decide the disputes between the parties.” 12. Mr. Tabraiz, learned advocate appearing for the respondents submitted that after 30 days from the date of application for appointment of an arbitrator his clients were entitled to apply under section 11 for appointment of an arbitrator. He added that the Lieutenant Governor retained jurisdiction to appoint an arbitrator even after 30 days but such jurisdiction came to an end once an application under section 11 was filed. In support his submission, he relied on a judgment in the case of Punj Lloyd Ltd. -vs- Petronet MHB Ltd. reported in (2006) 2 SCC 638 wherein following an earlier judgment in the case of Datar Switchgears Limited -vs- Tata Finance Limited it was held that the learned designated Judge as also the Division Bench were not right in taking a view that no arbitrator could be appointed once an arbitrator had already been appointed by the appointing authority albeit after 30 days from the date of application. 13. The judgment relied upon in the aforesaid case i.e. Datar Switchgears Limited (supra) reported in (2000)8 SCC 151 expressed the following views :- “10. 13. The judgment relied upon in the aforesaid case i.e. Datar Switchgears Limited (supra) reported in (2000)8 SCC 151 expressed the following views :- “10. So far as cases falling under section 11(6) are concerned such as the one before us no time limit has been prescribed under the Act, whereas a period of 30 days has been prescribed under section 11(4) and section 11(5) of the Act. In our view, therefore, so far as section 11 (6) is concerned, if one party demands the opposite party to appoint an arbitrator and the opposite party does not make an appointment within 30 days of the demand, the right to appointment does not get automatically forfeited after expiry of 30 days. If the opposite party makes an appointment even after 30 days of the demand, but before the first party has moved the Court under section 11, that would be sufficient. In other words, in cases arising under section 11(6), if the opposite party has not made an appointment within 30 days of demand, the right to make appointment is not forfeited but continues, but an appointment has to be made before the former files application under section 11 seeking appointment of an arbitrator. Only then the right of the opposite party ceases. We do not, therefore, agree with the observation in the above judgments that if the appointment is not made within 30 days of demand, the right to appoint an arbitrator under section 11(6) is forfeited. In the present case the respondent made the appointment before the appellant filed the application under section 11(6) though it was beyond 30 days from the date of demand. In our view, the appointment of the arbitrator by the respondent is valid and it cannot be said that the right was forfeited after expiry of 30 days from the date of demand. We need not decide whether for purposes of sub-clauses (4) and (5) of section 11, which expressly prescribe 30 days, the period of 30 days is mandatory of not.” 14. The second submission advanced by Mr. Tabraiz is that the appeal is not maintainable because under section 37 an order appointing an arbitrator under section 11 is not an appealable order. Section 37 of the Arbitration and Conciliation Act, 1996 provides as follows:- “37. The second submission advanced by Mr. Tabraiz is that the appeal is not maintainable because under section 37 an order appointing an arbitrator under section 11 is not an appealable order. Section 37 of the Arbitration and Conciliation Act, 1996 provides as follows:- “37. Appeallable orders:-(1) An appeal shall lie from the following orders (and from no others) to the Court authorized 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). An 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 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.” 15. Mr. Tabraiz in support of his submission relied upon a judgement in the case of SBP & company Vs. Patel Engineering Limited reported in (2005) 8 SCC 619 wherein the following views were expressed in clause (vii) of para 47. However for the sake of convenience the entire paragraph 47 is set out hereinbelow:- “47. We, therefore, sum up our conclusions as follows: (i) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Act is not an administrative power. It is a judicial power. (ii) The power under Section 11(6) of the Act, in its entirety, could be delegated, by the Chief Justice of the High Court only to another Judge of that Court and by the Chief Justice of India to another Judge of the Supreme Court. (iii) In case of designation of a Judge of the High Court or of the Supreme Court, the power that is exercised by the designated Judge would be that of the Chief Justice as conferred by the statute. (iv) The Chief Justice or the designated Judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. (iv) The Chief Justice or the designated Judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be his own jurisdiction to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. The Chief Justice or the designated Judge would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of Section 11(8) of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the designated Judge. (v) Designation of a District Judge as the authority under Section 11(6) of the Act by the Chief Justice of the High Court is not warranted on the scheme of the Act. (vi) Once the matter reaches the Arbitral Tribunal or the sole arbitrator, the High Court would not interfere with the orders passed by the arbitrator or the Arbitral Tribunal during the course of the arbitration proceedings and the parties could approach the Court only in terms of Section 37 of the Act or in terms of Section 34 of the Act. (vii) Since an order passed by the Chief Justice of the High Court or by the designated Judge of that Court is a judicial order, an appeal will lie against that order only under Article 136 of the Constitution to the Supreme Court. (viii) There can be no appeal against an order of the Chief Justice of India or a Judge of the Supreme Court designated by him while entertaining an application under Section 11(6) of the Act. (ix) In a case where an Arbitral Tribunal has been constituted by the parties without having recourse to Section 11(6) of the Act, the Arbitral Tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the Act. (x) Since all were guided by the decision of this Court in Konkan Rly. Corpn. (ix) In a case where an Arbitral Tribunal has been constituted by the parties without having recourse to Section 11(6) of the Act, the Arbitral Tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the Act. (x) Since all were guided by the decision of this Court in Konkan Rly. Corpn. Ltd. v. Rani Construction (P) Ltd. and orders under Section 11(6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of arbitrators or Arbitral Tribunals thus far made, are to be treated as valid, all objections being left to be decided under Section 16 of the Act. As and from this date, the position as adopted in this judgment will govern even pending applications under Section 11(6) of the Act. (xi) Where District Judges had been designated by the Chief Justice of the High Court under Section 11(6) of the Act, the appointment orders thus far made by them will be treated as valid; but applications if any pending before them as on this date will stand transferred, to be dealt with by the Chief Justice of the High Court concerned or a Judge of that Court designated by the Chief Justice. (xii)* The decision in Konkan Rly. Corpn. Ltd. v. Rani Construction (P) Ltd. is overruled.”. 16. Mr. Mandal, learned senior advocate submitted that the Arbitration and Conciliation Act, 1996 may not have provided for an appeal against an order appointing arbitrator but it is now firmly established by the judement cited by Mr. Tabraiz himself that order appointing an arbitrator is a ‘judicial act’ and the impugned order in this case amounts to a ‘judgement’. Once it is a judgement passed by a learned Single Judge of the High Court an appeal will lie under Clause 15 of the Letters Patent to a Division Bench. He drew our attention to Clause 15 of the Letters Patent which reads as follows:- “15. Once it is a judgement passed by a learned Single Judge of the High Court an appeal will lie under Clause 15 of the Letters Patent to a Division Bench. He drew our attention to Clause 15 of the Letters Patent which reads as follows:- “15. Appeal from the courts of original jurisdiction to the High Court in its appellate jurisdiction.—And we do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal 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 a 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 (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.” 17. Mr. Mandal contended that earlier the view was that an order appointing an arbitrator is an ‘administrative act’ but now the view is that it is a ‘judicial act’. Mr. Mandal contended that earlier the view was that an order appointing an arbitrator is an ‘administrative act’ but now the view is that it is a ‘judicial act’. Therefore, even if no appeal has been permitted under section 37 of the Act of 1996, he is entitled to maintain an appeal as a matter of right under Clause 15 of the Letters Patent. Therefore, the appeal is maintainable. He submitted that on merits he has a very good case and he is also supported by a judgment of the Apex Court in the case of Union of India Vs. Premier Files Limited (supra) to indicate that the order under challenge should not have been passed. He concluded by contending that for technical reason the meritorious appeal should not be thrown out. 18. We have considered the rival submissions advanced by the learned Advocates appearing before us. There is substance in the submissions, advanced by Mr. Mandal that an appeal would lie under Clause 15 of the Letters Patent. Section 6 of the Specific Relief Act provides specifically that an order passed therein is not an appeallable order. In the case of Vinita M. Khanolkar Vs. Pragna M. Pai and others, reported in (1998) 1 SCC 500 , the Apex Court held that prohibition contained in section 6 of the Specific Relief Act shall not bar an appeal under Letters Patent. To be precise, the views expressed were as follows:- “3. Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a 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. 4. Only on that short ground the appeal is required to be allowed. 4. The judgment and order of the High Court in Appeal No. 960 of 1994 are set aside and the appeal is restored to the file of the High Court for being proceeded further in accordance with law. As the appeal of 1994 is being restored to the file of the High Court, the High Court is requested to decide the appeal as expeditiously as possible.” 19. The point however came up for consideration by the Apex Court in connection with the Arbitration Act, 1940. Section 39 of the 1940 Act provided as follows:- “39. 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— (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.” 20. Their Lordships in the case of State of West Bengal Vs. M/s Gourangalal Chatterjee reported in (1993) 3 SCC 1 held that the Act of 1940 is a special law which provides for exclusion of an appeal under clause 15 of the Letters Patent. To be precise the following views were expressed:- “3. Section 39 of the Arbitration Act came up for consideration in Union of India V. Mohindra Supply Co. 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). Section 39 of the Arbitration Act came up for consideration in Union of India V. Mohindra Supply Co. 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 Ac 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 39 debarring any second appeal from an order passed in appeal under sub-section (1) 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, so far the second part is concerned, namely, the maintainability of the appeal under Letters Patent it stands concluded by this decision.” 21. In the case of Union of India v. Aradhana Trading Co., reported in (2002) 4 SCC 447 the question arose whether an appeal will lie against an order refusing to recall an order under section 17 of the Arbitration Act, 1940 by which award was made a rule of Court in the absence of an application for setting aside the award. The Division Bench dismissed the appeal. In an appeal the Supreme Court did not interfere holding as follows:- “13. The question which thus remains to be considered is as to whether an order passed on an application making the prayer like one which could be referable to Order 9 Rule 13 CPC would be appealable or not. Such an application could be made by virtue of Section 41 of the Arbitration Act. An order under Order 9 Rule 13 CPC is appealable under Order 43 Rule 1 clause (d) read with Section 104 CPC. In the case of National Sewing Thread Co. Ltd. a decision by a Bench of three Hon’ble Judges, the matter related to the Trade Marks Act, Section 76(1) of which provided for an appeal against a decision of the Registrar under the Act to the High Court but no further provision in regard to the procedure to be applied was made. Ltd. a decision by a Bench of three Hon’ble Judges, the matter related to the Trade Marks Act, Section 76(1) of which provided for an appeal against a decision of the Registrar under the Act to the High Court but no further provision in regard to the procedure to be applied was made. An appeal against the order of the Registrar was decided by a learned Single Judge of the High Court against which a letters patent appeal was filed which was held to be maintainable even though no such provision of further appeal was made under the Trade Marks Act. As indicated earlier the Court in the above-noted case has relied upon certain decision and held as follows: (AIR p. 360, para 7) “Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76, Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single Judge, his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act.” In view of what has been held above a court while exercising power by virtue of Section 41 of the Arbitration Act shall have all other related powers of the ordinary civil court subject to the constraints contained in the special Act itself. Normally, an appeal would be maintainable but there are two constraints as provided under the Special Act, namely, it should not be a second appeal as provided under sub-section (2) of Section 39 of the Act, which position is also clear in the case of Mohindra Supply Co. where it was held that the second appeal under Section 100 CPC or under the Letters Patent against an appellate order was barred by virtue of subsection (2) of Section 39. where it was held that the second appeal under Section 100 CPC or under the Letters Patent against an appellate order was barred by virtue of subsection (2) of Section 39. Here we find that there is yet another constraint as provided under sub-section (1) of Section 39 of the Arbitration Act itself and it is emphatic too when it says that the appeal shall lie against the orders indicated in the provision and from no other order. Section 41 of the Arbitration Act makes the provisions of CPC applicable subject to the provisions of the Arbitration Act and the rules framed thereunder. Therefore, the nature of an order against which an appeal may lie must conform to the nature of the order as enumerated under sub-section (1) of Section 39 of the Arbitration Act. If it does not amount to such an order as enumerated under sub-section (1) of Section 39, the prohibition as contained in this sub-section (“against no other order”) itself, would become operative, subject to which alone provisions of CPC apply under Section 41 of the Act. In the facts of the present case we find that an order refusing to recall an order passed by the Court will not amount to refusal to set aside the award under clause (vi) of sub-section (1) of Section 39 of the Arbitration Act as no objections to set aside the award have ever been filed with or without application for condonation of delay, challenging the award. Admittedly, the appellant did not file any appeal against the order dated 27-1-1998. In these circumstances and in view of the provisions of the Arbitration Act, the decision in the case of National Sewing Thread Co. Ltd. shall also not be applicable as in the Trade Marks Act with which the Court was dealing, did not have any provision like the one contained in sub-section (1) of Section 39 of the Arbitration Act restricting the right of appeal only in respect of certain nature of orders and prohibiting appeal against any other order whatsoever. Therefore, in the case of National Sewing Thread Co. Ltd. it was held that where a provision for appeal was made under Section 76(1) of the Trade Marks Act to the High Court, with nothing more, the other provisions relating to exercise of that jurisdiction by the High Court would be applicable. Therefore, in the case of National Sewing Thread Co. Ltd. it was held that where a provision for appeal was made under Section 76(1) of the Trade Marks Act to the High Court, with nothing more, the other provisions relating to exercise of that jurisdiction by the High Court would be applicable. The case of National Sewing Thread Co. Ltd. is thus based on different provisions and is clearly distinguishable. The case in hand is covered by the decisions in the cases of Nilkantha1 and Mohindra Supply Co. both decided by Bench of four Judges which do not seem to have been noticed in the other judgments.” 22. Relying upon the aforesaid judgements, the Apex court in the case of Fuerst Day Lawson Limited and others Vs. Jindal Exports Limited and others, reported in (2011) 8 SCC 639, took the following views:- “89. It is, thus, to be seen that Arbitration Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan) was held to be a self-contained code. Now, if the Arbitration Act, 1940 was held to be a self-contained code, on matters pertaining to arbitration, the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lucid expression of Tulzapurkar, J., that it carries with it “a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done”. In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded.” (emphasis supplied). 23. The submissions advanced by Mr. Mandal that a letters patent appeal shall lie cannot for the aforesaid reasons be accepted by us. 24. Mr. Mandal lastly submitted that the judgement relied upon by Mr. Tabraiz has no manner of application. He drew our attention to section 11 of the Act of 1996 which is quoted hereinbelow: “11. 23. The submissions advanced by Mr. Mandal that a letters patent appeal shall lie cannot for the aforesaid reasons be accepted by us. 24. Mr. Mandal lastly submitted that the judgement relied upon by Mr. Tabraiz has no manner of application. He drew our attention to section 11 of the Act of 1996 which is quoted hereinbelow: “11. Appointment of arbitrators.-(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties. (2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. (3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. (4) If the appointment procedure in sub-section (3) applies and- (a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or (b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. (5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. (6) Where, under an appointment procedure agreed upon by the parties,- (a) a party fails to act as required under that procedure; or (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or (c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. (7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice or the person or institution designated by him is final. (8) The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to- (a) Any qualifications required of the arbitrator by the agreement of the parties; and (b) Other considerations as are likely to secure the appointment of an independent and impartial arbitrator. (9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities. (10) The Chief Justice may make such scheme as he may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6) to him. (11) Where more than one request has been made under sub-section (4) or subsection (5) or sub-section (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant sub-section shall also be competent to decide on the request. (12) (a) where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to the “Chief Justice of India”. (b). Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court.” 25. He submitted that sub-sections (3) and (4) of section 11 of the Act do not apply to a case covered by sub-section (2). Sub-section (5) shall not apply to a case where parties have agreed to a procedure for appointment of an arbitrator. He submitted that sub-sections (3) and (4) of section 11 of the Act do not apply to a case covered by sub-section (2). Sub-section (5) shall not apply to a case where parties have agreed to a procedure for appointment of an arbitrator. The concept of limitation for appointment within a period of 30 days is to be found only in sub-section (5) of section 11 which does not apply because the parties have already agreed upon a procedure for appointment of an arbitrator. Therefore, the period of 30 days was never binding upon the Lieutenant Governor for the purpose of appointing an arbitrator. Sub-section 6 of section 11 does not provide the period of limitation of 30 days. Therefore, from whatever angle the matter is considered one has to reach a conclusion that the Lieutenant Governor was not bound to appoint an arbitrator within 30 days. He did not however dispute that in the absence of any restriction as regards time within which an appointment is to be made the Lieutenant Governor is still bound to act within a reasonable time. According to him the Lieutenant Governor did, in fact, appoint an arbitrator with reasonable expedition. The application for the appointment was made on 8th June, 2015 and the appointment was made on 14th August, 2015. Therefore, it cannot be said that the Lieutenant Governor did not act within a reasonable period. 26. Mr. Tabraiz wants to steal a march on the basis of a judgment in the case of Punj Lloyd Ltd. (supra). But the Apex Court, he contended, in a subsequent judgment in the case of Union of India -Vs- Premier Files Limited (supra) took a different view of the matter. He therefore, submitted that he has a very good case and the appeal should be allowed. 27. We have considered the rival submissions of the learned advocates appearing before us. We cannot but accept the fact that the submissions advanced by both Mr. Sivabalan and Mr. Mandal, learned advocates for the appellants in the aforesaid appeals are not without substance. But we are bound by the views expressed by the Apex Court in SBP & Co. (supra) and we cannot entertain the appeals contrary to the authoritative decision rendered by the Apex Court. We should not also be deemed to have expressed any opinion in the matter. But we are bound by the views expressed by the Apex Court in SBP & Co. (supra) and we cannot entertain the appeals contrary to the authoritative decision rendered by the Apex Court. We should not also be deemed to have expressed any opinion in the matter. The parties are free to approach the Supreme Court seeking appropriate relief under Article 136 of the Constitution of India. 28. Both the appeals and the connected applications are therefore dismissed. 29. Considering that there is an arguable case in both the appeals, we restrain the parties before us from proceeding with the arbitration for a period of 30 days in order to enable the appellants to approach the Supreme Court. Urgent photostat certified copy of this order, if applied for, be given to the parties forthwith on compliance of usual formalities. Mir Dara Sheko, J. : I agree.