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Allahabad High Court · body

2016 DIGILAW 2700 (ALL)

PAL JAIN v. VIJAY PAL JAIN

2016-08-04

KRISHNA MURARI, PRASHANT KUMAR

body2016
JUDGMENT By the Court.—This appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (for short the ‘Act’) filed by the appellant is directed against the order dated 18.7.2016 passed by the Chairman Arbitrar Tribunal/District Judge, Meerut in Arbitration Case No. 16 of 2016 (Vijay Pal Jain v. Shri Pal Jain admitting the application made by the respondent herein under Section 9 of the Act, registering the same as arbitration case, inviting objection and fixing 2 August, 2016 for hearing. 2. We have heard Sri Anurag Khanna, learned Senior Advocate assisted by Ms. Gunjan Jadwani for appellant and Sri Vivek Chaudhary assisted by Sri Adarsh Bhushan for the respondent. 3. A preliminary issued has been raised by the learned counsel for the respondent with respect to maintainability of this appeal filed against an order, inviting objection and fixing a date for disposal of the application under Section 9 of the Act.It is contended that appeal is a creature of Statute and unless there is provision prescribed by law for filing an appeal it would not be maintainable. Referring to Section 37 of the Act, it is contended that a limited right of appeal has been given only against the order specified therein and since the order impugned herein is not specified, the present appeal is not maintainable. 4. In order to appreciate the contention of the learned counsel for the respondent raising the preliminary objection with regard to maintainability of the appeal, it would be relevant to quote Section 37 of the Act, which provides for appealable order reads as under : “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 of 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 (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” 5. (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” 5. From perusal of the aforesaid provisions we find that an appeal under Section 37 of the Act lies against the order granting or refusing to grant any measure under Section 9. Inviting objection from the opposite party and fixing the matter on a specific date for disposal of the application made under Section 9 of the Act would not amount to refusing to grant any measure under Section 9 of the Act so as to make the said order appealable. 6. Reference may also be to the words “and from no others” used by the legislature in Section 37 of the Act, it gives a clear indication that only the orders specified in sub-section 1(a) & (b) and 2 would be appealable and no other orders would be appealable. 7. It is well-settled that right of appeal is a creature of statute and has to be strictly construed. Nobody has a vested right to file an appeal against any order or every order. 8. In view of above, we are of the considered opinion that the present appeal is not maintainable under Section 37 of the Act and the preliminary objection raised by learned counsel for the respondent is upheld. 9. The appeal accordingly stands dismissed as not maintainable. 10. However, it is left open to the appellant to avail such other remedy as may be available to him under law, if so advised.