State of Andhra Pradesh v. Gammon Engineers and Contractors Private Limited
2021-04-12
B.VIJAYSEN REDDY, HIMA KOHLI
body2021
DigiLaw.ai
ORDER : Hima Kohli, J. 1. This order shall decide the objection raised by the Registry as to the maintainability of the present petition filed under Section 115 of the Code of Civil Procedure (for short, 'CPC') invoking the revisional/supervisory powers of the High Court to assail the order dated 16.12.2020, passed by the learned Judge, Commercial Court-cum-XXIV Additional Chief Judge. City Civil Court, Hyderabad, in C.O.P. No. 111 of 2019 filed by the respondent/contractor under Section 29-A (5) of the Arbitration and Conciliation Act, 1996 (for short 'A & C Act') praying inter alia for extension of the mandate of the Arbitral Tribunal constituted to resolve the disputes between the parties. By the impugned order, the learned Judge has allowed the application moved by the respondent/contractor and extended the mandate of the Arbitral Tribunal which was to expire on 12.08.2019, till 15.06.2021 i.e., for a period of six months, to enable it to complete the proceedings. 2. On receiving the file of the present revision petition, the Registry had returned the same raising the following objections:- "It is to be clarified as to how this CRP SR is entertain able against the order dated 16-12-2020 passed in C.O.P. No. 111 of 2019 on the file of the Judge, Commercial Court-cum-XXIV Additional Chief Judge, City Civil Court, Hyderabad." 3. The said objection was replied to by learned counsel for the petitioner in the following words:- "Since the order under Section 29-A (5) is not appealable under Section 37 of Arbitration & Conciliation Act, CRP alone is maintainable. Hence complied." 4. With the aforesaid reply, the present petition has been placed before us for appropriate orders. In view of the aforesaid objection raised by the Registry, we had requested Mr. P. Govind Reddy, learned counsel for the petitioner, to address this court on the maintainability of the present petition under Section 115 of the CPC. 5. Learned counsel has urged] that since no appeal against an order passed under Section 29A(5) of the A & C Act is provided for under Section 37 of the A & C Act, a revision petition has been preferred being an equally alternative efficacious remedy. He has cited the judgment of the Supreme Court in Kandla Export Corporation and another v. OCI Corporation and another, reported as (2018) 14 SCC 715 in support of his submission. 6.
He has cited the judgment of the Supreme Court in Kandla Export Corporation and another v. OCI Corporation and another, reported as (2018) 14 SCC 715 in support of his submission. 6. Before considering the submissions made by learned counsel for the petitioner, it is necessary to refer to certain relevant provisions of the A & C Act. 7. Section 5 of the A & C Act reads as follows:- "5. Extent of Judicial Intervention:- Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part." 8. Section 29A deals with the time limit for making an arbitral award. Sub-sections (4), (5) and (9) of the said Section that are relevant for the instant case, are extracted below:- "29A. Time limit for arbitral award:- (4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the arbitrators shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period; Provided that while extending the period under this sub-section, if the Court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrators by not exceeding five per cent for each month of such delay. (5) The extension of period referred to in sub-section (4) may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the Court. (9) An application filed under sub-section (5) shall be disposed of by the Court as expeditiously as possible and endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party." 9. Section 37 refers to appealable orders and states as follows:- "37.
(9) An application filed under sub-section (5) shall be disposed of by the Court as expeditiously as possible and endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party." 9. Section 37 refers to appealable orders and states as follows:- "37. Appealable Orders:- (1) Notwithstanding anything contained in any other law for the time being in force, 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) refusing to refer the parties to arbitration under Section 8; (b) granting or refusing to grant any measure under Section 9; (c) 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 of the arbitral tribunal.- (a) accepting the plea referred tin 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, hut nothing in this section shall affect or take away any right to appeal to the Supreme Court." 10. Coming first to the non-obstante clause contained in Section 5 of the A & C Act, the said provision states in clear terms that notwithstanding anything contained in any other law, when it comes to matters that arise under Part I of the A & C Act, no judicial authority shall intervene except where so provided in this Part. Section 29A of the A & C Act, that was inserted vide Amendment Act No. 3 of 2016, prescribes a timeline within which an arbitral award must be rendered, i.e., within a period of twelve months reckoned from the date of completion of pleadings. Sub-section (9) of Section 29A goes on to clarify that an application moved before the Court under sub-section (5) must be disposed of within a period of sixty days from the date of service of notice on the opposite party. 11.
Sub-section (9) of Section 29A goes on to clarify that an application moved before the Court under sub-section (5) must be disposed of within a period of sixty days from the date of service of notice on the opposite party. 11. A similar emphasis on time bound disposal of an application moved under Section 34 for setting aside arbitral award, has been laid in sub-section (6) of Section 34 of the A & C Act which prescribes a period of one year from the date on which the notice referred to in sub-section (5) of the said provision is served on the other party. The underlying object that comes forth clearly is that fixed timelines have been mandated even for deciding an application moved under Section 34 of the A & C Act for setting aside an arbitral award once it is made. 12. Though Section 37 of the A & C Act provides for a first appeal against specific judgments/orders without setting down a timeline for disposal of such an appeal, in Union of India vs. Varindera Constructions Limited, reported as (2020) 2 SCC 111 , the Supreme Court has on its own imposed a similar timeline for deciding first appeals to ensure speedy resolution of matters that are covered by arbitral awards. 13. In Deep Industries Limited v. ONGC Limited, the Supreme Court has discussed the circumstances in which the High Courts ought to exercise jurisdiction under Article 227 of the Constitution of India and emphatically reiterated that the A & C Act is a special self-contained code that requires minimal judicial intervention to ensure speedy resolution of dispute. Citing the view expressed in the case of Fuerst Day Lawson Limited v. Jindal Exports Limited, reported as (2011) 8 SCC 333 : 2012 (2) ALT 17.2 (DN SC), that the A & C Act being a self contained and exhaustive code, a letters patent would be excluded on invoking the general principle that where the Special Act is a self-contained code, it impliedly excludes the applicability of the general law procedure, the Supreme Court held thus:- "14.
Given the aforesaid statutory provision and given the fact that the 1996 Act repealed three previous enactments in order that there be speedy disposal of all matters covered by it, it is clear that the statutory policy of the Act is that not only are time limits set down for disposal of the arbitral proceedings themselves but time limits have also been set down for Section 34 references to be decided. Equally, in Union of India v. Varindera Constructions Limited (supra), this Court has imposed the self-same limitation on first appeals under Section 37 so that there be a timely resolution of all matters which are covered by arbitration awards. 15. Most significant of all is the non-obstante clause contained in Section 5 which states that notwithstanding anything contained in any other law, in matters that arise under Part 1 of the Arbitration Act, no judicial authority shall intervene except where so provided in this Part. Section 37 grants a constricted right of first appeal against certain judgments and orders and no others. Further, the statutory mandate also provides for one bite at the cherry, and interdicts a second appeal being filed (See Section 37(2) of the Act)." (emphasis added) 14. Coming to the case at hand, it is not in dispute that the impugned order dated 16.12.2020, passed on an application moved under Section 29A(5) of the A & C Act is not an appealable order under Section 37 of the A & C Act. It is well settled law that an appeal is a creation of the statute, and cannot be claimed as a matter of right. In the case of South Delhi Municipal Corporation v. Tech Mahindra, in EFA (OS) (COMM) No. 3 of 2019, decided on 12.02.2019, on examining the scheme of Section 13 of the C.R.P(SR). No. 3663 of 2021 Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (for short 'the Commercial Courts Act') that provides for appeals from decrees of Commercial Courts and Commercial Divisions, a Division Bench of the Delhi High Court relying on the judgment of the Supreme Court in Kandla Corporation Limited (2018) 14 SCC 715 (supra), held as follows:- "6. A conjoint reading of the provisions especially Section 8, 11 and 21 of the CC Act, highlight the Parliamentary intention to vest Commercial Courts and Commercial Appellate Divisions with only limited jurisdiction.
A conjoint reading of the provisions especially Section 8, 11 and 21 of the CC Act, highlight the Parliamentary intention to vest Commercial Courts and Commercial Appellate Divisions with only limited jurisdiction. Flowing from that, the scheme of Section 13 of the Commercial Courts Act, provides only two types of appeals; (1) in respect of specific matters enumerated in Order XLIII Rule 1 (read with Section 104) of the CPC and (2) appeals that are admissible under Section 37 of the Arbitration Act. 7. The judgment in Kandla Export Corporation (supra) noticed the Statement of Objects and Reasons, of the Commercial Courts Act. The Supreme Court had to deal with an Enforcement Appeal before a commercial appellate court, in regard to a foreign award, and its maintainability. The Supreme Court noticed not only the Statement of Objects and Reasons but also various other provisions, especially the embargo placed upon the courts, embodied in Section 8 and 11 and the overriding nature of the CC Act, to conclude that once appeals were held to be barred, an appeal to the Division Bench appeal - against a Commercial Court's order in an enforcement of a foreign award issue was not maintainable. The Court took into account its previous rulings in Fuerst Day Lawson Limited v. Jindal Exports Limited, (2011) 8 SCC 333 and some other judgments. 11. The reference to Order XLIII Rule 1-relied upon on behalf of SDMC in the context of this case, in the opinion of this court, is misplaced. Order XLIII Rule 1(q), upon which considerable emphasis was placed to say that the appeals against directions to secure amounts during pendency of proceedings applies to suits and suits alone (as is evident from Order XXXVIII and all the attendant provisions), and not to proceedings in respect of an award. Thus, reference to Order XLIII to "draw in" the jurisdiction of the Division Bench, is wholly unjustified. Likewise, the Court also rejects the appellant's arguments that Section 36 of the Arbitration Act attracts the provisions of the Code of Civil Procedure. In fact, Section 36 refers to and directs courts to follow CPC in proceedings relating to enforcement of arbitral awards. The logical corollary is that the provisions of the CPC that deal with the proceeding for enforcement of decrees and orders (such as in execution like Order XXI CPC), would be attracted. 12.
In fact, Section 36 refers to and directs courts to follow CPC in proceedings relating to enforcement of arbitral awards. The logical corollary is that the provisions of the CPC that deal with the proceeding for enforcement of decrees and orders (such as in execution like Order XXI CPC), would be attracted. 12. In view of the above discussions, we conclude that the present appeal is not maintainable. The appellant's remedy clearly lies elsewhere. An attempt was made to urge that no litigant can be deprived of remedy if there is a grievance: ubi jusibi remedium; however, that argument is wholly without substance because an appeal, it has been repeatedly emphasised, is a specific creation of statute and cannot be claimed as a matter of right. This was explained pithily in Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393 , in the following terms: "There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute." (emphasis supplied) 15. In the case of Kakade Construction Company Limited v. Vistra ITCL (India) Limited, testing an order passed by the Single Judge in exercise of the powers vested under Section 36 of the A & C Act, a Division Bench of the Bombay High Court cited the judgment of the Supreme Court in Kandla Corporation Limited, (2018) 14 SCC 715 (supra) and observed as under:- "24. Now to consider whether the impugned order being under the Act 1996, is appealable under that Act. An important decision on this issue is of the Supreme Court in the case of Kandla Export Corporation. 25.
Now to consider whether the impugned order being under the Act 1996, is appealable under that Act. An important decision on this issue is of the Supreme Court in the case of Kandla Export Corporation. 25. The Supreme Court thus has clarified that in respect of the orders under the Act of 1996, only those appeals mentioned in Section 37 of the Act of 1996 are maintainable before Commercial Appellate Division. The Supreme Court held that the Act of 1996 is a self-contained code on the matters pertaining to arbitration, and which is exhaustive. The Supreme Court then adverted to the foundational logic of making the Arbitration Act a self-contained code. It was held that the Act of 2015 provided no additional right of appeal otherwise than the appeal otherwise than the appeals under the Act of 1996. Though this case arose before the Supreme Court in a foreign award and under Section 50, the underlying principle equally applies to the Section 37 of the Act of 1996. The dicta in Kandla Export is clear that in respect of the orders arising from the Act of 1996; an appeal will lie only to the extent provided under Section 37 of the Act of 1996. xxx 27. The learned Single Judge by the impugned order has allowed the chamber summons filed by the Respondents-Claimants and has appointed receiver regarding the properties specified in the order. This order has been passed while exercising power under Section 36 of the Act of 1996 being an executory mechanism. This order not being under the Code of Civil Procedure, the only other category enumerated in Section 13 of the Commercial Courts Act, 2015 is Section 37 of the Arbitration Act, 1996. Section 37 of the Act of 1996 provides appeal only in limited cases. These are order: refusing to refer the parties to arbitration under Section 8; granting or refusing to grant any measure under Section 9; setting aside or refusing to set aside an arbitral award under Section 34. An appeal shall also lie to a Court from an order of the arbitral tribunal accepting the plea referred in sub-section (2) or sub-section (3) of Section 16; or granting or refusing to grant an interim measure under Section 17. These are the only orders that have been made appealable." 32.
An appeal shall also lie to a Court from an order of the arbitral tribunal accepting the plea referred in sub-section (2) or sub-section (3) of Section 16; or granting or refusing to grant an interim measure under Section 17. These are the only orders that have been made appealable." 32. The Act of 2015 and the Act of 1996 reflect the legislative intent of time-bound resolution of commercial disputes. It cannot be the legislative intent to provide a speedy remedy or arbitration only till the award is passed, with no priority when the award is to be put to execution. The purpose of the arbitral process is not only to expedite the declaration of an award on paper but the actual receipt of the claim. 33. Thus we hold that the impugned order dated 24 August 2018 passed by the learned Single Judge of this Court being neither under Order XLIII of the Code of Civil Procedure nor appealable under Section 37 of the Act of 1996, these appeals are not maintainable." (emphasis supplied) 16. In the instant case, learned counsel for the petitioner has also sought to substantiate his submission with regard to the maintainability of the revision petition by relying on the decision in Kandla Corporation Limited, (2018) 14 SCC 715 (supra), wherein the question required to be answered by the Supreme Court was whether an appeal that was not maintainable under Section 50 of the A & C Act, could be held to be maintainable under Section 13(1) of the Commercial Courts Act exclusively. Adverting to the fact that both, the Commercial Courts Act and the Arbitration (Amendment) Act, 2015 were brought into force on the same date, i.e., on 23.10.2015 and on examining the Statement of Objects and Reasons for legislating the Commercial Courts Act and the attendant provisions thereof, vis-a-vis the A & C Act, the Supreme Court made the following pithy observations:- "14. The proviso goes on to state that an appeal shall lie from such orders passed by the Commercial Division of the High Court that are specifically enumerated under Order 43 of the Code of Civil Procedure Code, 1908, and Section 37 of the Arbitration Act.
The proviso goes on to state that an appeal shall lie from such orders passed by the Commercial Division of the High Court that are specifically enumerated under Order 43 of the Code of Civil Procedure Code, 1908, and Section 37 of the Arbitration Act. It will at once be noticed that orders that are not specifically enumerated under Order 43 CPC would, therefore, not be appealable, and appeals that are mentioned in Section 37 of the Arbitration Act alone are appeals that can be made to the Commercial Appellate Division of a High Court. 15. Thus, an order which refers parties to arbitration under Section 8, not being appealable under Section 37(1)(a), would not be appealable under Section 13(1) of the Commercial Courts Act. Similarly, an appeal rejecting a plea referred to in sub-sections (2) and (3) of Section 16 of the Arbitration Act would equally not be appealable under Section 37(2)(a) and, therefore, under Section 13(1) of the Commercial Courts Act." (emphasis added) 17. In the case at hand, an order has been passed by the Court below extending the timeline for completing the arbitration proceedings under Section 29A(5) of the A & C Act. The said order is not appealable under Section 37(1) of the Act and is therefore not appealable under Section 13(1) of the Commercial Courts Act. Nor can a revision petition lie against the same for the reason that even under Section 115 of the CPC as amended on 01.07.2002, a revision would lie only where no appeal lies and read in conjunction with the proviso inserted with effect from 2002, no revision petition is maintainable against any interlocutory order. For ready reference, Section 115 of the CPC is extracted below:- "115. Revision.- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, The High Court may make such order in the case as it thinks fit.
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. Explanation.- In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding." 18. As is apparent from the above, post the amendment to Section 115 of the CPC, a revision petition lies only against final disposal of a suit or other proceedings but not against any interlocutory orders, which is the case here. 19. The above aspect has been amply highlighted by the Supreme Court in Deep Industries (supra), where relying on a previous ruling in Tek Singh v. Shashi Verma, reported as 2019 (1) ALT 77 (SC) and noticing the amendments made to Section 115 of the CPC, it has been observed as follows:- 25. Mr. Rohatgi is also correct in pointing out that the legislative policy qua the general revisional jurisdiction that is contained by the amendments made to Section 115 C.P.C. should also be kept in mind when High Courts dispose of petitions filed under article 227. The legislative policy is that no revision lies if an alternative remedy of appeal is available. Further, even when a revision does lie, it lies only against a final disposal of the entire matter and not against interlocutory orders. These amendments were considered in Tek Singh v. Shashi Verma, 2019 (1) ALT 77 (SC), in which this Court adverted to these amendments and then stated: 7. A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders. 8. Even otherwise, it is well settled that the revisional jurisdiction under Section.
A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders. 8. Even otherwise, it is well settled that the revisional jurisdiction under Section. 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In D.L.F. Housing & Construction Company Private Ltd., New Delhi v. Samp Singh, (1970) 2 SCR 368 this Court held: "The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code.
The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal." (emphasis added) 20. Though learned counsel for the petitioner has not alluded to the decision in ITI Limited v. Siemens Public Communications Network Limited, reported as (2002) 5 SCC 510 : 2002 (5) ALT 10.1 (DN SC), where the question decided by the Supreme Court was whether a revision petition would lie under Section 115 of the CPC to the High Court against an order made by the civil court in an appeal preferred under Section 37 of the A & C Act, for the sake of completeness, it is considered apposite to refer to the said decision. In the aforesaid case, a petition under Section 37(2)(b) of the A & C Act had been preferred before the Civil Court Judge against an interim order made by the Arbitral Tribunal and the order passed by the Civil Judge was challenged before the High Court by moving a revision petition. In the said case, it was argued before the Supreme Court that since the right of second appeal is specifically barred under Section 37(2) of the A & C Act, by implication it should be held that even a revision petition would not be maintainable under Section 115 of the CPC as CPC was not made applicable to matters relating to arbitration. Speaking for the two-Judge Bench, Justice Santosh Hegde had observed as follows:- "13. We also do not find much force in the argument of learned counsel for the appellant based on Section 5 of the Act. It is to be noted that it is under this Part, namely, Part I of the Act that Section 37(1) of the Act is found, which provides for an appeal to a civil court.
We also do not find much force in the argument of learned counsel for the appellant based on Section 5 of the Act. It is to be noted that it is under this Part, namely, Part I of the Act that Section 37(1) of the Act is found, which provides for an appeal to a civil court. The term "court" referred to in the said provision is defined under Section 2(1)(e) of the Act. From the said definition, it is clear that the appeal is not to any designated person but to a civil court. In such a situation, the proceedings before such court will have to be controlled by the provisions of the Code, therefore, the remedy by way of a revision under Section 115 of the Code will not amount to a judicial intervention not provided for by Part I of the Act. To put it in other words, when the Act under Section 37 provided for an appeal to the civil court and the application of the Code not having been expressly barred, the revisional jurisdiction of the High Court gets attracted. If that be so, the bar under Section 5 will not be attracted because conferment of appellate power on the civil court in Part I of the Act attracts the provisions of the Code also. 16. For the aforesaid reasons, while holding that this Court in an appropriate case would entertain an appeal directly against the judgment in first appeal, we hold that the High Court also has the jurisdiction to entertain a revision petition, therefore, in the facts and circumstances of this case, we direct the appellant to first approach the High Court. For the said reasons, this appeal fails and the same is hereby dismissed. We, however, make it clear that should the appellant present a revision petition within 30 days from today, the same will be entertained by the High Court without going into the question of limitation, if any." (emphasis added) 21. It is pertinent to note that the captioned decision in ITI Limited (2002) 5 SCC 510 : 2002 (5) ALT 10.1 (DN SC) (supra) was rendered on 20.05.2002, which was just a couple of months before Section 115 of the CPC came to be amended and a proviso was appended to the provision.
It is pertinent to note that the captioned decision in ITI Limited (2002) 5 SCC 510 : 2002 (5) ALT 10.1 (DN SC) (supra) was rendered on 20.05.2002, which was just a couple of months before Section 115 of the CPC came to be amended and a proviso was appended to the provision. We may also refer to a subsequent decision in Mahanagar Telephone Nigam Limited v. Applied Electronics Limited, reported as (2017) 2 SCC 37 , wherein a two-Judge Bench of the Supreme Court expressed a reservation on the view expressed in ITI Limited (2002) 5 SCC 510 : 2002 (5) ALT 10.1 (DN SC) (supra) and opined that the A & C Act being a complete code in itself which contains a non-obstante clause in Section 5 that stipulates that 'no judicial authority shall intervene except where so provided in Part-I of the A & C Act', leads to a conclusion that an application under CPC could not lie in respect of matters relating to arbitration. At the same time, mindful of the fact that the judgment delivered by a two-Judge Bench in ITI Limited (2002) 5 SCC 510 : 2002 (5) ALT 10.1 (DN SC) (supra) was a binding precedent, it was recommended in the latter case that the matter be referred to a larger Bench for re-consideration. 22. This court need not detain itself any further on the above aspect in the light of the fact that the legal position relating to the maintainability of a petition under Section 115 of the CPC stood altered w.e.f. 01.07.2002 and the amendment to the said provision does not give any leeway to a party to invoke the said provision against any interlocutory order, such as the one that has been passed in the instant case, more so when no jurisdictional error has been pointed out by learned counsel for the petitioner. Once the learned City Civil Judge has extended the timeline for completion of the arbitration proceedings in terms of the impugned order and has disposed of an application moved under Section 29A(5) of the A & C Act since no appeal against such an order is provided for in the A & C Act, the petitioner cannot find fault in the said order by filing a petition under Section 115 of the CPC and invoke the revisional/supervisory powers of the High Court.
Instead, it must wait for the final award to be passed and if aggrieved therefrom, seek its remedy as contemplated under Section 34 of the A & C Act. 23. We are afraid, the decision relied on by learned counsel for the petitioner is not of any assistance to bring home the point that the revision petition as filed, is maintainable against the impugned order. In view of the discussion above, the objection raised by the Registry regarding the maintainability of the present revision petition is upheld and the same is dismissed without going into the merits of the impugned order.