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2021 DIGILAW 492 (BOM)

Essar Oil And Gas Exploration And Production Limited v. Toshiba Water Solutions Private Limited

2021-03-02

R.D.DHANUKA, V.G.BISHT

body2021
JUDGMENT 1. By this Appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996, the appellant (original petitioner) has impugned the order dated 27th January, 2021 passed by the learned Single Judge in the Notice of Motion No. 1165 of 2019 inter-alia praying for stay of the Arbitral Award dated 26th November, 2018 passed by the sole Arbitrator. 2. Mr. Narichania, learned senior counsel for the respondent raises an issue of maintainability of this Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 on the ground that the order impugned in this appeal is order passed in the notice of motion, seeking stay of the award under Section 36 of the Arbitration and Conciliation Act, 1996 and is not an appealable order under Section 37 of the Arbitration and Conciliation Act, 1996. 3. Mr. Sancheti, learned senior counsel for the appellant on the other hand would submit that the Notice of Motion No. 1165 of 2019 was filed by his client inter-alia praying for stay of the arbitral award in the Commercial Arbitration Petition No. 485 of 2019 which petition was filed under Section 34 of the Arbitration and Conciliation Act, 1996 and thus the Notice of Motion for stay having been filed in petition under Section 34 of the Arbitration and Conciliation Act, 1996 an order therein would be appealable under Section 37 of the Arbitration and Conciliation Act, 1996. 4. A perusal of Section 37 of the Arbitration and Conciliation Act, 1996 clearly indicates that an appeal shall lie only from the orders specified therein under sub-section (1) and (2) of Section 37 and no other orders. In our view, no appeal is permitted under Section 37 against the order passed by a learned Single Judge in an application for stay of the arbitral award and more particularly under Section 36 of the Arbitration and Conciliation Act, 1996. Merely because the said notice of motion for stay under Section 36 of the Arbitration and Conciliation Act, 1996 was filed in the petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 , the order passed in such notice of motion/interim application cannot be construed as an order under Section 34 of the Arbitration and Conciliation Act, 1996. Arbitration petition filed by the applicant under Section 34 is still pending. Arbitration petition filed by the applicant under Section 34 is still pending. No order appealable under Section 34 of the Arbitration and Conciliation Act, 1996 is passed by the learned Single Judge. 5. The Appeal is accordingly dismissed as not maintainable. In view of the dismissal of the appeal, Interim Application does not survive and is accordingly disposed of.