Tee) gm eM UO rae ALL ORDERS/AWARDS FINAL oN OaGCn ese} fea oles eae) Pe eummeolied Nee Raga a LECTURE 28 Rone creas rere)O Section 17 Section 37 Provisions Section 13 Commercial Court ActSection 37 (Cuarren IX, APPEALS 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 fromno others) to the court authorisedby 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. (© granting or refusing to grant any measure under Section 9;, (O 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 to in sub-section (2) or sub-section (3) of Section 16; oF (2) granting or refusing to grant an interim measure under Section 17, (3)No second appeal shall ie from an order passed in appeal under this section, but nothingiin this section shall affect or take away any right to appeal to the Supreme Court. Subs. for “An appeal” by 33 of 2019, 8.8 (w.e. 30-8-2019) 51. Subs, for clauses (a)and (b) by Act 3 of 2016, S.20 (w.tef. 23-10-2015). Prior to substitution clauses (a) and (b) read as “(@) granting or refusing to grant any measure under Section 9; (setting aside or refusing to set aside an arbitral award under Section 34.”30[17. Interim measures ordered by arbitral tribunal—{1) A party may, during the arbitral proceedings 2* * *], apply to the arbitral tribunal— (© forthe appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or G for an interim measure of protection in respect of any of the following matters, namely— (@ the preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement; © securing the amount in dispute in the arbitration; (© the detention, preservation or inspection of any property or thing which is the subject matter of the dispute in arbitration, ors to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, or any ‘observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence: @ interim injunction or the appointment of a receiver: © such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient, and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, andin relation, to, any proceedings before it. (2) Subjectto any orders passedin an appeal under Section 37, any order issued by the arbitral tribunal under this section shall bbe deemed to be an order of the cout forall purposes and shall be enforceable under the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were an order of the court.] subs by Aet 302016, 5.10 (88 28-10-2015) Pro substation ead as: 17-ner eases ordaad by evbial burl) Vales otherwise agen bythe pares, th abil bua maya ‘herecustofs party cedar apart tke anyteramessze of lea he arin bal a cose sea) sespet ofthe subjects of he dispute (@)Theabiva tural aay requ pay pride appre security i comecon wth measure ordre under sb section)” The words and gues or at anytime ater the making ofthe abil avd but befor itis enforced in accordance with quinu amily ada taakeenaneeSection 13 of Commercial Courts Act Section 13 of Commercial Courts Act 13. Appeals from decrees of Commercial Courts and Commercial Divisions.—[(1) Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order. (1-A} Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction of, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order: Provided that an appeal shall ie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and Section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996).] (2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act.AMAZON.COM NWA INVESTMENT HOLDINGS LLC VERSUS FUTURE RETAIL LIMITED & ORS 2021 SCC OnLine SC 557 + “There can be no doubt that Section 37 is a complete code so far as appeals from orders and awards made under the Arbitration Act are concerned. This has further been strengthened by the addition of the non- obstante clause by the Arbitration and Conciliation (Amendment) Act, 2019.”KANDLA de), CORPORATION V. OCI CORPORATION Poni Be iee va * This case is an authority for the proposition that the Arbitration Act is a self-contained code on matters pertaining to arbitration, which is exhaustive in nature. The appeal provision in that case (Section 50) was held to carry a negative import that only such matters as are mentioned in the Section are permissible, and matters not mentioned therein cannot be brought in. It was further held that what follows from this is that the substantive provision of appeal is contained in Section 50 of the Act, which alone must be read, Section 13(1) of the Commercial Courts Act, 2015 being a general provision, which must give way to the specific provision contained in Section 50 (Para 17-28)Deep Industries Ltd. v. ONGC, (2020) 15 SCC 706 (para 15-28) + The Apex Court while pronouncing its order in the case made reference to law laid down in the case of Deep Industries Ltd. Vs. ONGC & Anr., wherein it had hae ke ee eee eur) 227 should be extremely circumspect in interfering, Mrs ee Rue Use ee Ce Mike Pee Meee Re Mest tt eer sige aus Ree teDeep Industries Ltd. v. ONGC 15. 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, itis 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 Ltd. [Union of India v. Varindera Constructions Ltd., (2020) 2 SCC 11 : (2020) 1 SCC (Civ) 277] , dated 17-9-2018, disposing of SLP (C) No. 23155 of 2013, this Court has imposed the seifsame limitation on first appeals under Section 37 so that there be a timely resolution of all matters which are covered by arbitration awards. 16. Most significant of all is the non obstante clause contained in Section $ which states that notwithstanding anything contained in any other law, in matters that arise under Part | 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] 17. This being the case, there is no doubt whatsoever that if petitions were to be filed under Articles 226/527 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. At the same time, we cannot forget that Article 227 is a constitutional provision which remainsuntouched by the non obstante clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us hereinabove so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction. 18. In Nivedita Sharma y. COAI [Nivedita Sharma v. COAI, (2011) 14 SCC 337 : (2012) 4 SCC (Civ) 947] , this Court referred to several judgments and held : (SCC pp. 343-45, paras 11-16) “11, We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, sue warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation— L. Chandra Kumar v. Union of India {L. Chandra Kumar v. Union of india, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] . However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi.juccial body/authority, and it san altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum 1s created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 12. In Thansingh Nathmal v. Supt. of Taxes [Thansingh Nathmal v. Supt. of Taxes, AIR 1964 SC 1419] , this Court ‘adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed : (AIR p. 1423, para 7) ‘7. ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining reliet. Where itis open to the aggrieved petitioner fo move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit byentertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up’ 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 ‘SCC 433 : 1983 SCC (Tax) 131], this Court observed: ‘11. tt is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of, This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford (Wolverhampton New Waterworks Co. v. Hawkesford, (1859) 6 CBNS 336 : 141 ER 486) in the following passage : (ER p. 495) “... There are three classes of cases in which a liability may be established founded upon a statute. ... But there isa third class viz. where a liability not existing at common law is created by a statute which at the same time ives a special and particular remedy for enforcing it. .. the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.” The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. [Neville v. London Express Newspapers Ltd., 1919 AC 368 (HL)] and has been reaffirmed by the Priv Council in Attorney General of Trinidad & Tobago v. Gordon Grant & Co. Ltd. [Attorney General of Trinidad Tobago v Gordon Grant & Co, Lid 1935 AC 532 (PC and Secy. of State v, Mask & Co, [Secy. of State v. Mask & Co., 1940 SCC OnLine PC 10 : (1939-40) 67 IA 222 : AIR 1940 PC 105] it has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.’ 14, In Mafatla! industries Ltd. v. Union of india {Mafatlal industries Ltd. v. Union of india, (1997) 5 SCC 536], B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed : (SCC p. 607, para 77) ‘77. ... So far as the juriscetion of the High Court under Article 226— or for that matiey the jurisdiction of this Court under Article 32— is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would cértainly take noteof the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. 15, In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim "Zila Parishad, "Muzaffarnagar [Baburam | Prakash Chandra ‘Maheshwari v. Antarim Zila Parishad, Muzaffarnagar, AIR 1969 SC 556] , it has been held that an alternative remedy is ‘not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge. 16. It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal v. Supt. of Taxes [Thansingh Nathmal v. Supt. of Taxes, AIR 1964 SC 1419] ang other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the agerieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field.” 19. In SBP & Co. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] , this Court while considering interference with an_order passed by an Arbitral Tribunal under Articles 226/227 of the Constitution laid down as follows : (SCC p. 663, paras 45-46) “45, It is seen that some High Courts have proceeded gn the basis that any order passed by.an Arbitral Tribunal during arbitration, would be capable of being challenged under Article 226 or 227 of the Constitution. We see no warrant for Such an approach. Section 37 makes certain orders of the Arbitral Tribunal appealable. Under Section 34, the aggrieved party has an averue for ventlating its grievances against the award including any in-between orders that might have een passed by the Arbitral Tribunal acting under Section 16 of the Act. The party aggrieved by any order of the Arbitral Tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The Arbitral Tribunal is, after all, a creature of a contract between the parties, the arbitration agreement, even though, if the occasion arises, the Chief Justice may constitute it based on the contract between the parties, But that would not alter the status of the Arbitral Tribunal. It will stil be a forum chosen by the Pates by agreement. We, therefore, disapprove ofthe stand adapted by some of the High Courts that any order passed 3 the Arbitral Tribunals Capable of being corrected by the High Court under Article 226 or 227 ofthe Constitution. Such an intervention by the High Courts is not permissible.6, The oblect of rulninbing judicial intervention whilsthe matter ish theiprocess of being arbltrated upon, will certakaly be defeated if the High Court could be approached under Article 227 or under Article 326 of the Constitution against every order made by the Arbitral Tribunal. Therefore, itis necessary to indicate that once the arbitration has commenced in the Arbitral Tribunal, parties have to wait until the award is pronounced unless, of course, a right of appeal is available to them under Section 37 of the Act even at an earlier stage.” 20, While the learned Adltignal Solicitor General is correct in stating that this statement of the law does not directly apply on the facts ofthe present case, yet its important to notice that the seven Judge Bench [SBP & Co. v. Patel Engg. Lid, {2005) 8 SCC 618] has referred to the object of the Act being that of minimising judicial intervention and that this Important object should always be Kept in the foreffont when an Article 227 petition is being disposed of against proceedings that are decided under the Act. 21, [tis true that in Punjab Agro Industries Corp, Lt, [Puniab Agro Industries Corpn, tt. v. Kewl Singh Dhilion (2008) 20 SCC 128], this Court distinguished SBP & Co. [SBP & Co. v. Patel Engg. (td., (2005) 8 SCC 618] stating that it will not apply to a case of a non-appoint ment of an arbitrator. This Court held : (Punjab Agro Industries Corpn. Ltd. case [Punjab Agro Industries Corpn. Ltd. v. Kewal Singh Dhillon, (2008) 10 SCC 128] , SCC p. 132, para 9) “9. We have already noticed that though the order under Section 11(4) is a judicial order, having regard to Section 11(7) relating to finality of such orders and the absence of any provision for appeal, the order of the Civil Judge was open to challenge in 2 wrt petition under Article 227 of the Constitution. The decision in SBP & Co. ISBP fico. Patel Engg, It, (2005) 8 SCC 618] does not bar such a writ petition, The observations of this Court in SBP & Co. [SBP & Co. v. Patel Engg’ Utd., (2005) 8 SCC 618] that against an order under Section 11 of the Act, only an appeal under Article 136 of the Constitution would lie, is with reference to the orders made by the Chief Justice of a High Court or by the designate Judge ot that High Court. The said observations do not apply to 2 subordinate court functioning as designate of the Chief justice.” {emphasis in original) What is important to note is that the observations of this Court in Punjab Agro Industries Corpn, td. [Punjab Agro industries Corpn. Ltd. v. Kewal Singh Dhillon, (2008) 10 SCC 128] were for the reason that no provision for appeal ad been piven by statute against the orders passed under Section 12, which is why the High Court's supervisory jurisdiction should first be invokedbefore: coming toi this Court under Article 136, Given the facts of the besent case, this case Js ecuall distinguishable for the reason that in this case the Article 227 jurisdiction has been exercised by the Hig! Court only after a first appeal was dismissed under Section 37 of the Act. 22. One other feature of this case is. of some importance. As stated hereinabove, on 9-5-2018, a Section 16 application had been dismissed by the learned arbitrator in which substantially the same contention which found favour with the High Court was taken up. The dhill of Section 16 of the Act is that where a Section 26 application is dismissed) no appeal is provided and the challenge to the Section 16 application being dismissed must await the passing of a final award at which stage it may be raised under Section 34. What the High Court has done in the present case is to invert this statutory scheme by going into exactly the same matter as was gone into by the arbitrator in the Section 16 application, and then decided that the two-year ban/blacklisting was no part of the notice for arbitration issued on 2-11-2017, a finding which is directly contrary to the finding of the learned arbitrator dismissing the Section 1@ application. For this reason alone, the Judgment under appeal needs to be set azide. Even otherwise, as has been correctly pointed out by Mr Rohatgt, the judgment under appeal goes into the merits of the case and states that the action of putting the Contractor and his Directors “on holiday’ is not a consequence of the termination of the agreement. This is wholly incorrect as it is only because of the termination that the show-cause notice dated 18-10-2017 proposing to impose a two-year ban/blacklisting was sent. Even otherwise, entering into the general thicket of disputes between the parties does not behove a court exercising jurisdiction under Article 227, where only jurisdictional errors can be corrected. Therefore to state that the ban order was passed under a General Contract Manual and not Clause 18 of the agreement, besides being incorrect, would also be incorrect for the reason that the General Contract Manual does not mean that such order was issued as an administrative order invoking the executive power, but was only as an order which emanated from the contract itself. Further to state that “serious disputes” as to jurisdiction seem to have cropped up is not the same thing as saying that the Arbitral Tribunal lacked inherent jurisdiction in going into and deciding the Section 17 application. In point of fact, the Arbitral Tribunal was well within its jurisdiction in referring to the contract and the ban order and then applying the law and finally issuing the stay order, Even if it be accepted that the principle laid down by Section 41(e) of the Specific Relief Act was infracted, in that damages could have been granted, as a result of which an injunction ought not to have been issued, is a mere error of law and not an error ofjurisdiction, much less an error of inherent jurisdiction going to the root of the matter. Therefore, even otherwise, the High Court judgment cannot be sustained and Is set aside. 23, We reiterate that the policy of the Act is speedy disposal of arbitration cases. The Arbitration Act is a special Act and a geltcontained code, dealing with arbitration, This Court in Fuerst Day Lawson Ltd. (Fuerst ay Lawson, Ltd. v. Jindal Exports Lt, (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178} , has specifically held as follows : (SCC p. 371, para 89) "89, It is, thus, to be seen that Arbitration Act, 1940, from its inception and right through to 2004 (in BS. Sathappan IPS. Sathappan v. Andhra Bank Ltd., (2004) 11 SCC 674] ) 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 UNciraat Model must be held only to be more so. Once its held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lucid expression [S.N. Srikantia & Co. v. Union of india, 1965 SCC Online Bom 133 : AIR 1967 Bom 347] of Tulzapurkar,J., that it carries with it 19. .. 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. ..’ (S.N. Srikantia & Co. case [S.N. Srikantia & Co. v. Union of India, 1965 SCC OnLine Bom 133 : AIR 1967 Bom 347] , SCC Online Bom para 19) 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.” What becomes clearis that had the High Court itself disposed of the first appeal in the present case, no Article 227 petition could possibly lie — all that could perhaps have been done was to file an LPA before a Division Bench of the same High Court This, as. we have seen, has specifically been interdcted by Fuerst Day Lawson Ltd. [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd, (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] Merely because, on the facts of this case, the first appeal was disposed of by a court subordinate to the High Court, an Article 227 petition ought not to have been entertained. 24. Mr Rohatgi is also correct in pointing out thatthe legislative polly qua the general revisional jurisdiction thats contained b the amendments made to Section 115 CPC should also be kept in mind when the High Courts dispose of petitions file under Article 227. The legisiative policy is that no revision ies if an alternative remedy of appeal is available. Further, even when 2revision does Iie Ih lies only: eeelnst-2 final elsposal of the entire: matter and nat urinst Inferlocutony: order. These amendments viere considered in Tek singh v. Shashi Verma [Tek singh v Shashy Verma, (2019) 16 S¢C 678 : (2020) 2 SCC (Civ) 753] in which this Court adverted to these amendments and then stated : (SCC p. 681, paras 5-6) ‘5... A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders. 6. ... 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 settied. In OLF Housing & Construction Co. (P) Ltd. v. Sarup Singh [DLF Housing & Construction Co. (P) Ltd. v. Sarup Singh, (1969) 3 SCC 807] this Court held : (SCC pp. 811-12, para S) ‘5, ... 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 theit 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 caver either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which itis 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 of 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. 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 i his, manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virally as if it was an appeal’ (SCR at p. 373)"* In BGS SGS SOMA JV v. NHPC, (2020) 4 SCC 234, the Court dealt with the maintainability of an appeal under Section 37 of the Act in a casein which an application under Section 34 of the Act was ordered to be transferred from a court which had no jurisdiction to a court which had jurisdiction. It specifically ruled out appeals under Order XLIII Rule 1 of the Code of Civil Procedure when it comes to orders being made under the Arbitration Act (see BGS)ENFORCEMENT PROCEEDINGS ARE NOT COVERED BY THE APPEAL PROVISION + In Chintels (India) Ltd. v. Bhayana Builders (P) Ltd., Ley a Rel PB atom elcome Vester ML Ae e sy the Apex Court was as to when an application seeking Puente aaninene eee ences ATU UR od' Co LALO LAT ROMA KHOR R 1 a-1(0 0 - arbitral award” under Section 34 and thus be Paras EL en Okay atl answering this question, the Court referred to Section 37(1) of the Act and stressed the fact that an PV ecuhcmeeor eae en haitad an) accordance 100 with sub-sections (2) and (3) of Section 34-,11. A reading of Section 34(1) would make it clear that an application made to set aside an award has to be in accordance with both sub-sections (2) and (3). This would mean that such application would not only have to be within the limitation period prescribed by sub-section (3), but would then have to set out grounds under sub-sections (2) and/or (2-A) for settin, aside such award. What follows from this is that the application itself must be within time, ani if not within a period of three months, must be accompanied with an application for condonation of delay, provided it is within a further period of 30 days, this Court having made it clear that Section 5 of the Limitation Act, 1963 does not apply and that any delay beyond 120 days cannot be condoned — see State of H.P. v. Himachal Techno Engineers [State of H.P. v. Himachal Techno Engineers, (2010) 12 SCC 210 : (2010) 4 SCC (Civ) 605] at para 5. 12. We now come to Section 37(1)(c). It is important to note that the expression “setting aside or refusing to set aside an arbitral award” does not stand by itself. The expression has to be read with the expression that follows— “under Section 34”. Section 34 is not limited to grounds being made out under Section 34(2). Obviously, therefore, a literal reading of the provision would show that a refusal to set aside an arbitral award as delay has not been. condoned under sub-section (3) of Section 34 would certainly fall within Section 37(1) (0). The aforesaid reasoning is strengthened by the fact that under Section 3702), ‘an appeal lies when a plea referred to in sub-section 2) or (3) of Section 16 is accepted. This would show that the legislature, when it wished to refer to part of a section, as opposed to the entire section, did so. Contrasted with the language of Section 37(1)(c), where the expression “under Section 34” refers to the entire section and not to Section 34| 2) only, the fact that an arbitral award can be refused to be set aside for refusal to condone delay under Section 34(3) gets further strengthened.21. So far as Section 37 of the Arbitration Act, 1996 and Section 39 of the Arbitration Act, 1940 were concerned, this Court agreed with counsel's argument, but disagreed with the submission insofar as Section 50 of the 1996 Act was concerned, as follows; (fuerst Day Lawson Lt case [Fuerst Day Lowson Ltd v.indal Exports Lt, (2011) 8 SCC 333 (2011) 4SCC (Civ) 174), p. 353, paral "52, Having regard to the grammatical use of brackets or parentheses, if the words “(and from no others)” occurring in Section 39 of the 1940 Act or Section 37 of the 1996 Act are viewed as “an explanation or afterthought” or extra information separate from the main context, then, there may be some substance in Mr Dave's submission that the words in parenthesis are surplusage and in essence the provisions of Section 39 of the 1940 Act or Section 37 of the 1996 Act are the same as Section 50 of the 1996 Act. Section 39 of the 1940 Act says no more and no less than what is stipulated in Section 50 of the 1996 Act. But there may be a different reason tocontend that Section 39 of the 1940 Actor its equivalent section 37 ofthe 1996 Act are fundamentally different from Section 50 of the 1996 Act and hence, the decisions rendered under Section 39 of the 1940 Act may not have any application to the facts arising under Section SO of the 1996 Act. But for that we need to take a look at the basic scheme of the 1996 Act and its relevant provisions.” 22. The reasoning in Essar Constructions [Essar Constructions v. N.P. Rama Krishna Reddy, (2000) 6 SCC 94] commends itself to Us, being on a pari materia provision to that contained in Section 37(1)(c) of the Arbitration Act, 1996. We may only add that the reasoning of the aforesaid judgment is further strengthened by our analysis of the additional words “under Section 34” Which occur in Section 37(I}(c, and which are sbsent In Section 49(1)(u) [the par! materia provision to Section 34 of the Arbitration Act, 1996 being Section 30 of the Arbitration Act, 1940], 23. In point of fact, the “effect doctrine” referred to in Essar Constructions [Essar Constructions v. N.P. Rama Krishna Reddy, (2600) 6 SCC 94) is Statutorily inbuilt in Section 37 of the Arbitration Act, 1996 itself. For this purpose, it is necessary to refer to Sections 37(1)() and 3712}(a), So far as Section 37(2}(0) is. concerned, where a party is referred to arbitration under Section 8, no appeal lies. This is for the reason that the effect of such order is that the parties must go to arbitration, it being left to the learned arbitrator to decide preliminary points under Section 16 of the Act, which then become the subject-matter of appeal under Section 372Na) or the subject-matter of grounds to set aside under Section 34 an arbitral award ultimately made, depending upon whether the preliminary points are accepted or rejected by the arbitrator. ts also important to note that an order refusing to refer parties to arbitration under Section 8 may be made on a prima facie finding that no valid arbitration agreement exists, or on the ground that the original arbitration agreement, or a duly certified copy thereof is not annexed to the application under Section 8. In either case 1.8. whether the preliminary ground for moving the court under Section 8 is not made out either by nat annexing the original arbitration agreement, ora duly certified copy, or on merits — the court finding that prima facie no valid agreement exists — an appeal lies under Section 37(1)(a),24, Likewise, under Section 37(2)(a), where a preliminary ground of the arbitrator not having the jurisdiction to continue with the proceedings is made out, an appeal lies under the said provision, as such determination is final in nature as it brings the arbitral proceedings to an end. However, if the converse is held by the learned arbitrator, then as the proceedings before the arbitrator are then to catty ony and the aforesaid decision on the. preliminary ground is amenable to. challenge under Section 34 after the award is made, no appeal is provided. This is made clear by Sections 16(5) and (6) of the Arbitration Act, 1996 which read as follows: “16. Competence of Arbitral Tribunal to rule on its jurisdiction.—(1)-(4) tee (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 ayard may make an application for setting aside such an arbitral award in accordance with Section 34.” 25. Given the fact that the “effect doctrine” is part and parcel of the statutory provision for appeal under Section 37, and the express language of Section 37(1)(c), it is difficult to accede to the argument of Shri Rohatgi.AMAZON.COM NV INVESTMENT HOLDINGS LLC VERSUS FUTURE RETAIL LIMITED & ORS 2021 SCC OnLine SC 557 Also, in the context of Section 37(2)(b), the entirety of Section 17 was referred to when Sections 17 and 37 were first enacted in std Itis only by the 2015 Amendment Act that Section 17 wi Diecast What is significant in this context is that no corresponding amendment was made to Section 37(2)(b) ene nee eerie eee egINTERIM AWARD The arbitration law in India permits the passing of an interim award by the Arbitral Tribunal vide section 31(6) of the Arbitration and Conciliation Act, 199 on any matter with respect to which it may make a final award. Section 2(c) of the Arbitration and Conciliation Act, defines Award and provides that the term “arbitral award” includes an interim award. An interim award is different from an interim order in as much as an interim award has been held to be a final award, but made at an interim stage. In view of the same, an interim award, unlike an interim order under Section 17 of the Act, can be challenged under Section 34 of the Act and not under Section 37 of the Act.INTERIM AWARD AND INTERIM ORDER IS DIFFERENTMcDermott International Inc. v. Burn Standard Co. Ltd. (2006)11SCC181 “The 1996 Act does not use the expression "partial award". It uses interim award or final award, An award has been defined under Section 2(c) to include an interim award. Sub-section (6) of Section 31 contemplates an interim award. An interim award in terms of the said provision is not one in respect of which a final award can be made, but it may be a final award on the matters covered thereby, but made at an interim stage.” “if the partial award answers the definition of the award, as envisaged under Section 2(c) of the 1996 Act, ‘for all intent and purport, it would be a final award. ” We cannot also lose sight of the fact that BSCL did not raise any objection before the arbitrator in relation to the jurisdiction of the Arbitrator. A ground to that effect has also not been taken in its application under Section 34 of the Act. We, however, even otherwise do not agree with the contention of Mr. Mitra that a partial award is okin to a preliminary decree. On the other hand, we are of the opinion that it is final in all respects with regard to disputes referred to the arbitrator which are subject matter of such award. We may add that some arbitrators in stead and in place of using the expression "interim award" use the expression "partial award", By reason thereof the nature and character of an award is not changed. As, for example, we may notice that in arbitral proceedings conducted under the Rules of Arbitration of the ‘International Chamber of Commerce, the expression "partial award'" is generally used by the arbitrators in place of interim award. [n any view of the matter, BSCL is not in any way prejudiced. We may state that both the partial award and the final award are subject matter of challenge under Section 34 of the Act.Section 33 of the Act empowers the arbitral tribunal to make correction of errors in arbitral award, to give interpretation of a specific point or a part of the arbitral award, and to make an additional award as to claims, though presented in the arbitral proceedings, but omitted from the arbitral award. Subsection (4) empowers the arbitral tribunal to make additional arbitral award in respect of claims already presented to the tribunal in the arbitral proceedings but omitted by the arbitral tribunal provided 1, There is no contrary agreement between the parties to the reference; 2. A party to the reference ,with notice to the other party to the reference ,requests the arbitral tribunal to make the additional award; 3. Such request is made within thirty days from the receipt of the arbitral award; 4, The arbitral tribunal considers the request so made justified; and 5. Additional arbitral award is made within sixty days from the receipt of such request by the arbitral tribunal The additional award, in our opinion, is not vitiated in law.”PRINCIPLES FOR PASSING AN INTERIM AWARD ON ADMISSIONS Order XII Rule 6 CPC PrinciplePRINCIPLES FOR PASSING AN INTERIM AWARD ON ADMISSIONS * The principles for passing an interim award on admissions are akin to the principles followed by courts in passing a judgment on admissions under Order XII Rule 6 of the Code of Civil Procedure, 1908. In the ludement of Uttam Singh Duggal Co. Ltd. vs. United Bank of India Ltd & Ors[(2000) 7 SCC 120] the Hon'ble Supreme court observed that the principles of Order Xil Rule 6 are wide in their implication and a decree on admissions is to be passed when it is impossible for the party making the admission to succeed in the face of such admissions made by him. * As to the nature of admissions, the Hon’ble Apex Court in Himani Alloys Ltd. v. Tata Steel Ltd. 2011(7)Scale566 has laid down, that the admissions should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. The judgment should be made keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the Defendant. Therefore the Court should exercise its discretion only when the admission is clear, unequivocal unambiguous and unconditional. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the arty that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties.CAN INTERIM AWARDS BE + The issue of pendency of counter claims to oppose PASSED passing of interim award, was discussed succinctly by division bench judgment of Delhi High Court D U R | NG wherein the court was pleased to answer the issue in negative in Numero Uno International Ltd. v. Pp E N D E N CY O F Prasar Bharti 2008(1)ArbLR446(Delhi) COUNTER eet CLAIMNumero Uno International Ltd. v. Prasar Bharti 2008(1)ArbLR446(Delhi) “7.1n the light of the above, there is no gainsaying that the making of a counter claim is tantamounting to institution of an independent suit for adjudication of the claim of the defendant. Not only court fee is payable on the counter claim but the counter claim remains unaffected by the withdrawal of the original suit evidently on the principle that the counter claim is a suit in itself. So also the court has always the power to direct a set off or counter claim being tried separately from the original suit. Such being the legal nature and character of a counter claim, its pendency does not denude the arbitrator of the power to make an interim award in the original suit/claim if such an interim award is otherwise justified. What is significant is that the legality of an interim award may be tested by reference to the material on which it is based rather than the areas of dispute that may still call for adjudication between the parties, If an interim award on the basis of material available On record isnot justified, the Court may set aside the same under Section 34 of the Act. No interference with an interim award would, however, be permissible only because the defendant has made a counter claim or because some areas of dispute independent of the area covered by the interim award remains to be resolved. 8, The issue can be viewed from yet another angle. The making of the interim award ensures to the party in whose favor the same is made the payment of an amount which is an admitted position payable to it, There is no reason why the payment of what js admittedly due should await the determination of other disputes which may take years before they are finally resolved. If at the conclusion of the arbitral proceedings, the defendant were to Succeed in his claim, either wholly af partially, and if after adjustment of the emounts found payable to the plaintiff, any amount is eventually held payable to one or the other party, the arbitrator can undoubtedly make Such an adjustment and direct payment of the amount to one or the other party, as the case may be. The final award would in any such case also take into consideration the payments, if any, made under the interim award. Suffice it to say that the making of the interim award in no way prevents the arbitrator from making adjustments ofthe emount in the final award and doing complete justice between the parties. By that logic even if we assume that the Prasar Bharti was to fail in substantiating its further claims which are disputed and the appellant were to succeed wholly in the counter claim that it has made, all that it would result in is an award in favor of the appeliant. There is, therefore, no inherent illegality or perversity in the making of the interim award by the arbitrator so as to call for interference by this Court under Section 34 of the Act.”