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Integrated Sales Services Ltd. v. Arun Dev
Factual and Procedural Background
The matter arises from an appeal under Section 50(1)(b) of the Arbitration and Conciliation Act, 1996 read with clause 15 of the Letters Patent. The appeal challenges an order of the learned Single Judge in MCA No. 1319 of 2015, which held that the International Arbitration Tribunal Award dated 28.03.2010 (ICDR Case No. 50-181-T-00327-09) becomes unenforceable in India. Shri Manohar, Senior Advocate, raised a preliminary objection that Section 3(1) of the Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986 (the 1986 Act) bars the present appeal. Shri Chauhan, for the appellant, contended that Section 50 of the 1996 Act (sub‑section (1)(b)) and clause 15 of the Letters Patent render the appeal maintainable.
Legal Issues Presented
- Whether Section 3(1) of the Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986 bars the present appeal to the Division Bench.
- Whether an appeal under Section 50(1)(b) of the Arbitration and Conciliation Act, 1996 read with clause 15 of the Letters Patent is maintainable before this Court.
Arguments of the Parties
Respondent's (Shri Manohar) Arguments
- Section 3(1) of the 1986 Act (particularly Section 3) does not permit filing of an appeal to the High Court from the Single Judge's judgment; therefore the instant appeal is not tenable.
- Absence of a statutory remedy of appeal is not always a sufficient ground to contend that a statute is constitutionally invalid (relied on Jamshed N. Guzdar v. State of Maharashtra (2005) 2 SCC 591).
- Relied on the Full Bench judgment in Mohd. Riyazur Rehman Siddiqui… v. Deputy Director Of Health Services…. (2008 (6) Mh. L.J 941) to submit that availability of LPA against appellate adjudication has been considered and that Section 3(1) bars such an appeal here.
Appellant's (Shri Chauhan) Arguments
- Section 50 of the Arbitration and Conciliation Act, 1996 (sub‑section (1)(b)) provides a remedy of appeal to this Court; the remedy of approaching the Supreme Court under the Constitution is not the appeal envisaged by Section 50.
- The High Court exercises both appellate and original jurisdiction; Section 3(1) of the 1986 Act is being misconstrued by respondents.
- Clause 15 of the Letters Patent provides the form for the appeal envisaged by Section 50; relied on authorities including Padmashri Purushottam Vyas v. Tusar Dhansukhlal Shah (2016 SCC OnLine Bom 255), Jet Airways (India) Limited v. Subrata Roy Sahara (2011 SCC OnLine Bom 1379), Shin-ETSU Chemical Company Limited v. Vindhya Telelinks Limited (2009) 14 SCC 16, Fuerst Day Lawson Limited v. Jindal Exports Limited (2011) 8 SCC 333, and Union Of India v. Mohindra Supply Co. (AIR 1962 SC 256 (1)).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jamshed N. Guzdar v. State of Maharashtra, (2005) 2 SCC 591 | That absence of statutory remedy of appeal is not always sufficient to contend that statute is constitutionally invalid. | Cited by respondents' counsel; the Court noted the submission but did not base its decision on this authority. |
| Mohd. Riyazur Rehman Siddiqui… v. Deputy Director Of Health Services…. , 2008 (6) Mh. L.J 941 | Consideration of availability of Letters Patent Appeal (LPA) against appellate adjudication in terms of Section 100-A of CPC. | Cited by respondents' counsel to argue Section 3(1) bars the appeal; Court noted the citation but relied on other authorities. |
| Padmashri Purushottam Vyas v. Tusar Dhansukhlal Shah, 2016 SCC OnLine Bom 255 | Support for maintainability of appeal to Division Bench in light of Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015. | Held by the Court to answer the controversy clearly and correctly; used to support maintainability of the appeal. |
| Jet Airways (India) Limited v. Subrata Roy Sahara, 2011 SCC OnLine Bom 1379 | Found that the 1986 Act does not bar Letters Patent Appeals of the kind in question. | Relied on (para 31) by the Court to conclude Section 3(1) does not bar the present LPA; Court treated this as supporting authority. |
| Shin-ETSU Chemical Company Limited v. Vindhya Telelinks Limited, (2009) 14 SCC 16 | Cited in support of the appellant's submissions regarding availability of appellate remedies. | Relying party's citation; Court noted it among authorities but based decision primarily on Padmashri and Jet Airways. |
| Fuerst Day Lawson Limited v. Jindal Exports Limited, (2011) 8 SCC 333 | Cited in support of the appellant's submissions regarding appellate jurisdiction and appeal mechanisms. | Cited by appellant; Court did not treat this as decisive and relied on Padmashri and Jet Airways instead. |
| Union Of India v. Mohindra Supply Co., AIR 1962 SC 256 (1) | Interpretation of the phrase “to the Court authorized by law to hear appeals”. | Cited by appellant's counsel to support argument that Section 50 requires an appellate forum identified by other enactment; Court noted the citation. |
Court's Reasoning and Analysis
The Court examined the judgments cited by the parties and found the Division Bench decision in Padmashri Purushottam Vyas v. Tusar Dhansukhlal Shah to be directly dispositive, holding appeals maintainable in light of Section 13 of the Commercial Courts Act, 2015. The Court observed that Section 50 of the 1996 Act provides for an appeal of the kind raised here. The Division Bench decision in Jet Airways (India) Ltd. v. Subrata Roy Sahara (para 31) was noted to have held that the 1986 Act does not bar such Letters Patent Appeals; the Court found support in the proviso to Section 3 and sub‑section (2) of the 1986 Act. The Court analysed the language of Section 3(1), concluding that the phraseology—particularly the words from “no appeal” till “shall lie to the High Court”—cannot be read to exclude appeals expressly provided by statute after adjudication by a Single Judge. The Court construed Section 3(1) as prohibiting appeals against appellate adjudication by a Single Judge, but not as barring appeals from original adjudication; since the impugned adjudication before the Single Judge was original, Section 3(1) did not bar the present appeal.
Holding and Implications
The preliminary objection raised under Section 3(1) of the 1986 Act is rejected.
Implications: The direct effect is that the present Letters Patent Appeal under Section 50(1)(b) of the Arbitration and Conciliation Act, 1996 read with clause 15 of the Letters Patent is held maintainable; the Court expressly relied on Padmashri Purushottam Vyas and Jet Airways as dispositive authorities. The opinion does not set out broader implications beyond the maintainability of this appeal and the rejection of the preliminary objection.
1. Shri Manohar, Senior Advocate has raised preliminary objection. According to him, the instant appeal filed by the appellant under Section 50(1)(b) of the Arbitration and Conciliation Act, 1996, (referred to as 1996 Act) read with clause 15 of Letters Patent, is not tenable.
2. We, at the outset, state that availability of remedy of appeal to the appellant against the impugned order passed by the learned Single Judge is not a dispute. The learned Single Judge of this Court in MCA No. 1319 of 2015, has held that Award dated 28.03.2010 passed by the International Arbitration Tribunal in ICDR Case No. 50-181-T-00327-09 becomes unenforceable in India, is questioned in the present appeal.
3. Shri Manohar, learned counsel, has invited our attention to the Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986, (hereinafter referred to as 1986 Act), particularly Section 3 thereof. Section 3(1), according to him, does not permit filing of an appeal at all from the said judgment delivered by the learned Single Judge. He has further submitted that absence of statutory remedy of appeal is not always sufficient to contend that statute is constitutionally invalid. He has relied upon the judgment of the Hon'ble Apex Court in the case of Jamshed N. Guzdar v. State of Maharashtra, reported at (2005) 2 SCC 591, to buttress this submission.
4. Full Bench judgment in the case of Mohd. Riyazur Rehman Siddiqui… v. Deputy Director Of Health Services…., reported at 2008 (6) Mh. L.J 941, is also relied upon by him to submit that there the availability of LPA against appellate adjudication by this Court in terms of Section 100-A of the Code of Civil Procedure has been looked into. He submits that here, the enactment itself vide its Section 3(1) bars such an appeal.
5. Shri Chauhan, learned counsel submits that under Section 50, availability of remedy of appeal before this Court under sub-section (1)(b) cannot be disputed. The remedy of approaching the Hon'ble Apex Court under the Constitution of India, is not the appeal envisaged therein. He contends that this High Court exercises appellate as also original jurisdiction and the respondents by raising preliminary objection are twisting clear and apparent language used in Section 3(1) of above mentioned 1986 Act. He draws support from the judgment of the Division Bench of this Court in the case of Padmashri Purushottam Vyas v. Tusar Dhansukhlal Shah, reported at 2016 SCC OnLine Bom 255; Jet Airways (India) Limited v. Subrata Roy Sahara, reported at 2011 SCC OnLine Bom 1379; Shin-ETSU Chemical Company Limited v. Vindhya Telelinks Limited, reported at (2009) 14 SCC 16 and Fuerst Day Lawson Limited v. Jindal Exports Limited., reported at (2011) 8 SCC 333, to support his submissions.
6. He also draws support from the judgment of the Hon'ble Apex Court in the case of The Union Of India v. Mohindra Supply Co. , reported at AIR 1962 SC 256 (1), to urge that the words “to the Court authorized by law to hear appeals” are interpreted therein. He submits that Section 50 of the Arbitration and Conciliation Act, 1996, only provides for remedy of appeal but form is required to be indicated by some other enactment and clause 15 of Letters Patent in present matter is that enactment.
7. The short question before us is, therefore, whether Section 3(1) of 1986 Act bars present appeal. The said provision reads thus:
“3. Abolition of appeal from judgment or order of single Judge of High Court made in exercise of original or appellate jurisdiction.:- (1) Notwithstanding anything contained in the Letters Patent for the High Court of Judicature at Bombay, dated the 28th December, 1865 and in any other instrument having the force of law or in any other law for the time being in force, no appeal, *arising from the applications referred to in section 2 or an appeal under any statute instituted or commenced, whether before or after the commencement of this act, shall lie to the High Court from a Judgment, decree or order of a single Judge of the High Court made or after the commencement of this Act, whether in the exercise of the original or appellate Jurisdiction of the High Court.
*Subs. By Mah. Act No. 27 of 2008, arising from a suit …. commenced, w.e.f 18.3.2013
#Provided that, the judgment or orders passed by the High Court during the period commencing from the 1st July, 1987 and ending on the date of commencement of the Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Amendment) Act, 2008, (Mah. XXVII of 2008) in any appeal against judgment or order passed by a Single Judge in any such application or appeal, shall be deemed to have been validly passed and shall not be called in question in any Court on the Ground that no appeal was provided against such judgment or order of a Single Judge”.
#Added by Mah. Act No. 27 of 2008, w.e.f 18.3.2013”
8. We have perused the judgments to which our attention has been invited. We find that Division Bench judgment in the case of Padmashri Purushottam Vyas v. Tusar Dhansukhlal Shah, (supra), answers the controversy clearly and correctly. The appeal to Division Bench is held maintainable in the light of Section 13 of the Commercial Courts. Commercial Division and Commercial Appellate Division of the High Courts Act, 2015. In this matter, it is Section 50 of 1996 Act which provides such an appeal. In para 31, the Division Bench of this Court in the case of Jet Airways (India) Ltd. v. Subrata Roy Sahara, (supra) has found that 1986 Act does not bar such LPA. Proviso to Section 3 and sub-section (2) also support this conclusion.
9. In view of these two judgments, we do not find it necessary to delve into other judgments cited by the respective counsel. The language of Section 3(1) is very clear. The words therein commencing from “no appeal” till “shall lie to the High Court” cannot be construed to mean that an appeal under any statute would not lie after adjudication of lis therein by the learned Single Judge of this Court. The words “no appeal arising from” qualify not only applications under Article 226 or 227 of the Constitution of India, but also words “an appeal under any statute”. To us, Section 3(1) clearly prohibits filing of appeal against any appellate adjudication by the learned Single Judge and not in original adjudication. Any other interpretation would lead to an absurdity. Before us, it is not in dispute that the impugned adjudication is an original adjudication.
10. We, therefore, find no substxsance in the preliminary objection raised by the respondents. It is accordingly rejected.
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