Prabir Kumar Majumdar, J.:— Six appeals have been heard together being Appeal from Original Order nos. 72 to 77 of 1963. Six appeals are against the orders passed by P.C Borooah, J. on 20th January, 1983 in six application filed by the respondent, University of North Bengal for setting aside six awards filed in this court. The said orders all passed on 20th January, 1983 are identical in terms. By she said orders it has been held by the learned Judge of the court of first instance that this court has no jurisdiction to entertain the awards filed in this court, as according to his Lordship, this court is not the court within the meaning of S. 2(c) of the Arbitration Act, 1940 and also no part of the cause of action has arisen within the jurisdiction of this Court. By such finding or decision the learned Judge of the court of first instance has directed that the awards be returned for being filed in the appropriate court as according to his Lordship this court is not the court within the meaning of S. 2(c) of the Arbitration Act, 1940.
2. The facts constituting the subject-matter of appeals nos. 72-74 are slightly different from the facts constituting the subject matter of appeals nos. 75-77. The first three appeals, namely, appeals nos. 72-74 relate to construction of North Bengal University General Hospital (500 bedded) and the last three appeals nos. 75 to 77 of 1983 relate to the construction of North Bengal University Medical College. For construction of Medical College Hospital three separate written contracts were entered into by and between the appellant, Unit Constraction Co. (P) Ltd. and the respondent. University of North Bengal at Sushrutnagar, Siliguri. In respect of North Bengal University Medical College, similarly, three separate written contracts were entered into by and between the said parties at Sushratnagar. In all the said six contracts the appellant offered to construct the work which was allotted by the respondent after obtaining the approval of the Government. During the continuance of the work relating to the construction of North Bengal University General Hospital the appellant requested the respondent on 14th April, 1974 for enhancement of rates for the balance works with effect from 1st April, 1974 on the ground, inter alia, of rise in prices of materials. The said request for enhancement of rates was thereupon recommended by the respondent for consideration of the State Government. On receipt of said recommendation by the respondent, the Government requested the parties to negotiate and settle a minimum amount acceptable to the appellant. The appellant ultimately agreed to the enhancement of rates, at the rate 26% above for Group ‘A’, 25% above for Group-‘B’ and 30% above for Group-‘C’. The enhancement of said rates was ultimately approved by the Cabinet by its decision no. 5298 dated 3.6.1976
3. The respondent before making final payment in respect of the works done started deducting at the enhanced rate for supply of cement and steel to be supplied by the respondent as per contract. The dispute arose between the parties regarding recovery on account of cement and steel at the enhanced rate.
4. In respect of contracts relating to construction of North Bengal University Medical College at Sushrutnagar the Government requested the Joint Plant Committee to accord priority to allotment of M.S Rods and Steel to the appellant contractor. A dispute however, arose between the parties on the question as to whether the contractor was entitled to claim for the actual price at which they purchased cement and steel from the open market and whether the escalation clause applies to cement and steel in the instant case.
5. All the aforesaid disputes were referred to the arbitration in terms of the arbitration clause contained in the said contracts.
6. On or about 18th May, 1982 the arbitrator made six awards in respect of six references and all such awards were filed in this Court. Due notices under S. 14(2) of the Arbitration Act were given to the respondent and as stated above, the respondent filed six applications for setting aside the said six awards on the grounds contained in the said six applications.
7. Two questions arise for consideration in these appeals, namely, (i) whether the orders appealed against are appealable orders; and (ii) whether this Court has jurisdiction to receive the awards for the purpose of filing the same.
8. Since a preliminary point has been raised by the respondent as to the appealability of these appeals we propose to consider first the question of maintainability of appeals. The learned Counsel for the respondent has submitted that under the provisions of S. 39 of the Arbitration Act the orders of the Court of first instance appealed from are not appealable orders inasmuch as these are not the orders covered by any of the grounds mentioned in S. 39 of the Act.
9. Section 39(1)(vi) provides that an appeal shall lie from an order passed under the Arbitration Act setting aside or refusing to set aside an award. It has been contended by the respondent that an appeal shall lie from orders enumerated in clauses (i) to (vi) of sub-s. (1) of S. 39 of the Arbitration Act, 1940 and against no other. The learned Counsel appealing for the respondent submits that the impugned orders do not come under any of the clauses of S. 39(1) of the Arbitration Act, 1940, and, as such, the orders under appeal are not appealable. It has been further contended by the learned Counsel for the respondent that the Arbitration Act is a complete Code by itself and only the orders which are specifically made appealable under S. 39(1) of the Arbitration Act can only be entertained by the Court of Appeal. It is the submission of the learned Counsel for the respondent that if any order is not made appealable under the provisions of S. 39(1) of the Arbitration Act the Court of Appeal cannot entertain any appeal from an order not being appealable, even if such order is a ‘judgment’ within the meaning of clause 15 of the Letters Patent or such order is appealable under the Code of Civil Procedure.
10. The learned Counsel appearing for the appellant submits that the orders passed by the learned Judge of the court of first instance are in substance the orders refusing to set aside the award made on the applications filed by the respondent under Ss. 30 and 33 of the Arbitration Act for setting aside the impugned awards. Therefore, according to the learned Counsel for the appellant, the said orders dismissing the respondent's said applications for setting aside the awards were really the orders refusing to set aside the impugned awards although made not on merits, but on the ground of lack of jurisdiction and as such, such orders would clearly come within the purview of S. 39(1)(vi) of the Arbitration Act, 1940. The submission of the learned Counsel is that the orders under appeal are appealable under S. 39(1)(vi) of the Arbitration Act, 1940 and are maintainable. The learned Counsel for the appellant cites a decision in the case of Nihal Chand v. Jai Ram Das, reported in AIR 1931 Lahore 673. The Lahore High Court in that case considered the scope of S. 104(d) of the Code of Civil Procedure which is corresponding to S. 39(1)(vi) of the Arbitration Act, 1940. In that case an application for filing an arbitration agreement was rejected on the ground that the Court had no jurisdiction. The order was held to be appealable as rejecting such an application on the ground of want of jurisdiction also falls within the scope of the said section 140(d) of the Code of Civil Procedure corresponding to S. 39(1)(vi) of the Arbitration Act, 1940. The learned Counsel for the appellant submits that rejecting an application to file an agreement not on ground of merits but on the ground of lack of jurisdiction is also a refusal within the meaning and scope of this Section.
11. According to the learned Counsel, in the instant case the applications were made by the respondent for setting aside the awards. Having held that this court has no jurisdiction to entertain the award the learned Judge of the court of the first instance had in effect refused to set aside the award which was the prayer in the application for setting aside the awards made by the respondent. The effect of such orders according to the learned Counsel for the appellant, is really that the court dismissed the respondent's applications for setting aside of the awards on the ground of jurisdiction. Therefore, the learned Counsel for the appellant contends that those orders are really the orders made under S. 39(1)(vi) of the Arbitration Act, 1940 and as such all such orders are appealable under said S. 39(1)(vi) of the Arbitration Act, 1940.
12. The learned Counsel appearing for the respondent submits that the orders under appeals cannot be the order setting aside the awards or refusing to set aside the awards. The learned Counsel for the respondent contends that when the applications for setting aside the awards are allowed then the awards become non est. But in the instant case the effect of the orders passed by the learned Judge of the court of first instance is to keep the awards alive and for that reason the awards were returned for presentation in the proper court.
13. The next contention of the learned Counsel for the respondent is that an award can be set aside only on the grounds mentioned under S. 30 of the Arbitration Act. According to him in the instant case the application for setting aside the award was not even considered as the said applications were simply not entertained by the court of the first instance on the ground of lack of jurisdiction and as such those applications for setting aside the awards were not really decided on merits in the context of the ground mentioned in S. 30 of the Arbitration Act, 1940. Therefore, according to the learned Counsel for the respondent, the question of setting aside the award or refusing to set aside the award does not arise as the said applications ware not entertained by this court on the ground of lack of jurisdiction. The learned Counsel for the respondent also contends that the respondent had to file those applications for setting aside the awards in the court of first instance because the impugned awards were filed in this court and under the provisions of Arbitration Act the respondent had no other option but to file applications for setting aside the impugned awards in the court of first instance. If the respondent did not make any such applications for setting aside the impugned awards then the court of first instance would have passed decrees in terms of the awards filed in this Court. Therefore, in his submission the orders under appeal do not amount to orders refusing to set aside the awards and as such the orders under appeal do not come within the purview of the appealable orders as stipulated in S. 39(1) of the Arbitration Act, 1940.
14. It has been further contended by the learned Counsel for the respondent that the direction of the learned Judge of the court of first instance was that the awards filed by the arbitrator in this Court be returned to the arbitrator for being filed in the proper Court. According to the learned trial Judge this court is not the court within the meaning of 2(c) of the Arbitration Act, 1940 and further no part of the cause of action arose within the jurisdiction of this Court. According to the learned Counsel for the appellant it was really an order made under Order 7 Rule 10 of the Code of Civil Procedure. Therefore, in the submission of the learned Counsel for the respondent, such orders passed by the learned Judge of the court of first instance was really the orders passed under Order 7 Rule 10 of the Civil Procedure Code. The learned Counsel further contends that such orders cannot be said to be the orders passed under the Arbitration Act or such orders are within the purview of S. 39(1) of the Arbitration Act, 1940.
15. The learned Counsel for the appellant contends that assuming that the award can be treated as a plaint and can similarly be returned as a plaint under Order 7 Rule 10 of the Code of Civil Procedure such provisions do not apply in the case of Chartered High Courts under Order 49 Rule 3 of the Code. Therefore, in the submission of the learned Counsel for the appellant there can be no scope for application of Order 7 Rule 10 to the orders passed by the court of first instance and as such the second part of the aforesaid order, namely, the return of the award do not have any effect in law. The learned Counsel for the appellant further contends that the orders refusing to entertain an application of the respondent for setting aside the awards was on the ground of lack of jurisdiction inasmuch as no part of the cause of action arose within the jurisdiction of this Court.
16. The learned Counsel for the appellant submits that in any event, the said orders under appeal were the orders refusing to entertain the applications of the respondent for setting aside the awards on the ground that no part of the cause of action arose within the jurisdiction of this Court. Therefore, according to the learned Counsel for the appellant, it is really a question of jurisdiction on the basis of which the learned Judge of the court of first instance refused to affirm the impugned awards or set aside the same as no part of the cause of action arose within the jurisdiction and as such the said awards could not be filed in this Court. The learned Counsel for the appellant further contends that as the decision relates to the question of jurisdiction it is a ‘judgment’ within the meaning of clause 15 of the Letters Patent.
17. The learned Counsel for the appellant contends that the applications for setting aside the awards involve two stages: (i) entertaining the award caused to have been filed by the arbitrator, and (ii) entertaining and deciding the applications for setting aside of the said awards. In the submission of the learned Counsel for the appellant any order relating to the entertainment of the award will not be an order under the Arbitration Act but will really be the order under clause 12 of the Letter Patent i.e exercising a jurisdiction to entertain the matter, and thereafter, any order made on the application for setting aside of the order either allowing or dismissing the same will be an order under the Arbitration Act. According to the learned Counsel for the appellant, if the Court refuses to entertain the award holding that this Court has no jurisdiction to entertain the award which really amounts to a refusal to exercise jurisdiction under clause 12 of the Letters Patent. This, according to the submission of the learned Counsel for the appellant, is really the question of jurisdiction and it is a ‘judgment’ within the meaning of clause 15 of the Letters Patent.
18. The learned Counsel for the appellant further submits that an order made on any application filed under the Arbitration Act will be an order under this Act and the Court of Appeal can entertain an appeal from such order if such order fails within any of the clauses enumerated in S. 39(2) of the Arbitration Act. The learned Counsel submits that if any order made under the Arbitration Act does not come under any of the clauses of S. 39(1) of the Arbitration Act than any appeal from such order may be maintainable if such order is a ‘judgment’ within the meaning of clause 15 of the Letters Patent.
19. It has been submitted by the learned Counsel for the appellant, that the decision of the learned Judge of the court of first instance that the Court has no jurisdiction to entertain the award was a decision taken at the first stage, in other words, a decision taken under clause 12 of the Letters Patent. As contended by the learned Counsel for the appellant, it has been repeatedly held that a decision on a question of jurisdiction is a ‘judgment’ within the meaning of clause 15 of the Letters Patent and therefore, appealable.
20. The learned Counsel cites a Bench decision of this Court in the case of Tobu Enterprises Pvt. Ltd.… v. Camco Industries Ltd.…., reported in AIR 1984 Calcutta 24. It is a case dealing wish an application under S. 20 of the Arbitration Act in which leave under clause 12 of the Letters Patent has been granted by the trial Court. The question arose whether such leave was necessary to be taken on an application under the Arbitration Act and whether such an order granting such leave was appealable under clause 15 of the Letters Patent. The Division Bench held (i) that the clause 12 of the Letters Patent is attracted in an application under S. 20 of the Arbitration Act, and (ii) an order granting leave is not an order passed under the Arbitration Act as the jurisdiction of the Court under the Arbitration Act commences only after such application is received by the Court on granting leave under clause 12 of the Letters Patent. This Court held that the order granting leave was not an order passed under the Act, i.e the Arbitration Act and in an appropriate case an appeal would lie under clause 15 of the Letters Patent if it answers the test of being a ‘judgment’ within the meaning of clause 15 of the Letters Patent.
21. Relying on the said decision the learned Counsel for the appellant submits that if it is taken in the instant case that an order of the learned Judge of the court of first instance is an order refusing to entertain the award on the ground that no part of the cause of action arose within the jurisdiction of this Court than that order according to him, would really be an order refusing to exercise jurisdiction under clause 12 of the Letters Patent. He further submits that since that is a question of jurisdiction that would be a ‘judgment’ within the meaning of clause 15 of the Letters Patent.
22. The learned Counsel for the appellant also relies on a decision of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kama reported in AIR 1981 SC 1786. It has been held in that case inter alia, that if the decision affects the question of jurisdiction such an order will constitute a ‘judgment’ within the meaning of clause 15 of the Letters Patent. It has also been observed in that case that any order deciding any preliminary objection as to the maintainability of the matter even at an interlocutory stage may be treated as a ‘judgment’ under clause 15 of the Letters Patent. Therefore, according to the submission of the learned Counsel for the appellant, it cannot be disputed that the orders passed by the learned Judge of the court of first instance refusing to entertain the application on the ground of jurisdiction, are the orders affecting the question of jurisdiction and as such are ‘judgments’ within the meaning of clause 15 of the Letters Patent. It is the consistent views of this Court and also the Supreme Court as contended by the learned counsel for the appellant that such a question is a ‘judgment’ within the meaning of clause 15 of the Letters Patent.
23. The learned Counsel for the appellant also invites our attention to paragraphs 33 and 34 of the said judgment, reported in AIR 1981 SC 1786 (supra). The Supreme Court held that even if an order is not appealable under S. 39 of the Arbitration Act it can be appealable under S. 15 of the Letters Patent provided that the test that it is ‘judgment’ is satisfied. The Supreme Court observed in that case “it cannot be contended by any show of force………………that the provision of the Arbitration Act giving a right of appeal to a litigant from the order of a trial Judge to the Division Bench does not fetter or override the provisions of the Letters Patent.”
24. The learned Counsel appearing for the respondent argues that the argument of the learned Counsel for the appellant that the orders under appeal may be treated as ‘judgment’ within the meaning of clause 15 of the Letters Patent is not sustainable. He submits that the Supreme Court in the case of Union of India v. Mohindru Supply Co. reported in AIR 1962 SC at page 256 categorically laid down that no appeal under clause 15 of the Letters Patent is maintainable against the orders passed in an arbitration proceeding after the introduction of the Arbitration Act, 1940 which is a self contained Act. In his submission, as the similar question as in this case was directly involved in the case reported in AIR 1962 SC page 256 this Court should accept the ratio laid down in that case.
25. The learned Counsel for the respondent also submits that the point for consideration in the case reported in AIR 1981 SC 1786 (supra) was whether an interlocutory order passed in a suit filed in the Original Side of the High Court, is appealable or not. Further point for consideration was in that case whether the provisions of the Code of Civil Procedure apply in a suit filed in the High Court in spite of the provisions of the Letters Patent. In his submission the Supreme Court held in that case that the interlocutory order can be judgment if the order finally decides the rights of the parties with respect to any matter and whenever the question of jurisdiction, limitation etc. is decided by a High Court in a suit filed in the High Court, be it at interlocutory stage or a final stage the decision is a ‘judgment’. It has been further held by the Supreme Court, according to the learned Counsel for the respondent, that the provisions of the Code of Civil Procedure run parallel with the provisions of the Letters Patent and the provisions of the Code of Civil Procedure and those of Letters Patent are not conflicting but are supplementary. It is also the submission of the learned Counsel for the respondent that the observation of the Supreme Court in paragraph 34 of the report of the case, reported in AIR 1981 SC 1786 (supra) is by way of illustration. The learned Counsel further submits that in view of the decision of the Supreme Court itself reported in AIR 1962 SC page 256 (supra) which according to him, is a decision by a larger Bench, the aforesaid later decision or the Supreme Court reported in AIR 1981 SC 1786 (supra) has no effect or force. It is also the submission of the learned Counsel for respondent that the later case reported in AIR 1982 SC 1786 (supra) considered the earlier decision reported in AIR 1962 SC 256 and the observations made in paragraphs 33 and 34 of the report (AIR 1981 SC 1786) did not disturb the findings or decisions of the Supreme Court in the earlier decision reported in AIR 1962 SC 256 (supra). He further submits that the question whether the Letters Patent has any application to arbitration proceedings was not before the Supreme Court in the case reported in AIR 1962 SC 186 (supra). Therefore, this Court should accept the principles laid down in AIR 1962 SC 256 and should hold that the instant order under appeal should be tested not in the context of Letters Patent but in the context of Arbitration Act and if such orders are not appealable under Arbitration Act then this Court should not entertain the appeals from such orders.
26. The learned Counsel for the respondent also submits that the order returning the award to be filed in a proper Court is an order under Order 7 Rule 10 of the Code and such Order 7 Rule 10 of the Code is attracted to the Arbitration Act under the provisions of S. 41(a) of the Arbitration Act. Therefore, it is an order under S. 41 of the Arbitration Act and no appeal lies under S. 39 of the Arbitration Act from any order made under S. 41 of the Arbitration Act. To that the learned Counsel for the appellant, submits that it has been held by the Supreme Court in the case of R.M Kamaluddin Ansari & Co. v. Union of India, reported in AIR 1984 SC 29 that S. 41(a) of the Arbitration Act does not attract the entire Civil Procedure Code but only the procedural provisions therein. According to his submission, only the procedural provisions of this Code such as preparation of petitions, filing of petitions, manner in which affidavits are to be affirmed etc. are the only provisions which are attracted by S. 41 of the Arbitration Act. He submits that it has been contended before the Supreme Court in that case that the provisions of Order 39 of the Code of Civil Procedure dealing with injunctions are equally attracted and the powers of the Court to pass injunction is not limited to S. 41(b) read with second schedule to the Arbitration Act. The learned Counsel submits that this contention was rejected by the Supreme Court by making the observation that only procedural provisions of the Code are attracted under S. 41(a) of the Arbitration Act.
27. In reference to the argument of the learned Counsel for the respondent that in any event, this order may be treated as an order under S. 41(a) of the Arbitration Act and any order made thereunder is not appealable, the learned Counsel cites a decision of this Court in the case of State of West Bengal v. Anil Kumar Bhurya, 86 CWN 856.
28. We now proceed to consider the respective submissions of the Counsel on the question of appealability. An appeal can be preferred from an order made under the Arbitration Act if such order comes under any of the clauses of sub-s. (1) of the S. 39 of the Arbitration Act. Section 39 of the Arbitration Act, 1940 is set out below:—
“39(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order:
An order—
(i) superseding an arbitration;
(ii) on an award stated in the form of a special case;
(iii) modifying or correcting an award;
(iv) filing or refusing to file an arbitration agreement;
(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;
(vi) setting aside or refusing to set aside an award;
Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court.
(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall effect or take away any right to appeal in the Supreme Court”
29. For the purpose of this appeal we are concerned with clause (vi) of sub-s. (1) of S. 39 of the Arbitration Act. Under clause (vi) of sub-s. (1) of S. 39 of the Arbitration Act, an appeal can be preferred from an order setting aside or refusing to set aside an award. Let us now see whether the orders under appeal are orders setting aside or refusing to set aside an award. The orders under appeal are in identical terms and the relevant portion of the orders are to the effect that this Court being of opinion that the High Court at Calcutta is not the Court within the meaning of S. 2(c) of the Arbitration Act, 1940 and according to this Court no part of the cause of action arose within the jurisdiction of this Court, it is ordered that the awards filed by the arbitrator herein be returned to him for being filed in a proper court and it is made clear that this Court is not entering into the merits of the application or as to the question of the validity of the reference.
30. In our opinion this order cannot be said to be an order setting aside or refusing to set aside the award. This order in our view is the order refusing to entertain an award, and consequently a direction to file the award in proper court having jurisdiction in the matter to which the reference relates. The effect of this order is that it is neither an order setting aside nor refusing to set aside the award. If it is construed as an order setting aside the award, than the impugned award loses its existence and there would not have been any necessity of directing the award to be filed in proper Court. Again, if it is taken as an order refusing to ser aside the award, then the consequential step for the Court is to pass judgment in terms of the award. But there is no such scope in view of the nature of the orders appealed from. The order directs return of the award to be filed in proper Court ts in the opinion of the Court of first instance the Court cannot entertain the award on the ground of lack of jurisdiction.
31. The question may, however, arise as to what would be the effect of an order by which an application for setting aside of the award is not entertained on the ground of limitation. There the award as filed in the Court remains, and the Court shall pass a judgment in terms of the award.
32. Therefore, it cannot be said as contended by the learned Counsel for the appellant that the orders under appeal are in the nature of orders refusing to set aside the award and as such are orders appealable under S. 39 of the Arbitration Act, 1940.
33. Now let us consider whether these orders under appeal are ‘judgment’ within the meaning of clause 15 of the Letters Patent. As we have indicated earlier that the applications for setting aside the award filed by the respondent were not entertained by the court of first instance as in the opinion of the Court it was not the Court within the meaning of S. 2(c) of the Arbitration Act, 1940 as no part of the cause of action arose within the jurisdiction of the Court. As such the awards were directed to be returned for being filed in a proper Court. Are these orders under appeal ‘judgments’ within the meaning of clause 15 of the Letters Patent?
34. It has been a consistent view taken by the various High Courts, and the Supreme Court that a judgment within the mining of clause 15 of the Letters Patent would have to satisfy two tests. First, the judgment must be a final pronouncement which puts an end to the proceedings as far as the Court dealing with it is concerned. Secondly, the judgment must involve the determination of some right or liability though it may not be necessary that there must be a decision on merits. Now let us examine the effect of the order in the light of the above test. The Court of first instance refused or declined to entertain the applications for setting aside the awards on the ground that court had no jurisdiction to entertain the awards and/or the applications as no part of the cause of action arose within the jurisdiction of this Court. Therefore, according to the said test it is a final pronouncement which puts an end to the proceedings as far as the court dealing with it is concerned. In the instant case so far as this court is concerned proceedings are put to an end inasmuch as the Court cannot deal with the application for setting the award, nor in the event of refusing to set aside the award can the Court pass any judgment and/or decree in terms of the award. It is also, in our view, a determination of some right though such determination is not by way of a decision on merits of the case. It is a determination of right because the decision of the Court of first instance has the effect of saying that the appellant has no right to have judgment in terms of the award filed in this Court, or in any event such determination and/or decision affects the question of jurisdiction. Therefore, such an order is a ‘judgment’ within the meaning of clause 15 of the Letters Patent. We have therefore, no hesitation in coming to the conclusion that the orders appealed against are ‘judgments’ within the meaning of clause 15 of the Letters Patent. This view of ours is fully supported by the recent decision of the Supreme Court on the point in the case of Babulal Khemji v. Javaben AIR 1981 Supreme Court 1786 (supra).
35. It has been contended by the learned Counsel for the respondent that the Arbitration Act is complete Code by itself, and unless an order is appealable under S. 39 of the Arbitration Act this Court cannot entertain any appeal from the orders appealed from the orders appealed from. In his submission the Letters Patent cannot override the Arbitration Act or cannot prevail over it. This point has also been answered by the Supreme Court in Babulal Khimji's case (supra). The Supreme Court observed that it could not be contended by any show of force that the provisions of the Arbitration Act giving a right of appeal to a litigant from the order of a trial Judge to the Division Bench in any way fetter or override the provisions of the Letters Patent.
36. It is further contended by the learned Counsel for the respondent that the case of Union Of India v. Mohindra Supply Co. , AIR 1962 SC 256 is an authority for the proposition that clause 15 of the Letters Patent is excluded in view of the provisions of S. 39 of the Arbitration Act. The learned Counsel for the respondent submits that we should accept this decision of Supreme Court in preference to the decision of Babulal Khimji's case as the earlier decision is of a larger Bench. The case of Union Of India v. Mohindra Supply Co. was a case from Punjab which held that no second appeal would lie under clause 10 of the Letters Patent (corresponding to clause 15 of the Letters Patent) in view of S. 39(2) of the Arbitration Act. It may be noticed that this decision was limited in its application to second appeal in view of specific interdict contained in S. 39(2) of the Arbitration Act. In our view, the decision in this case rested solely within the scope of S. 39(2) of the Arbitration Act, 1940.
37. Another contention of the learned Counsel of the respondent is that there is no specific provision of returning. Award for being filed in the proper Court under the provisions of Arbitration Act. Such provision is contained in Order 7 Rule 10 of the Code of Civil Procedure which, in the submission of learned Counsel, is attracted by S. 41(a) of the Arbitration Act and the orders appealed against are orders under S. 41(a) of the Arbitration for which no provision for appeal is contained in S. 9(1) of the Arbitration Act. We do not accept this submission. According to the decision of the Supreme Court in the case of H.M Kamaluddin Ansari v. Union of India, reported in AIR 1984 SC 29, S. 41(a) of the Arbitration Act attracts not the entire Code of Civil Procedure but only the procedural provisions.
38. In the premises, we hold true these appeals are maintainable under clause 15 of the Letters Patent, as the orders under appeal are ‘judgments’ within the meaning of clause 15 of the Letters Patent.
39. Now we come to the other question involved in this appeal as to whether this court has jurisdiction to receive the awards for the purpose of filing the same.
40. The appellant applied for increase of its contractual rates in view of the increase in the cost of materials. The recommendations were made for this purpose by the respondent to the Government of West Bengal. The Government of West Bengal took a cabinet decision at Writers' Buildings, Calcutta and the decision was to enhance the rate to be paid to the appellant. The decision was communicated to the respondent as also the appellant by a Memorandum dated 14th May, 1976. The entire dispute between the parties in Appeal Nos. 72 to 74 is whether the appellant was entitled to the enhanced rate, and the respondent was entitled to deduct the prices of cement and steel supplied by them at the rates prevailing when the original contract was entered into or the rates as prevailing currently.
41. The second ground on which jurisdiction has been attracted is the letter and/or Memo No. Medl/V/8398/3M-26/76 dated 29th December, 1977 extending the period of the contract. This letter has also been issued by the State Government as a decision making authority from Calcutta within the jurisdiction of Original Side of this Court. The question involved in both sets of appeal is the right of recovery of higher rates and higher issue rates during the entire period of execution of the contract. Therefore, the period during which the contract continued is an essential fact and consequently the order by which the period was extended is also an essential fact constituting the cause of action. This letter extending the period apply equally to all the appeals. Further in Appeal No. 75-77 of 1983, where the question involved mainly was payment for escalation on materials supplied by the appellant, with reference to statutory prices, the prices of M.S Rods and Steel as declared by Joint Plant Committee (through which the supplies were received by the appellant) become relevant. The decisions appearing in the documents at page 64 of the paper book in Appeal No. 75 of 1983 are, therefore, essential facts constituting the cause of action.
42. 40A. According to the appellant the whole dispute turned on an interpretation of the Memorandum dated 14th May, 1976, and as to the rights and obligations of the parties in this regard. It is also contended by the appellant that without such a decision of the Government as contained in the said Memorandum it was not possible to enhance the rates and whether the respondent could recover higher issue rates or not was dependent on the purport and meaning of the said decision of the Government of West Bengal as contained in the said Memorandum.
43. 40B. The learned Counsel for the appellant contends that cause of action is constituted by the bundle of facts which are essential to be proved. It is contended further that it is essential to prove the fact of such decision taken by the State Government and the meaning and scope of such decision before the dispute could be resolved. The said Memorandum, therefore, according to the appellant, is an essential fact in the bundle of facts constituting the cause of action. Such decision as contained in the said Memorandum was arrived at the State Secretariat at Writers' Buildings at Calcutta within the original civil jurisdiction of this Court, and the communication of the said decision was nude to the appellant at its office at Calcutta within the original civil jurisdiction of this Court.
44. The learned Counsel for the appellant refers to a Memorandum dated 29th December, 1977 issued by the Government of West Bengal which states that Governor has been pleased to approve the proposal of the North Bengal University and allow extension of time for completion of structual construction of the North Bengal General Hospital including outdoor building upto 30.6.77 The learned Counsel submits that one of the points of dispute is whether the appellant is entitled to be paid at a higher rate during the period of contract. Therefore, according to his submission the period during which the contract continued is an essential fact and the order by which the period was extended is also an essential fact constituting the cause of action. Such approval and order for extension was passed within the jurisdiction of this Court.
45. It is the contention of the learned Counsel for the appellant that sanctioning of escalation of the rates of materials supplied by the appellant and the sanction to the extension of time of completion of contract constituted variation or alteration of the terms of the contract. Such facts being part of the cause of action in the reference before the arbitrator arose within the original civil jurisdiction of this Court, as all the orders according sanction or approval were issued from West Bengal Secretariat Calcutta within the Original Civil Jurisdiction of this Court.
46. In order to obtain an award the claimant appellant will have to establish that the escalation of rates had been made with the approval of the Government in terms of the said Government decision arrived at Calcutta within Original Civil Jurisdiction of this Court, and the appellant is entitled to such higher rates or higher issue rates during the period of the contract which was to be completed on 31.12.76, and later on extended till further as aforesaid. Both the decisions, one approving the recommendation of the respondents for higher rates, and the other extending the period of contracts, were made at Calcutta within the original civil jurisdiction of this Court. Therefore, it would appear that the said memorandum conveying the decision of the Government to the respondent was made at Calcutta and issued from Calcutta within the Original Civil Jurisdiction of this Court. Further, the said decision of the Government was communicated to the claimant at its office at Calcutta within the Original Civil Jurisdiction of this Court.
47. As it is indicated above the cause of action means a bundle of facts which would have to be established in order to get relief in the proceedings and the fact of the said Government decision made at Calcutta within the Original Civil Jurisdiction of this Court is undoubtadly a fact in such bundle and as such, a part of the cause of action in the reference before the learned Arbitrator. The said fact along with other, facts constituted the cause of action on the basis of which the raference was made to the Arbitrator. Therefore, we have no hesitation to hold that such Government decision was a part of cause of action or in other words the part of the subject matter of the reference before the Arbitrator. It is well settled law that award may be filed in any Court having jurisdiction in the matter to which the reference relates. In this Instant case a part of the cause of action, as indicated above arose within the Original Civil Jurisdiction of this Court and this court exercising Original Civil Jurisdiction is competent to entertain the awards in question.
48. It is contended on behalf of the respondent that the cause of action in a suit based on contract can arise at the place where the contract was concluded, or the place where the contract was executed or where the prices were payable. The learned Counsel for the respondent in support of the said contention cited a Bench decision of this Court, to which one of us was a party, in the case of Sreenivasava Pulverising Industries v. Jai Glass and Chemicals (P) Ltd., reported in 85 CWN 1070. In this case a suit for recovery of damages for breach of contract was filed in Calcutta on the basis of a part of cause of action as the prices were payable at Calcutta. In this case it was contended that where the contract was executed outside the jurisdiction, goods were to be delivered outside, the Court in Calcutta would not have jurisdiction merely because had the contract not been breached, the prices for the goods would have been payable at Calcutta. It was held by this Court that in a contract of this nature performance of contract consists not only of delivery of the goods but also of the payment of the pries. Therefore, cause of action for a suit on breach of such a contract would arise not only where the goods were to be delivered but also where the price would be payable on such delivery. The Court in this case was not called upon to consider a situation where a contract was varied by alteration of rates. The fact of variation, how such variation was made and by what decision must necessarily be essential facts constituting the cause of action. In our view, this Bench decision has no application to the present case.
49. It is true that there is no clear definition of ‘cause of action’. The cause of action has been held by various Courts to mean other facts which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have right to traverse. In the present reference the claimant in order to obtain relief in the arbitration proceedings was required to prove that the escalation of rates was approved and/or agreed to by the Government in terms of the said. Memorandum issued from the Writers' Buildings at Calcutta within the Original Civil Jurisdiction of this Court. Similarly, the defendant that is the respondent here in this appeal would have a right to traverse such fact.
50. We, therefore, hold that a part of cause of action arose within the Original Civil Jurisdiction of this Court and as such, this Court has jurisdiction to receive the awards for the purpose of filing of the same. We also hold that this Court has jurisdiction to entertain and decide the said applications for setting aside the awards. In our opinion, the learned trial Judge was not correct in holding that no part of the cause of action arose within the jurisdiction of this Court.
51. All the six appeals, therefore, succeed and are hereby allowed. The orders all dated 20th January, 1983 of the Court of first instance from which the present appeals have been preferred are, therefore set aside.
52. The case is sent back to the trial Court with the direction that the trial Court will now proceed to hear the respondents' applications under S. 30 read with S. 33 of the Arbitration Act for setting aside the impugned awards and dispose of the same on merits. Each party to bear and pay its own costs.
53. R.N Pyne, J.:— I agree.
Appeal allowed; case sent back to trial court.Arbitration Act, 1940
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