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2024 (12) TMI 877 - HC - Indian LawsMaintainability of appeals u/s 13, including Section 13 (1A) of the Commercial Courts Act, 2015 - Commercial Court within the meaning of Section 13 read with Section 2(b) of the CCA - Application of the doctrine of res judicata. Res judicata or principles analogous to res judicata - HELD THAT - This doctrine finds expression in Section 11 of CPC, but it is well settled that Section 11 of CPC is not the foundation of this doctrine but is merely the statutory recognition thereof. Accordingly, Section 11 of CPC is not exhaustive of the general doctrine of res judicata. This doctrine is founded on equity, justice and good conscience - the provision in Section 11 of CPC or the doctrine of res judicata says that once a matter is finally heard and decided between two parties, such a matter will not be allowed to be re-agitated amongst the same parties or the parties claiming under them. The Hon'ble Supreme Court in Vijayabai and others vs. Shriram Tukaram and others 1998 (11) TMI 703 - SUPREME COURT has held that the principle of res judicata would apply not only to two suits or proceedings but also to two different stages in the same suit or proceedings. The Court held that even if the strict parameters of Section 11 of CPC are not attracted, still, principles analogous to res judicata or estoppel would still apply. The matter of maintainability of appeals against judgments and orders made in proceedings for execution or enforcement of arbitral awards was directly and substantially in issue in the former proceedings, which came to be disposed of by judgment and order dated 9 August 2019. It is precisely the very same issue that is directly and substantially in issue in the present proceedings. Therefore, all the parameters necessary to attract the doctrine of res judicata, or in any event, the principles analogous to res judicata, are fully satisfied in these matters - the judgment and order dated 9 August 2019 in the former proceedings is sufficient to uphold the first objection to the maintainability of these appeals raised by and on behalf of the respondents. Law of the case doctrine - HELD THAT - To put this doctrine in perspective, the interpretative intricacies in understanding a precedent differ from those involved in understanding the law of the case. A precedent binds to the extent the holding accords with the facts on hand. On the other hand, the law of the case fetters a later Bench in the same case from taking a contrary stand to that taken earlier by the previous Bench. Of course, this constraint flows down to the lower judicial echelons or applies to coordinate Benches, but not appellate or higher fora - these appeals are not maintainable given the judgment and order dated 9 August 2019 in Commercial Appeal (L) No. 109 of 2019 and connected appeals. Independent of Res Judicata, whether these appeals are maintainable? - HELD THAT - Even independent of the principle of res judicata, we are satisfied that these appeals are not maintainable simply because the proceedings for execution or enforcement of the arbitral award were not proceedings under the CPC or the CCA, but they were proceedings under the ACA. Accordingly, the issue of appealability of orders, whether interim or final, made in such proceedings for execution or enforcement of arbitral awards would have to be determined by the provisions of the ACA in general and Section 37 of the ACA in these particular cases. Section 35 of the Arbitration and Conciliation Act imparts finality to arbitral awards. This section provides that subject to this Part, i.e. Part I, an arbitral award shall be final and binding on the parties and persons claiming under them, respectively. Section 36 of the Arbitration and Conciliation Act provides that where the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the Court. Adopting the mechanism under the CPC does not convert the execution or enforcement proceedings under Section 36 of the Arbitration Act into proceedings under Order XXI of the CPC. Therefore, even if Respondents 1 and 2 may have referred to the provisions of Order XXI of the CPC or Rule 313 of the Bombay High Court (Original Side) Rules, that can make no difference to the character of the enforcement proceedings under Section 36 of the Arbitration Act. Jet airways 2011 (10) TMI 783 - BOMBAY HIGH COURT precedent - HELD THAT - The Coordinate Bench in Jet Airways (supra), by adverting to several binding precedents emanating from the Hon ble Supreme Court, held that the execution/enforcement proceedings were proceedings under Section 36 of the Arbitration Act and not proceedings for execution under Section 47 or Order XXI of the CPC. The Coordinate Bench also held that the appealability issue would be governed by Section 37 of the ACA, a special enactment that would prevail over the CPC, which was only a general enactment. Similarly, the Coordinate Bench also held that clause 15 of the Letters Patent was also impliedly excluded by the special provisions of the ACA. Finally, the Coordinate Bench held that the Supreme Court s decision in Fuerst Day Lawson Limited 2011 (7) TMI 1275 - SUPREME COURT conclusively determined the question of maintainability and the observations in paragraphs 70 to 73 constitute a binding precedent even in respect of maintainability of an appeal against an order passed in proceedings arising out of a domestic award under Part I of the ACA. These appeals cannot be held to be maintainable by reference to sections 13 or 13 (1A) of the CCA read with the provisions in Order XVIII of the CPC. The appellants are determined not to pay the first and second Respondents under the consent award dated 14 July 2014 and the consent order dated 22 February 2018. Considerable judicial time has been spent dealing with almost identical arguments on the issue of maintainability in Commercial Appeal (L) No. 109 of 2019 and connected matters and the present appeals. This is at the cost of several non-commercial matters, which cry for scarce judicial time and commercial matters, which must be expedited given the legislative intent of both the Commercial Courts Act and the Arbitration Act. The appellants are directed to pay consolidated costs of Rs. 20,00,000/-, out of which Rs 10,00,000/- to be shared by the first and second Respondents, and the balance Rs. 10,00,000/- by the Maharashtra State Legal Services Authority. These costs must be paid within four weeks from today, and proof of payment must be filed in the Registry - Appeal dismissed as not maintainable.
Issues Involved:
1. Maintainability of the appeals. 2. Application of the doctrine of res judicata. 3. Interpretation of the Arbitration and Conciliation Act, 1996 (ACA) versus the Code of Civil Procedure (CPC) and the Commercial Courts Act, 2015 (CCA). 4. Applicability of Section 13 and Section 13(1A) of the CCA. 5. Request for liberty to modify/revise the consent order. Detailed Analysis: 1. Maintainability of the Appeals: The primary issue in these appeals is their maintainability. The appellants argued that the impugned judgment and order dated 22 February 2018, made by a Commercial Court, should be appealable under Section 13 of the CCA. They contended that the central provision of Section 13(1A) allows for an appeal against a "judgment" even if it does not constitute an order enumerated under Order XLIII of the CPC or Section 37 of the ACA. The respondents countered that the appeals are not maintainable as the issue of maintainability was already decided against the appellants in a previous judgment dated 9 August 2019, which operates as res judicata. 2. Application of the Doctrine of Res Judicata: The doctrine of res judicata was central to the respondents' argument. They asserted that the judgment and order dated 9 August 2019, which dismissed similar appeals as not maintainable, should apply here, precluding the appellants from re-litigating the same issue. The court agreed, noting that the principle of res judicata applies not only to separate suits but also to different stages of the same proceedings. The court found that all the conditions for res judicata were met, including the finality of the previous judgment and the identity of the parties and issues involved. 3. Interpretation of the ACA versus CPC and CCA: The court emphasized that the proceedings for the execution or enforcement of the arbitral award were governed by the ACA, not the CPC or the CCA. The ACA is a self-contained code, and the appealability of orders made under it is determined by its provisions, particularly Section 37. The court rejected the appellants' argument that the execution proceedings were under Order XXI of the CPC, clarifying that the ACA adopts the mechanism of execution from the CPC but does not convert the proceedings into those under the CPC. 4. Applicability of Section 13 and Section 13(1A) of the CCA: The court held that the arguments based on Sections 13 and 13(1A) of the CCA were irrelevant once it was established that the maintainability of the appeals had to be adjudged by the ACA. The court reiterated that the ACA's provisions determine the issue of appealability, and the CCA or CPC can only be referenced to determine the forum of appeal, not the substantive maintainability. 5. Request for Liberty to Modify/Revise the Consent Order: The appellants sought liberty to approach the court to modify or revise the consent order on the grounds that the compromise terms were contrary to law. This request was based on Order XLIII Rule 1A(2) of the CPC and relevant Supreme Court decisions. However, the court denied this request, stating that the enforcement proceedings were not under the CPC, and the cited cases did not apply to proceedings for the enforcement of arbitral awards. Conclusion: The court dismissed the appeals as not maintainable, affirming that the issue of maintainability had been conclusively decided in the previous judgment dated 9 August 2019, which operates as res judicata. The court also emphasized that the ACA governs the proceedings, making the appeals unsustainable under the CPC or CCA. The appellants were directed to pay costs for the judicial time expended on these proceedings.
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