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TMI Blog2002 (4) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... s in Company Petition No. 76 of 1999) to arbitration. On the aforesaid request, the CLB granted the appellant time up to 4th September, 1999 to move an application under section 8 of the Arbitration Act, 1996. No such application was, however, filed within the allotted time. After all efforts made by the parties to settle their dispute amicably during the subsistence of proceedings before the CLB proved futile, the appellants, on 16th May, 2000, presented an application under section 8 of the Arbitration Act, 1996, before the CLB. It is not necessary for the purposes of this order to refer to any further details of the proceedings before the CLB. 2. The CLB Principal Bench, New Delhi, while deciding the application moved by the appellants (herein) under section 8 of the Arbitration Act, 1996, vide its order dated 8th December, 2000, arrived at two conclusions; firstly, that there was no binding arbitration agreement between the parties in the instant case satisfying the provisions of section 7 of the Arbitration Act, 1996; and, secondly, that reference under section 8 of the Arbitration Act, 1996, can be sought by a party only if it seeks reference before submitting its first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated, the contention of the learned counsel for the appellants is that for an answer to the issue of jurisdiction, reference must be made to the provisions of the Companies Act, 1956, whereunder a remedy of appeal against an order passed by the CLB stands provided under section 10F of the Companies Act, 1956. The contention of the learned counsel for the respondents, on the other hand, is that the answer to the controversy in respect of the issue of jurisdiction must emerge from the provisions of the Arbitration Act, 1996, which exclude the remedy of appeal from an order passed under section 8 of the Arbitration Act, 1996. Our first endeavour, therefore, is to determine which of the two statutes is applicable to determine the maintainability of the instant appeal. 6. Mr. A.S. Chandhok, learned senior advocate representing the appellants (herein), seriously controverted the pleas advanced by the learned counsel for the respondents, that for determining the maintainability of the instant appeal, reference must be made to the provisions of the Arbitration Act, 1996. 7. It is first submitted by learned counsel that the impugned order dated 8th December, 2000 Vijay Kumar Chopra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the substantive law must be looked for elsewhere. In our judgment, the substantive law, the foundation for specific relief provided for in section 27( b ), Specific Relief Act, is to be found in para 2 of section 40, Transfer of Property Act..." (P. 426) Reliance has also been placed on India Hosiery Works v. Bharat Woollen Mills Ltd. AIR 1953 Cal. 488 wherein the court observed as under: "The Arbitration Act does not in fact purport of its own force to restrict the contractual rights of parties, but only gives effect to restrictions which they may choose to impose on themselves as regards the forum to which their disputes shall be taken." In the same context, reference was also made to the decision rendered by the Apex Court in K. Sasidharan v. Kerala State Film Development Corpn. [1994] 4 SCC 135 and the following observations made by the Apex Court were brought to the notice of this court: "The arbitration agreement is collateral to the substantial stipulation of the contract. It is merely procedural and ancillary to the contract and it is a mode of settling the disputes, though the agreement to do so is itself subject to the discretion of the court. Arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provisions of the Arbitration Act, 1996, then certainly, the remedy must be searched for, from within the provisions of the Arbitration Act, 1996. In such an eventuality, the contention advanced on behalf of the appellants would not merit acceptance. 9. Undoubtedly, when the petition was filed by the respondents (herein) before the CLB, the CLB was exercising jurisdiction under the provisions of sections 397 and 398 of the Companies Act, 1956. However, when the appellants (herein) moved an application under section 8 of the Arbitration Act, 1996 before the CLB, the CLB while deciding the said application acted in its capacity as judicial authority under section 8 of the Arbitration Act, 1996. There can be no doubt that the impugned order determines rights flowing out of the provisions of the Arbitration Act, 1996 and not the provisions of the Companies Act, 1956. Since the CLB did not adjudicate the dispute between the parties under sections 397 and 398 of the Companies Act, 1956 (which was really the subject-matter of Company Petition No. 76 of 1999) through the order impugned before us it is not possible for us to accept the contention advanced on behalf of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid provisions vested in the Debt Recovery Tribunal jurisdiction to decide applications of banks and financial institutions for recovery of debts due to them and further that the jurisdiction of the Company Court to proceed with or to examine issues which were vested with the Debts Recovery Tribunal stood excluded. In the aforesaid case, the Apex Court had interpreted sections 17, 18 and 34 of RDB Act. It was on the basis of the aforesaid provisions that the jurisdiction of the Company Court under the provisions of the Companies Act, 1956 was held to be excluded. It is, therefore, necessary to extract hereunder the aforesaid provisions: "17. Jurisdiction, powers and authority of Tribunals. (1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions. (2) An Appellate Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain appeal against any order made, or deemed to have been made, by a Tribunal under this Act. 18. Bar of jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k s case ( supra ), learned counsel for the appellants has drawn the attention of this court to the following observations made therein: "39. There can be a situation in law where the same statute is treated as a special statute vis-a-vis one legislation and again as a general statute vis-a-vis yet another legislation. Such situation do arise as held in Life Insurance Corporation of India v. D.J. Bahadur AIR 1980 SC 2181. It was there observed: "...for certain cases, an Act may be general and for certain other purposes, it may be special and the court cannot blur a distinction when dealing with the finer points of law..." (p. 426) 11.2 Various illustrations in this behalf as noticed in the aforesaid judgment were also brought to our notice. Insofar as the present case is concerned, it is asserted by the learned counsel for the respondents that the issue under controversy relates to arbitration and, therefore, the Arbitration Act, 1996 can alone be described as the special Act when compared with the Companies Act, 1956. 11.3 In view of the law laid down by the Apex Court in the aforesaid judgment, it is, therefore, sought to be concluded that, in such a situat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point of time, viz., the Companies Act, 1956, the former would have an overriding effect. 12. We find no substance in the aforesaid contention of the learned counsel for the respondents. In our view, the judgment rendered in Allahabad Bank s case ( supra ), caters to a situation where two different statutory provisions legislate in respect of a common issue. The aforesaid judgment resolves conflicts in the provisions contained in two different statutes on the same subject-matter. It is not understandable how the aforesaid proposition can be applied to the present controversy. Neither the subject-matter of the two statutes under reference is the same, nor is there any apparent over-lapping or conflict between them, accordingly, in the absence of any conflict between the two provisions, in our view, the judgment rendered in Allahabad Bank s case ( supra ), is not relevant to resolve the controversy before us. 13. In the same strain and in order to arrive at the same conclusion, namely, that for the determination of the remedy of appeal in the present case, reference must be made to the provisions of the Companies Act, 1956, and not to the Arbitration Act, 1996, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms, confer a right of appeal." 14.2 It is submitted that the legal position of the rule enunciated by the House of Lords as well as the Privy Council noticed above find affirmation in the decision rendered by the Supreme Court in National Sewing Thread Co. Ltd. v. James Chadwick Bros. Ltd. AIR 1953 SC 357 wherein (after placing reliance on the aforesaid judgments), the Apex Court observed: "Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76 of the Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the same conclusion can be reached by the application of another well-known principle, namely, that if a Court is constituted by law and matters go before it under a special law, then that Court can also exercise various other general powers attached to the Court by other statutes. In National Sewing Thread Co. Ltd. v. James Chadwick Bros. Ltd. AIR 1953 SC 357, it was held by this Court that once a matter under the Trade Marks Act, 1940, comes before the High Court, the powers available to the High Court under Letters Patent can also be exercised by the High Court to correct errors in orders passed by the learned Single Judges of that Court. The same principle, it is contended, will apply to quasi-judicial Tribunals also. Once the revision goes to the Board under section 15 of the 1958 Act, the Board can, it is contended, exercise its review powers under the 1951 Act. This submission, in our view, is correct and is required to be accepted as an additional ground to support the review powers of the Board." (p. 3073) 15. The question to be determined by us, therefore, is whether the appellate remedy provided under section 10F of the Companies Act, 1956, would get attach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, whether a legislative enactment could override the constitutional power of the High Court. In the instant appeal, the appellants are seeking to invoke section 10F of the Companies Act, 1956 in order to substantiate their plea in respect of the legality of appellant jurisdiction said to be vested in this court against the impugned order passed by the CLB under section 10F of the Companies Act, 1956, and not the constitutional authority vested in this court under article 226 of the Constitution of India. It would be pertinent to notice that despite suggestions of the counsel representing the respondents to the appellants during the proceedings before us, the appellants did not make a prayer, that the instant appeal be treated as a writ petition. Therefore, while deciding the issue of jurisdiction in the present case, we are certainly not dealing with the constitutional authority vested in this court to examine the validity of an order passed by a judicial authority while deciding a claim under section 8 of the Arbitration Act, 1996. Since the parameters of the issue decided in Vanita M. Khanolkar s case ( supra ), were clearly different from the issue before us in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid provision is being reproduced hereunder: "10E. (1A) The CLB shall exercise and discharge such powers and functions as may be conferred on it, by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law." On the basis of section 10E(1A) of the Companies Act, 1956, it is submitted that the CLB has been vested with the authority under the Companies Act, 1956 itself to discharge powers/functions conferred on it by any other law. It is the contention of the appellants and rightly so, that the authority to decide an application under section 8 of the Arbitration Act, 1996, flows jointly from the provisions of section 10E(1A) of the Companies Act, 1956, and section 8 of the Arbitration Act, 1996. On the basis of the aforesaid contention, it is sought to be concluded that the order passed in exercise of such authority must be deemed to be an order passed on the basis of jurisdiction vested in the CLB by section 10E(1A) of the Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Government, by notification in the Official Gazette under the provisions of this Act or that other law. The submission tried to be made is that the said provision only gives power to the Company Law Board of exercising and discharging the powers and functions as may be conferred on it by or under the Companies Act or any other law, but that would not mean that the decision given by the Company Law Board under any other law could be appealed against under section 10F of the Companies Act. According to Shri Kapadia appearing for the respondents, if the impugned decision is under the Companies Act, then an appeal would lie under section 10F, but if the impugned decision is under any other law, that law must provide for an appeal and, in the present case, admittedly, the decision is under the Securities Contracts (Regulation) Act, 1956, and, under the said law, there is no provision of appeal against the decision of the Company Law Board arrived at under section 22A of the said Act. It is also pointed out that this becomes clear if one looks at the provisions of section 55 of the Monopolies and Restrictive Trade Practices Act, 1969, which provides for an appeal. It is contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be maintainable under section 10F of the Companies Act against the decision of the Company Law Board under the powers conferred on it under any other law also. Hence, I am answering in favour of the appellants on this point." [pp. 423-240 of 15 CLA] 17. It is not possible for us to accept the conclusion drawn above, since neither the contention canvassed on behalf of the respondents was dealt with, nor the principle on the basis of which the court arrived at the conclusion that the appeal was maintainable, was spelt out. In view of the able assistance afforded to us by the learned counsel representing the parties, we have been able to examine the scope of the aforesaid contention closely. The only rule/principle which can be invoked to accept that an appeal would be maintainable against an order passed by the CLB under section 10F is the rule of attachment (already deliberated upon above). The conclusion drawn therein as recorded above, therefore, must follow. 18. The submissions advanced by the learned counsel for the appellants renders it obligatory on our part to consider all the contentions raised on behalf of the respondents based on the provisions of the Arbitration A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a v. Mohindra Supply Co. AIR 1962 SC 256 wherein the historical advancement of the law of arbitration in this country has been traced and, on the basis thereof, the Apex Court concluded that the Arbitration Act, 1940 was a consolidating and amending statute (relevant extracts from the aforesaid judgment have been reproduced in this order at a later stage). Bringing to the notice of this court, the objects and reasons of the Arbitration Act, 1996 extracted above, it is submitted that if the Arbitration Act, 1940 was considered as an exhaustive and comprehensive code by the Apex Court, the same conclusion deserves to be drawn even for the Arbitration Act, 1996, since the instant Act is clearly and unambiguously an effort on the part of the Legislature to amend and further consolidate the Arbitration Act, 1940. 20. In order to substantiate his submission that the Arbitration Act, 1996, is an exclusive code governing the subject of arbitration, learned counsel has invited the attention of this court to section 5 of the Arbitration Act, 1996 which is extracted hereunder: "5. Extent of judicial intervention. Notwithstanding anything contained in any other law for the time bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law or fact) from every order made by a High Court under section 98 or section 99." In the aforesaid judgment, relying on an earlier decision rendered by it in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency [1952] SCR 218, the Apex Court noticed the following observations from N.P. Ponnuswami s case ( supra ): "Obviously, the Act is a self contained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected with election. We have only to look at the Act and the rules made thereunder." And also: "It 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." Thereupon, it referred to the conclusions drawn in Shah Babulal Khimji v. Jayaben D. Kania AIR 1981 SC 1786, wherein it was held: "An appeal no doubt lies under that clause from an order of a Single Judge of the High Court exercising original jurisdiction to the High Court itself irrespective of the fact that the judgment is preliminary or final or that it is one passed at an interlocu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contained not in a separate agreement, but, as in the present case in one of the clauses of the main contract." [para 44 at p. 267 of Comp. LJ] In order to controvert the submission advanced by the learned counsel for the respondents and more particularly, to overcome the judgments relied upon by him, learned counsel or the appellants has referred to the decision rendered in Sundaram Finance Ltd. v. NEPC India Ltd. AIR 1999 SC 565. In order to assert that the provisions of the Arbitration Act, 1940, are substantially distinct and different from the provisions of the Arbitration Act, 1996, and as such, the provisions of the 1940 Act could not be taken into consideration while arriving at a conclusion in the instant case. On the same basis, to is submitted that any judgment rendered by any court in respect of the interpretation of the provisions of the Arbitration Act, 1940 cannot be taken into consideration. It is pointed out that the judgments relied upon by the counsel representing the respondents (herein) are primarily in respect of the provisions of the Arbitration Act, 1940. Attention of this court has been invited to the observations made by the Apex Court in paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject and purpose as also the consideration necessary for dealing with and disposing of the respective application envisaged under section 34 of the 1940 Act and section 8 of the 1996 Act. Section 34 of the 1940 Act provided for filing an application to stay legal proceedings instituted by any party to an arbitration agreement against any other party to such agreement, in derogation of the arbitration clause and attempts for settlement of disputes otherwise than in accordance with the arbitration clause by substantiating the existence of an arbitration clause and the judicial authority concerned may stay such proceedings on being satisfied that there is no sufficient reason as to why the matter should not be referred to for decision in accordance with the arbitration agreement, and that the applicant seeking for stay was at the time when the proceedings were commenced and still remained ready and willing to do all things necessary to the proper conduct of the arbitration. This provision under the 1940 Act had nothing to do with actual reference to the arbitration of the disputes and that was left to be taken care of under sections 8 and 20 of the 1940 Act. In striking contrast to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our mind that the Arbitration Act, 1996 is, indeed, an exhaustive and comprehensive code. Section 5 of the Arbitration Act, 1996 makes the Act exclusive in respect of the subject of domestic arbitration, which has been dealt with in Part I of the said Act, since by a non obstante clause it excludes all judicial authorities from intervention in matters regulated under Part I of the Arbitration Act, 1996. 24. It would however, be pertinent to mention that learned counsel for the appellants has also disputed the conclusions which were sought to be drawn on the basis of section 5 of the Arbitration Act, 1996. In this behalf, it is the contention of the learned counsel for the appellants that section 5 excludes the right only of a judicial authority to intervene in matters covered by Part I of the Arbitration Act, 1996. It is submitted that the expression judicial authority would not include an appellate court. And since an appellate court is separate and distinct from judicial authority referred to in section 5 of the Arbitration Act, 1996, section 5 would not have the effect on ousting the jurisdiction of an appellate court. 25. To understand the scope of the instant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. [2000] Suppl. Arb. LR 618 (Cal.), a Division Bench of the Calcutta High Court has also in paragraph 28 opined that the term judicial authority expressed in section 5 of the Arbitration Act, 1996 refers to a court. 26. There can be no room for any doubt specially in view of the judgments referred to above, that judicial authority is an authority... exercising judicial power of the State... and ...discharging judicial functions... . In the aforesaid view of the matter, it is evident that the term judicial authority will necessarily include court as defined in section 2( e ) of the Arbitration Act, 1996 as well as an appellate court. In such a situation, while interpreting section 5 of the Arbitration Act, 1996, it is evident that the remedy of appeal to an appellate court would be permissible only if so expressed, specially or by necessary implication, in Part I of the Arbitration Act, 1996, and not otherwise. 27. Having arrived at the conclusion that the Arbitration Act, 1996 is an exclusive, exhaustive and comprehensive code and further that the mandate of section 5 of the Arbitration Act, 1996 does not permit any judicial authority which as noticed above wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia v. Mohindra Supply Co. AIR 1962 SC 256. In the aforesaid case, the Apex Court was to determine a controversy arising out of the interpretation of section 9 of the Arbitration Act, 1940. The pointed question was whether a Letters Patent appeal was competent against an order passed by a Single Judge of the High Court, in terms of the provisions of section 39(2) of the Arbitration Act, 1940. The Supreme Court in the aforesaid case examined the validity of the conclusions drawn in the judgment rendered by a Full Bench of this court in Mohindra Supply Co. v. Governor General in Council AIR 1954 Punj. 211, wherein this court had held that a Letters Patent appeal was merely a inter-court appeal and not an appeal to a superior court and was as such not barred under section 39 of the Arbitration Act, 1940. In order to fully understand the conclusion drawn by the Apex Court in the aforesaid case, it is necessary to extract herein section 39 of the Arbitration Act, 1940 which reads as under: "39. Appealable orders. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the right of appeal against orders passed under the Arbitration Act may be exercised only in respect of certain orders. The right to appeal against other orders is expressly taken away. If by the express provision contained in section 39(1), a right to appeal from a judgment which may otherwise be available under the Letters Patent is restricted, there is no ground for holding that clause (2) does not similarly restrict the exercise of appellate power granted by the Letters Patent..." (p. 259) And in para 6: "...The qualifying expression to the court authorised by law to hear appeals from original decrees of the Court passing the order in section 39(1) does not import the concept that the Appellate Court must be distinct and separate from the Court passing the order or the decree. The Legislature has not so enacted and the context does not warrant such an interpretation. The clause merely indicates the forum of appeal. If from the decision of a Court hearing a suit or proceeding an appeal will lie to a judge or more judges of the same Court, by virtue of section 39(1) the appeal will lie from the order passed under the Arbitration Act, if the order is appealable, to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n must be construed without any assumption that it was not intended to alter the law relating to appeals. The words of the statute are plain and explicit and they must be given their full effect and must be interpreted in their natural meaning, uninfluenced by any assumptions derived from the previous state of the law and without any assumption that the Legislature must have intended to leave the existing law unaltered. In our view, the Legislature has made a deliberate departure from the law prevailing before the enactment of Act X of 1940 by codifying the law relating to appeals in section 39." (p. 263) 28. Learned counsel for the respondents has also invited the attention of this court to the similarities of section 39 of the Arbitration Act, 1940 and section 37 of the Arbitration Act, 1996 (both of which have been extracted above). Learned counsel has also relied upon the decision rendered by the Supreme Court in State of West Bengal v. Gaurangalal Chatterjee [1993] 3 SCC 1, on the basis of which he has tried to bridge the gap between the present controversy and the determination of the Apex Court in Mohindra Supply Co. s case ( supra ). While referring to Mohindra S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e final. In this behalf, learned counsel for the appellants has placed reliance on section 11(7) of the Arbitration Act, 1996. The aforesaid provision is being extracted hereunder: "11(7). A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice or the person or institution designated by him is final." 31. Learned counsel for the appellants has required us to read section 8 as well as section 11(7) of the Arbitration Act, 1996, in conjunction with one another. Placing reliance on the words used in sub-section (7) of section 11, it is submitted that finality has been given to an order passed by the Chief Justice (or the person designated by him). In the absence of a similar expression in section 8 of the Arbitration Act, 1996, it is the contention of the learned counsel for the appellants, that it must be assumed that it was not the legislative intent to give finality to the order passed by a judicial authority under section 8 of the Arbitration Act, 1996. It is further argued that there was no difficulty at all for the Legislature to have recorded a similar finality in respect of an order passed by a judicial authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not be allowed to do so. The role of institutions in promoting and organising arbitration has been recognised. The power to nominate arbitrators has been given to the Chief Justice or to an institution or person designated by him... Under the new law, unless the agreement provides otherwise, the arbitrators are required to give reasons for the award. The award itself has now been vested with the status of a decree, inasmuch as the award itself is made executable as a decree and it will no longer be necessary to apply to the court for a decree in terms of the award. All these aim at achieving the sole object to resolve the dispute as expeditiously as possible with the minimum intervention of a court of law so that the trade and commerce is not affected on account of litigations before a court. 7. The statement of Objects and Reasons of the Act clearly enunciates that the main objective of the legislation was to minimise the supervisory role of courts in the arbitral process... 8. Conferment of such power on the arbitrator under the 1996 Act indicates the intention of the Legislature and its anxiety to see that the arbitral process is set in motion. This being the legislativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of refusal is passed under section 11(6), it could be remedied by issuance of a mandamus. We are persuaded to accept the second alternative inasmuch as in such an event, there would not be inordinate delay in setting the arbitral process in motion..." [pp. 256-59 of 2000 CLA-BL-Supp.] 32.1 Reliance was also placed on the decision rendered by the Apex Court Konkan Railway Corpn. Ltd. v. Rani Construction (P.) Ltd. 2002 JT (1) SC 587. It is not necessary to extract the conclusion drawn by the Apex Court in the aforesaid judgment, in view of the fact that the view earlier expressed in Konkan Railway Corpn. Ltd. ( supra ) was endorsed by the Supreme Court in the instant case by a Constitution Bench. 33. We have deliberated on the effect of section 11(7) of the Arbitration Act, 1996. We are, however, not in agreement that an inference can be drawn therefrom that it was not the legislative intent to attach finality to the order passed by a judicial authority under section 8 of the Arbitration Act, 1996. The observations made in Konkan Railway Corpn. Ltd. s case ( supra ), extracted above delineate one of the primary objectives of the Arbitration Act, 1996, i.e., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the order... It is evident from the above reproduced extract that the instant portion of section 37(1) of the Arbitration Act, 1996 is merely limited to determine the forum of appeal and not the authority which passed by the orders which are appealable. In our view, the term order used in section 37(1) of the Arbitration Act, 1996 would necessarily include all orders which can be based under Part I of the Arbitration Act, 1996. It is not possible for us to accept the contention of the learned counsel for the appellants that the impugned order under reference having not been passed by a court, but having been passed by a judicial authority , would not be governed by section 37 of the Arbitration Act, 1996. 36. Having dealt with all issues canvassed by learned counsel, we now endeavour to draw conclusions based on our interpretation of section 37 of the Arbitration Act, 1996. In the absence of judicial precedent on the pointed issue, we will embark upon the controversy on first principles. We have already concluded above that even a remedy of appeal would not be available unless expressly provided for, while interpreting section 5 of the Arbitration Act, 1996. We have also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him to the decision of the arbitrators and such reference shall not prejudice the competence of the judicial authority in case the agreement or the arbitration cannot proceed or becomes inoperative." 37.1 A plain reading of section 8 and section 54 leaves no doubt that the scope of these two provisions is similar; while the former applies to the domestic arbitration, the latter applies to foreign arbitrations. It is pointed out that section 59 provides for appeals in respect of orders passed under Part II. Section 59 is also being reproduced hereunder: "59. Appealable orders. (1) An appeal shall lie from the order refusing ( a )to refer the parties to arbitration under section 54; and ( b )to enforce a foreign award under section 57, to the court authorised by law to hear appeals from such order. (2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court." 37.2 The contention of the learned counsel for the respondents is that when an appeal has been provided for against an order passed under section 54 and not an order passed under section 8 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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