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TMI Blog2010 (11) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... rities Contracts (Regulation) Act, 1956. Thus it appears that the Bombay High Court, had accepted that the doctrine of attachment was applicable. The present applications are allowed and it is held that the appeals under section 10F of the Companies Act are not maintainable against the impugned orders allowing applications under section 45 of the Arbitration Act. X X X X Extracts X X X X X X X X Extracts X X X X ..... is Act shall be-- (a )the High Court haying jurisdiction in relation to the place at which the registered office of the company concerned is situate, except to the extent to which jurisdiction has been conferred on any District Court or District Courts subordinate to that High Court in pursuance of sub-section (2); and (b )where jurisdiction has been so conferred, the District Court in regard to matters falling within the scope of the jurisdiction conferred, in respect of companies having their registered offices in the district. (2) The Central Government may, by notification in the Official Gazette and subject to such restrictions, limitations and conditions as it thinks fit, empower any District Court to exercise all or any of the jurisdiction conferred by this Act upon the Court, not being the jurisdiction conferred-- (a)in respect of companies generally, by sections 237, 391, 394, 395 and 397 to 407, both inclusive; (b)in respect of companies with a paid-up share capital of not less than one lakh of rupees, by Part VII (Sections 425 to 560) and the other provisions of this Act relating to the winding up of companies. (3) For the purposes of jurisdiction to wind up compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Companies Act. 7. A similar question had arisen before Punjab and Haryana High Court in Hind Samachar Ltd. v. Vijay Kumar Chopra [2003] 117 Comp. Cas. 660 1. In the said case, the CLB had dismissed an application under section 8 of the Arbitration Act, which was made subject-matter of an appeal under section 10F of the Companies Act. It was contended that the appeal was maintainable under section 10F of the Companies Act in view of the language of the said section and for this purpose and to answer to the issue reference must be made to the provisions of the Companies Act itself and not to section 37 of the Arbitration Act. These contentions were rejected. 8. It may be noted that Arbitration Act in section 37 does not provide for an appeal against an order rejecting or accepting an application under section 8 of the said Act. Under the said section, appeals can be filed only against the orders specified in section 37 of the Arbitration Act. Division Bench of the Punjab and Haryana High Court after examining the provisions of the Companies Act and the Arbitration Act has opined as under:-- "8. In our view, in order to adjudicate upon the aforesaid contention, it would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o prefer an appeal against an order passed by the Company Law Board in its capacity as 'Judicial authority' while deciding an application filed under section 8 of the Arbitration Act, 1996, must be searched for, from within the provisions of the Arbitration Act, 1996, more so, because the impugned order is not referable to any provision of the Companies Act, 1956. 10. We find no merit also in the submission relating to grant of preference to the statute laying down substantive law over a statute laying down adjective, incidental, supplemental or procedural law. In our view, there is no conflict between the provision of the Companies Act, 1956, and the Arbitration Act, 1996, therefore, the question whether the Companies Act, 1956, would have an overriding effect over the provisions of the Arbitration Act, 1996, does not arise. In our view, in order to ascertain substantive rights, reference must be made to the statute laying down substantive rights; and likewise, for determination of procedural rights, one must resort to the enactment laying down the procedure. In the absence of conflict between the two, it is unnecessary to determine which of the two would have overriding effect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority 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 fact that constitutional authority of this court is not an issue at all, in our view, the aforesaid case is not relevant for adjudication of the dispute before us. Shorn of the conclusion drawn by the Supreme Court in Vanita M. Khanolkar's case (supra), it is clear that the rule of attachment canvassed on behalf of the appellants would be subject to a contrary intention in the referring statute. It would also be pertinent to mention that the decision rendered by the Apex Court in Vanita M. Khanolkar's case (supra) is under reconsideration in view of the order passed by the Supreme Court in Orma Impex (P.) Ltd. v. Nissai Asb Pte. Ltd. [1999] 2 SCC 541, wherein the court in the short order passed by it noticed as under : 'In State of W.B. v. Gaurangalal Chatterjee [1993] 3 SCC 1, this court relied upon an earlier decision of the Court in Union of India v. Mohindra Supply Co. AIR 1962 SC 256. The said decision was rendered with reference to the appealability of an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son of sections 8 and 37 of the Arbitration Act, 1996, on the one hand, with sections 54 and 57 of the said Act, on the other, the legislative intent to exclude the remedy of appeal against an order passed by a 'judicial authority' while deciding a claim for reference to an arbitrator under section 8 of the Arbitration Act, 1996, is clearly in the affirmative." 11. Unlike section 37 of the Arbitration Act which applies to Part I, section 50 of the Arbitration Act applies to international arbitration covered by New York Convention. Section 50 of the Arbitration Act stipulates that an appeal shall lie against an order refusing to refer the parties to arbitration under section 45 or to enforce an award under section 48 of the Arbitration Act. In the present case we are concerned with section 50 of the Arbitration Act. Division Bench of Delhi High Court in Jindal Exports Ltd. v. Fuerst Day Lawson [2010] 170 DLT 628 has examined section 50 of the Arbitration Act and has held that in view of the statutory bar and prohibition a Letters Patent Appeal would not be maintainable except against orders mentioned in section 50 of the Arbitration Act. In other words, in respect of international ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lie from the order of CLB to the court authorised by law to hear the appeals from such order of CLB. To make it clear that in the event the order under section 45 is passed by CLB, the forum which is provided under law for hearing the appeal from the order of CLB, will be the appellate forum. In other words, while section 50 of the Arbitration Act provides for the orders which can be made the subject-matter of the appeal, the forum to hear the appeal is to be tested with reference to the appropriate law governing the authority or forum which passed the original order, that is, in the case on hand, CLB. Section 10F, read with section 10(1)(a) of the Companies Act provides for such forum to hear the appeal from the orders of CLB as the High Court within the jurisdiction of which the registered office of the company in issue is situated." ****** "34. In view of our conclusion, we are satisfied that the appellant has wrongly based its arguments on matters such as ouster of jurisdiction, overriding effect of special statute over general statute, overriding effect of subsequent statute, etc. Since they have no application whatsoever to the matter in issue, there is no need to refer va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Unit Trust of India AIR 1995 Bom. 194. This decision was also cited before the Punjab and Haryana High Court in Hind Samachar Ltd.'s case (supra) and was dissented from. I am not expressing any opinion in this regard as I feel that the decision in the case of Kinetic Engg. Ltd. (supra) is distinguishable. In the case before the Bombay High Court, proceedings were initiated before the CLB under the Securities Contracts (Regulation) Act, 1956 on the question whether the Board of Directors have power to refuse registration of shares under section 22A(3) of the said Act. It has been held by the Bombay High Court that the order passed by the CLB can be assailed in an appeal under section 10F as the CLB while passing the impugned order had exercised jurisdiction under section 10E(1A) of the Companies Act. It was further observed that in the Securities Contract (Regulation) Act, 1956, there is no provision for appeal. In other words, the said Act did not bar or prohibit any appeal. Accordingly, it was observed that the appeal would lie under section 10F of the Act as there was no express or implied bar under the Securities Contracts (Regulation) Act, 1956. Thus it appears that the Bomba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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