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TMI Blog2021 (8) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... cate Mr Abhisar Vidyarthi, Advocate Ms Ninaee Deshmukh, Advocate Mr Pawan Bhushan, Advocate Ms Hima Lawrence, Advocate Ms Ujwala Uppaluri, Advocate Mr Mohit Pandey, Advocate Ms Raka Chatterji, Advocate Mr Vinay Tripathi, Advocate Mr Aishvary Vikram, Advocate Mr Kaustubh Prakash, Advocate Ms Anushka Shah, Advocate Ms Neelu Mohan, Advocate Mr Aspi Chinoy, Sr. Advocate Mr Gourab Banerji, Sr. Advocate Mr Amit Sibal, Sr. Advocate Mr Nakul Dewan, Sr. Advocate Mr Anand S Pathak, Advocate Mr Amit K Mishra, Advocate Mr Shashank Gautam, Advocate Mr Shashank Manish, AOR Ms Sreemoyee Deb, Advocate Mr Vijay Purohit, Advocate Mr Mohit Singh, Advocate Ms Smriti Shah, Advocate Mr Harshad Pathak, Advocate Mr Promit Chatterjee, Advocate Mr Shivam Pandey, Advocate Ms Samridhi Hota, Advocate Ms Kanika Singhal, Advocate Ms Saloni Agarwal, Advocate Ms Nidhi Sahay, Advocate Ms Didon Misri, Advocate Ms Nikita Bangera, Advocate Mr Pratik Jhaveri, Advocate Mr Faizan Mithaiwala, Advocate Mr Vijayendra Pratap Singh, Advocate Mr Rachit Bahl, Advocate Ms Roopali Singh, Advocate Mr Abhijnan Jha, Advocate Mr Priyank Ladoia, Advocate Mr Tanmay Sharma, Advocate Ms Vanya Chhabra, Advocate Mr Arnab Ray, Advocate Mr V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retailer ["FRL"] (ii) Respondent No.2 - Future Coupons Pvt. Ltd., a company that holds 9.82% shareholding in FRL and is controlled and majority-owned by Respondents No. 3 to 11 ["FCPL"] (iii) Respondent No.3 - Mr. Kishore Biyani, Executive Chairman and Group CEO of FRL (iv) Respondent No.8 - Mr. Rakesh Biyani, Managing Director of FRL (v) Respondents No. 4 to 7 and 9 to 11 - other members of the Biyani family, namely, Ms. Ashni Kishore Biyani, Mr. Anil Biyani, Mr. Gopikishan Biyani, Mr. Laxminarayan Biyani, Mr. Sunil Biyani, Mr. Vijay Biyani, and Mr. Vivek Biyani, who are promoters and shareholders of FRL (vi) Respondents No. 12 and 13 - Future Corporate Resources Pvt. Ltd. and Akar Estate and Finance Pvt. Ltd., group companies of FRL Respondents No. 1 to 13 are hereinafter collectively referred to as the "Biyani Group". 2.2. The seat of the arbitral proceedings is New Delhi, and as per the arbitration clause agreed upon by the parties, SIAC Rules apply. 2.3. Three agreements were entered into between the parties. A Shareholders' Agreement dated 12th August, 2019, was entered into amongst the Biyani Group, i.e., Respondents No. 1 to 13 ["FRL Shareholders' Agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication on 5th October, 2020 seeking emergency interim relief under the SIAC Rules, asking for injunctions against the aforesaid transaction. Mr. V.K. Rajah, SC was appointed as the Emergency Arbitrator and heard detailed oral submissions from all parties and then passed an "interim award" dated 25th October, 2020, in which the learned Arbitrator issued the following injunctions/directions: "B. Dispositive Orders/Directions 285. In the result, I award, direct, and order as follows: (a) the Respondents are injuncted from taking any steps in furtherance or in aid of the Board Resolution made by the Board of Directors of FRL on 29 August 2020 in relation to the Disputed Transaction, including but not limited to filing or pursuing any application before any person, including regulatory bodies or agencies in India, or requesting for approval at any company meeting; (b) the Respondents are injuncted from taking any steps to complete the Disputed Transaction with entities that are part of the MDA Group; (c) without prejudice to the rights of any current Promoter Lenders, the Respondents are injuncted from directly or indirectly taking any steps to transfer/ dispose/ alienate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ests in the present case are in respect of "balance of convenience" and "irreparable loss". Even if a prima facie case is made out by FRL, the balance of convenience lies both in favour of FRL and Amazon. If the case of FRL is that the representation by Amazon to the statutory authorities /regulators is based on illegal premise, Amazon has also based its representation on the alleged breach of FCPL SHA and FRL SHA, as also the directions in the EA order. Hence it cannot be said that the balance of convenience lies in favour of FRL and not in favour of Amazon. It would be a matter of trial after parties have led their evidence or if decided by any other competent forum to determine whether the representation of Amazon that the transaction between FRL and Reliance being in breach of the FCPL SHA and FRL SHA would outweigh the plea of FRL in the present suit. Further in case Amazon is not permitted to represent its case before the statutory authorities/Regulators, it will suffer an irreparable loss as Amazon also claims to have created pre-emptive rights in its favour in case the Indian law permitted in future. Further there may not be irreparable loss to FRL for the reason even if Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure"] in which it was held that an Emergency Arbitrator's award is an order under Section 17(1) of the Arbitration Act. Since breaches of the Agreements aforementioned were admitted, the only plea being raised being that the Emergency Arbitrator's award was a nullity, the learned Single Judge held that such award was enforceable as an order under the Arbitration Act, and further held that the injunctions/directions granted by the said award were deliberately flouted by the Biyani Group. He also found that any so-called violations of Foreign Exchange Management Act, 1999 ["FEMA"] did not render the Emergency Arbitrator's award a nullity, and therefore, issued a show-cause notice under Order XXXIX, Rule 2-A of the Code of Civil Procedure, after imposing Rs. 20 lakh as costs to be deposited with the Prime Minister Relief Fund for being used for providing COVID vaccinations to the Below Poverty Line category of senior citizens of Delhi. The learned Single Judge then directed as follows: "Conclusion 188. The Emergency Arbitrator is an Arbitrator for all intents and purposes; order of the Emergency Arbitrator is an order under Section 17(1) and enforceable as an order of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the Code of Civil Procedure for violation of the order dated 25th October, 2020. Reply to the show cause notice be filed within two weeks. Rejoinder within two weeks thereafter. 196. The respondents are directed not to take any further action in violation of the interim order dated 25th October, 2020. The respondents are further directed to approach all the competent authorities for recall of the orders passed on their applications in violation of the interim order dated 25th October, 2020 within two weeks. The respondents are directed to file an affidavit to place on record the actions taken by them after 25th October, 2020 and the present status of all those actions at least three days before the next date of hearing. 197. Respondents No.3 to 11 shall remain present before this Court on the next date of hearing." He listed the matter for further directions on 28th April, 2021. 2.9. Against this detailed judgment, FAO No. 51 of 2021 was filed by FRL. By the second impugned judgment in this case dated 22nd March, 2021, a Division Bench of the Delhi High Court referred to its earlier order dated 8th February, 2021 and stayed the learned Single Judge's detailed judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions and delineated in several judgments of this Court. He then referred to Section 37, pointing out that an appeal under Section 37(2)(b) is restricted to granting or refusing to grant an interim measure under Section 17, which would refer to Section 17(1) and not Section 17(2). He went on to argue that the Arbitration Act is a complete code in itself and if an appeal does not fall within the four corners of Section 37, then it is incompetent, as has been held by several judgments of this Court. 3.2. He also referred to various judgments of this Court, arguing that an Emergency Arbitrator's award can never be characterised as a nullity and ignored, and cited a number of judgments to show that until the said award is set aside, it must be obeyed. He also referred to the important fact that the award must be taken as it stands as no appeal was made therefrom by the Biyani Group and that, therefore, it was not permissible to go behind the award. 3.3. He also cited judgments to show that non-signatories to arbitration agreements would nevertheless be bound thereby and on facts, it was admitted that the "Ultimate Controlling Person" behind the entire transaction was Mr. Kisho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possibly be filed if it was outside the four corners of Section 37. 6. Mr. Harish Salve, learned Senior Advocate appearing on behalf of FRL, stated that he would not go to the extent of arguing that an Emergency Arbitrator's award would be outside the ken of the Arbitration Act, but that it was sufficient for his purpose to argue that an Emergency Arbitrator's award cannot be said to fall under Section 17(1) of the Act. He placed before us an extract of the 246th Law Commission Report, in which the Law Commission advocated the amendment of Section 2 of the Arbitration Act, to include within sub-section (1)(d) a provision for the appointment of an Emergency Arbitrator. He said that despite this suggestion being made, Parliament did not adopt the same when it amended the Arbitration Act by the 2015 Amendment Act, thereby indicating that such orders would not fall within Section 17(1) of the Arbitration Act. He then took us through the definition sections in the Arbitration Act and read out Sections 10 to 13, 16, 17, 21, 23, 27, 29A, and 30, in particular, to argue that an arbitral tribunal as defined by Section 2(1) (d) of the Act can only mean a tribunal that is constituted betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case was not under Section 37 of the Arbitration Act but was under Order XLIII, Rule 1(r) of the Code of Civil Procedure. He then read Section 9 together with Section 37 of the Arbitration Act to stress that orders may be made under Section 9 until enforcement of an award in accordance with Section 36, and then read Section 36 to make it clear that the contours of Section 37 did not go beyond orders and awards made under the Arbitration Act. Since orders made in enforcement proceedings are not under the Arbitration Act but only under the Code of Civil Procedure, therefore, in enforcement proceedings - both under Section 17(2) and under Section 36(1) - appeals can be filed from such orders under the Code of Civil Procedure. He stressed upon the language of Section 36(1), which made it clear that when a final award is made, it shall be enforced in accordance with the provisions of the Code of Civil Procedure in the same manner as if it were a decree of the court, thereby arguing that by a legal fiction, an award is deemed to be a decree for the purposes of enforcement, which would include all purposes, including appeals from orders passed in enforcement proceedings. He also stressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code of Civil Procedure", and that Section 36(1) and Section 17(2) are pari materia provisions, distinct from Section 36(3), under which a stay of an award may be granted under the Arbitration Act with "due regard to the Code of Civil Procedure". He then added that when different words are used in different provisions, they are meant to be differentiated. He also cited judgments to buttress each one of these submissions. He then went on to discuss various High Court judgments which show that, in practice, appeals that are filed against orders and awards sought to be enforced are filed under the Code of Civil Procedure and not under the Arbitration Act. 7.1. He then referred to Section 17(1) and, in particular, to the expression "and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and in relation to, any proceedings before it" and argued that the expression "in relation to" refers only to incidental powers given to the tribunal and not to powers of enforcement. He also argued that the expression "arbitral tribunal" in Section 17(1) is to be read as defined by Section 2(1)(d), there being nothing in the context of Section 17(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Emergency Arbitrator. 8. Mr. Vikram Nankani, learned Senior Advocate appearing on behalf of Respondents No. 1 to 12 in Civil Appeal Nos. 4496-4497 of 2021 and Respondents No. 2 to 13 in Civil Appeal Nos. 4494-4495 of 2021, was at pains to point out that in the enforcement application, on the facts of this case, it was specifically pleaded that the High Court was being approached as a civil court, and that the application was filed only under Order XXXIX, Rule 2-A. He also cited judgments to show that the provisions of Order XXXIX, Rule 2-A, being punitive in nature and requiring a heightened standard of wilful disobedience to be applied cannot be applied routinely or in the cavalier manner in which the learned Single Judge has applied the said provision. He also referred to the fact that only the SIAC Rules pertaining to "arbitration" stricto sensu were agreed to between the parties, which would exclude rules relating to awards by an Emergency Arbitrator. He then distinguished the judgment in Kakade Construction (supra) relied upon by Mr. Chinoy and the judgment in Jet Airways (India) Ltd. v. Subrata Roy Sahara, 2011 SCC OnLine Bom 1379 : 2012 (2) AIR Bom 855 ["Jet Airways"] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to agree on the procedure to be followed by an arbitral tribunal in conducting its proceedings. 12. Section 21 provides that arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. This Section is expressly subject to agreement by the parties. Rule 3.3 of the SIAC Rules reads as follows: "Rule 3: Notice of Arbitration * * * 3.3 The date of receipt of the complete Notice of Arbitration by the Registrar shall be deemed to be the date of commencement of the arbitration. For the avoidance of doubt, the Notice of Arbitration is deemed to be complete when all the requirements of Rule 3.1 and Rule 6.1(b) (if applicable) are fulfilled or when the Registrar determines that there has been substantial compliance with such requirements. SIAC shall notify the parties of the commencement of the arbitration." By agreeing to the application of the SIAC Rules, the arbitral proceedings in the present case can be said to have commenced from the date of receipt of a complete notice of arbitration by the Registrar of the SIAC, which would indicate that arbitral proceedings u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6) of the 1996 Act for the appointment of an arbitrator must, therefore, fail and is rejected, but this will not prevent the petitioner from taking recourse to other provisions of the aforesaid Act for appropriate relief." Similarly, in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2016) 4 SCC 126 ["Balco"], this Court stated thus: "5. Party autonomy being the brooding and guiding spirit in arbitration, the parties are free to agree on application of three different laws governing their entire contract - (1) proper law of contract, (2) proper law of arbitration agreement, and (3) proper law of the conduct of arbitration, which is popularly and in legal parlance known as "curial law". The interplay and application of these different laws to an arbitration has been succinctly explained by this Court in Sumitomo Heavy Industries Ltd. v. ONGC Ltd. [Sumitomo Heavy Industries Ltd. v. ONGC Ltd., (1998) 1 SCC 305], which is one of the earliest decisions in that direction and which has been consistently followed in all the subsequent decisions including the recent Reliance Industries Ltd. v. Union of India [Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiding spirit in arbitration, the parties are free to agree on application of three different laws governing their entire contract- (1) proper law of contract, (2) proper law of arbitration agreement, and (3) proper law of the conduct of arbitration, which is popularly and in legal parlance known as "curial law". The interplay and application of these different laws to an arbitration has been succinctly explained by this Court in Sumitomo [Sumitomo Heavy Industries Ltd. v. ONGC Ltd., (1998) 1 SCC 305] which is one of the earliest decisions in that direction and which has been consistently followed in all the subsequent decisions including the recent Reliance Industries Ltd. v. Union of India [Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 603 : (2014) 3 SCC (Civ) 737]." (emphasis in original) Later in para 10 of the Report, it was held: (SCC pp. 131-32) "10. In the matter of interpretation, the court has to make different approaches depending upon the instrument falling for interpretation. Legislative drafting is made by experts and is subjected to scrutiny at different stages before it takes final shape of an Act, Rule or Regulation. There is another category of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties to the contract have not by-passed any mandatory provision of the A&C Act and were aware, or at least ought to have been aware that they could have agreed upon the finality of an award given by the arbitration panel of the Indian Council of Arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration. Yet they voluntarily and deliberately chose to agree upon a second or appellate arbitration in London, UK in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce. There is nothing in the A&C Act that prohibits the contracting parties from agreeing upon a second instance or appellate arbitration - either explicitly or implicitly. No such prohibition or mandate can be read into the A&C Act except by an unreasonable and awkward misconstruction and by straining its language to a vanishing point. We are not concerned with the reason why the parties (including HCL) agreed to a second instance arbitration - the fact is that they did and are bound by the agreement entered into by them. HCL cannot wriggle out of a solemn commitment made by it voluntarily, deliberately and with eyes wide open." (emphasis suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y endorsed by it. This judgment is, therefore, entirely distinguishable from the fact situation in the present case. 18. However, Mr. Salve argued, relying strongly upon the provisions of Sections 10 to 13, 16, 17, 21, 23, 27, 29A, and 30 of the Arbitration Act, in particular, that the "arbitral tribunal" spoken of in these provisions, and referable to Section 2(1)(d) of the Act, is exhaustively defined, which means a sole arbitrator or a panel of arbitrators, which, when read with these provisions, would only include an arbitral tribunal which can not only pass interim orders, but which is constituted between the parties so that interim and/or final awards can be passed by this very tribunal. He also argued, contrasting the language of Section 9(1) with the language of Section 17(1), that Section 17(1) would only apply where a party, during arbitral proceedings, applies to an arbitral tribunal (as defined) for interim relief, which cannot possibly apply to an Emergency Arbitrator who is admittedly appointed only before an arbitral tribunal is properly constituted. By way of contrast, he argued that under Section 9(1), an interim measure by the courts may be availed by a party eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bitral tribunal" as defined under Section 2(1)(d) would not apply and the arbitral tribunal spoken of in Section 9(3) would be like the "arbitral tribunal" spoken of in Section 17(1) which, as has been held above, would include an Emergency Arbitrator appointed under institutional rules. 21. However, Mr. Salve relied upon Firm Ashok Traders v. Gurumukh Das Saluja, (2004) 3 SCC 155 and, in particular, the following passage: "18. Under the A&C Act, 1996, unlike the predecessor Act of 1940, the Arbitral Tribunal is empowered by Section 17 of the Act to make orders amounting to interim measures. The need for Section 9, in spite of Section 17 having been enacted, is that Section 17 would operate only during the existence of the Arbitral Tribunal and its being functional. During that period, the power conferred on the Arbitral Tribunal under Section 17 and the power conferred on the court under Section 9 may overlap to some extent but so far as the period pre- and post- the arbitral proceedings is concerned, the party requiring an interim measure of protection shall have to approach only the court. ..." This judgment also does not carry the Respondents' case any further as the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law and Dispute Resolution). This Agreement and the rights and obligations of the Parties shall remain in full force and effect pending the award in such arbitration providing, which award, if appropriate, shall determine whether and when any termination shall become effective." As has been held by us above, it is wholly incorrect to say that Section 17(1) of the Act would exclude an Emergency Arbitrator's orders. This being the case, even if section 25.2 of the FCPL Shareholders' Agreement (pari materia with section 15.2 of the FRL Shareholders' Agreement) makes the SIAC Rules subject to the Arbitration Act, the said Act, properly construed, would include an Emergency Arbitrator's awards/orders, there being nothing inconsistent in the SIAC Rules when read with the Act. 23. Also, Mr. Nankani's argument that the arbitration agreement contained in section 25.2 of the FCPL Shareholders' Agreement referred to hereinabove would indicate that the SIAC Rules were only agreed upon insofar as arbitration alone is concerned is wholly incorrect. Rule 1.3 of the SIAC Rules indicates that an award of an Emergency Arbitrator is included within the ambit of these Rules, and that an Emergency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k to appoint an Emergency Arbitrator within one day of receipt by the Registrar of such application and payment of the administration fee and deposits. 4. If the parties have agreed on the seat of the arbitration, such seat shall be the seat of the proceedings for emergency interim relief. Failing such an agreement, the seat of the proceedings for emergency interim relief shall be Singapore, without prejudice to the Tribunal's determination of the seat of the arbitration under Rule 21.1. 5. Prior to accepting appointment, a prospective Emergency Arbitrator shall disclose to the Registrar any circumstances that may give rise to justifiable doubts as to his impartiality or independence. Any challenge to the appointment of the Emergency Arbitrator must be made within two days of the communication by the Registrar to the parties of the appointment of the Emergency Arbitrator and the circumstances disclosed. 6. An Emergency Arbitrator may not act as an arbitrator in any future arbitration relating to the dispute, unless otherwise agreed by the parties. * * * 8. The Emergency Arbitrator shall have the power to order or award any interim relief that he deems necessary, incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons for his decision in writing. Under paragraph 9, the interim order is to be made within 14 days of his appointment, unless time is extended. Importantly, once the arbitral tribunal is constituted under paragraph 10, the tribunal may reconsider, modify, or vacate any such interim order. Such interim order or award issued by the Emergency Arbitrator will continue to bind the parties unless it is modified or vacated by the arbitral tribunal, once it is constituted, until the tribunal makes a final award or until the claim is withdrawn. Paragraph 10 of Schedule 1 also provides that any interim order or award made by the Emergency Arbitrator shall cease to be binding only if the tribunal is not constituted within 90 days of such order or award. Under paragraph 12, the parties agree that such orders shall be binding on the parties from the date it is made and undertake to carry out the interim order immediately and without delay. 26. No doubt, as has been submitted, the 246th Law Commission Report did provide for the insertion of an Emergency Arbitrator's orders into Section 2(1)(d) of the Arbitration Act as follows: "Amendment of Section 2 1. In section 2 of the Arbitratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its precedential value, as Parliament has taken note of the proposed Section 16(7) in the 246th Law Commission Report, and has expressly chosen not to enact it. For this proposition, he referred to La Pintada [President of India v. La Pintada Compania Navigacion SA, 1985 AC 104 : (1984) 3 WLR 10 (HL)]. This judgment related to a challenge to an award granting compound interest, inter alia, in a case where a debt is paid late, but before any proceedings for its recovery had begun. 28. He then referred to the fact that the aforesaid sub-section was not inserted by Parliament by the 2015 Amendment Act, which largely incorporated other amendments proposed by the Law Commission. His argument therefore was that N. Radhakrishnan [N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72] not having been legislatively overruled, cannot now be said to be in any way deprived of its precedential value, as Parliament has taken note of the proposed section 16(7) in the 246th Law Commission Report, and has expressly chosen not to enact it. For this proposition, he referred to La Pintada (supra). This judgment related to a challenge to an award granting compound interest, inter alia, in a case w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrable. Further, "allegations of fraud, corruption, etc." is vague. For this reason also, Parliament may have left it to the courts to work out the fraud exception. In any case, we have pointed out that dehors any such provision, the ratio in N. Radhakrishnan, being based upon a judgment under the 1940 Act, and without considering Sections 5, 8 and 16 of the 1996 Act in their proper perspective, would all show that the law laid down in this case cannot now be applied as a precedent for application of the fraud mantra to negate arbitral proceedings. For the reasons given in this judgment, the House of Lords' decision would have no application inasmuch as N. Radhakrishnan has been tackled on the judicial side and has been found to be wanting." 28. It is pertinent to note that the High-Level Committee constituted by the Government of India under the chairmanship of Justice B.N. Srikrishna (Retd.) to review the institutionalisation of arbitration mechanism in India and look into the provisions of the Arbitration Act after the 2015 Amendment Act, submitted a report on 30th July, 2017 ["Srikrishna Committee Report"], in which it is stated as follows: "16. Enforcement of emergency aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Report laid down that it is possible to interpret Section 17(2) of the Act to enforce emergency awards for arbitrations seated in India, and recommended that the Act be amended only so that it comes in line with international practice in favour of recognising and enforcing an emergency award. 30. It is relevant to note that the 246th Law Commission Report also recommended the insertion of Section 9(2) and 9(3) as follows: "Amendment of Section 9 6. In section 9, (i) before the words "A party may, before" add sub-section "(1)" (ii) after the words "any proceedings before it" add sub-section "(2) Where, before the arbitral proceedings, a Court grants any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within 60 days from the date of such grant or within such shorter or further time as indicated by the Court, failing which the interim measure of protection shall cease to operate. [NOTE: This amendment is to ensure the timely initiation of arbitration proceedings by a party who is granted an interim measure of protection.] (iii) Add sub-section "(3) Once the Arbitral Tribunal has been constituted, the Court sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to, any proceedings before it." [NOTE: This is to provide the arbitral tribunal the same powers as a civil court in relation to grant of interim measures. When this provision is read in conjunction with section 9(2), parties will by default be forced to approach the Arbitral Tribunal for interim relief once the Tribunal has been constituted. The Arbitral Tribunal would continue to have powers to grant interim relief post-award. This regime would decrease the burden on Courts. Further, this would also be in tune with the spirit of the UNCITRAL Model Law as amended in 2006.] (vii) delete words in sub-section (2) and add the words "(2) Subject to any orders passed in appeal under section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an Order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908 in the same manner as if it were an Order of the Court." [NOTE: This is to ensure the effective enforcement of interim measures that may be ordered by an arbitral tribunal.]" 34. Section 17 was then amended by the very same 2015 Amendment Act (which brought in sub-sections (2) and (3) to Section 9) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependently of any other administrative authority under the SIAC Rules. Equally, Rule 9 does not, in any manner, impinge upon the independence of the Emergency Arbitrator as it only lays down the timeframe within which an interim order or award is to be made, which time is extendable by the Registrar. The interim order or award that is finally made by the Emergency Arbitrator has only to be approved by the Registrar as to its "form" and not on merits. Further, Rule 10 also does not, in any manner, interfere with the independence of the decision of the Emergency Arbitrator. This argument is, therefore, rejected. 38. Mr. Viswanathan also went on to argue, relying upon Section 28 of the Contract Act, Justice R.S. Bachawat's Law of Arbitration and Conciliation (Sixth Ed., LexisNexis), and the Chancery Division judgment of In Re Franklin and Swathling's Arbitration, [1929] 1 Ch. 238, for the proposition that arbitration, conceptually, is an ouster of the civil court's jurisdiction and that, therefore, only what is expressly provided in the ouster provisions can be followed - there is no room for any implication here. This argument may have found favour with a court if it were dealing wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order made by the Civil Court is without jurisdiction or is contrary to law, the appropriate course open to him is to approach that court with that plea and ask for vacating the order. But it is not open to him to flout the said order assuming that the order is without jurisdiction. It is this principle which has been recognised and incorporated in Section 9-A of Civil Procedure Code (inserted by Maharashtra Amendment Act No. 65 of 1977), says Mr Sorabjee. Section 9-A reads as follows: "9-A. Where at the hearing of an application relating to interim relief in suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue.- (1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a prelim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the defendants to flout them merrily, without fear of any consequence. Admittedly, this could not be done until the High Court's decision on the question of jurisdiction. The question is whether the said decision of the High Court means that no person can be punished for flouting or disobeying the interim/interlocutory orders while they were in force, i.e., for violations and disobedience committed prior to the decision of the High Court on the question of jurisdiction. Holding that by virtue of the said decision of the High Court (on the question of jurisdiction), no one can be punished thereafter for disobedience or violation of the interim orders committed prior to the said decision of the High Court, would indeed be subversive of the Rule of Law and would seriously erode the dignity and the authority of the courts. We must repeat that this is not even a case where a suit was filed in the wrong court knowingly or only with a view to snatch an interim order. As pointed out hereinabove, the suit was filed in the Civil Court bona fide. We are of the opinion that in such a case the defendants cannot escape the consequences of their disobedience and violation of the interim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said orders committed before the said decision (Vishanji Virji Mepani [AIR 1996 Bom 366]) does not amount, in any event, to enforcing them after the said decision. Only the orders are being passed now. The violations are those committed before the said decision." 40. However, learned counsel for the Respondents referred to and relied upon the classic passage in Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117 (at page 122) and various other judgments following it to contend that in cases of inherent lack of jurisdiction, it would be open to a party to ignore an award by an Emergency Arbitrator. They also referred to the judgment in CIT v. Pearl Mechanical Engineering & Foundry Works (P) Ltd., (2004) 4 SCC 597, where this Court spoke of the jurisdiction of a court or tribunal by stating that such jurisdiction only subsists when a court or tribunal exercises such jurisdiction from the law. It is a power which nobody on whom the law is not conferred can exercise. None of these judgments are applicable in the fact situation of the present case. On the contrary, we have pointed out that no party, after agreeing to be governed by institutional rules, can participate in a proceeding befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it." After the 2015 Amendment Act, Section 17(1), which, as has been stated hereinabove, is now a mirror image of Section 9(1), reads as follows: "17. Interim measures ordered by arbitral tribunal.-(1) A party may, during the arbitral proceedings, apply to the arbitral tribunal- (i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or (ii) for an interim measure of protection in respect of any of the following matters, namely- (a) the preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement; (b) securing the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44. As has been pointed out hereinabove, the Law Commission recommended an amendment to Section 17 to provide the arbitral tribunal the same powers as a court would have under Section 9. 45. Section 9(1), after setting out in clauses (i) and (ii) what interim measures or protection could be granted, then goes on to add, "and the court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it". 46. The italicised words arose for interpretation in Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd., (2007) 7 SCC 125. In paragraph 11 of the judgment, this Court held: "11. It is true that Section 9 of the Act speaks of the court by way of an interim measure passing an order for protection, for the preservation, interim custody or sale of any goods, which are the subject-matter of the arbitration agreement and such interim measure of protection as may appear to the court to be just and convenient. The grant of an interim prohibitory injunction or an interim mandatory injunction are governed by well-known rules and it is difficult to imagine that the legislature while enacting Section 9 of the Act intended to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e granted.- Where in any suit it is proved by affidavit or otherwise- (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders. 2. Injunction to restrain repetition or continuance of breach.-(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto." A controversy arose as to whether sub-rules (3) and (4) to Rule 2 applied to breach of injunctions that were granted under Rule 1 of Order XXXIX. This controversy was set at rest by omitting sub-rules (3) and (4) from Order XXXIX, Rule 2 and introducing a new Rule 2-A to Order XXXIX. The Statement of Objects and Reasons for this provision read as follows: "Clause 89 - Sub-rule (iii) - New Rule 2-A is being inserted to provide for the consequences of a breach of an injunction issued under Rule 1 which is, at present, not covered. The amendment is intended to seek the application of the provisions for breach, which are, at present, available under an injunction granted under Rule 2, to the said class of cases as well. There is a controversy as to whether under the existing provision, a court to which a suit is transferred can punish disobedience of an injunction issued by the predecessor court. New Rule 2-A provides that the transferee court can also exercise that power." (See Gazette of Ind., 8th April 1974, Pt. II, S. 2. Ext. p. 335) 48. A reading of Order XXXIX, Rule 2(3) and 2(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt under Order XXXIX, Rule 2-A is punitive in nature and akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. It is quite another thing to say that Order XXXIX, Rule 2-A requires not "mere disobedience" but "wilful disobedience". We are prima facie of the view that the latter judgment in adding the word "wilful" into Order XXXIX, Rule 2-A is not quite correct and may require to be reviewed by a larger Bench. Suffice it to say that there is a vast difference between enforcement of orders passed under Order XXXIX, Rules 1 and 2 and orders made in contempt of court. Orders which are in contempt of court are made primarily to punish the offender by imposing a fine or a jail sentence or both. On the other hand, Order XXXIX, Rule 2-A is primarily intended to enforce orders passed under Order XXXIX, Rules 1 and 2, and for that purpose, civil courts are given vast powers which include the power to attach property, apart from passing orders of imprisonment, which are punitive in nature. When an order for permanent injunction is to be enforced, Order XXI, Rule 32 provides for attachment and/or detention in a civil prison. Orders that are passed under Order X ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of inquiry, which may have either of these consequences."" 21. Likewise, in Mansukhlal Dhanraj Jain v. Eknath Vithal Ogale, (1995) 2 SCC 665, the expression "Suits and proceedings between a licensor and licensee...relating to the recovery of possession" under Section 41(1) of the Presidency Small Cause Courts Act, 1882 came up for consideration before this Court. The Court held: "14. ...The words 'relating to' are of wide import and can take in their sweep any suit in which the grievance is made that the defendant is threatening to illegally recover possession from the plaintiff-licensee. Suits for protecting such possession of immovable property against the alleged illegal attempts on the part of the defendant to forcibly recover such possession from the plaintiff, can clearly get covered by the wide sweep of the words "relating to recovery of possession" as employed by Section 41(1)." * * * "16. It is, therefore, obvious that the phrase "relating to recovery of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip. This construction put by us is consistent with the wording of Section 85(2)(a) using the terms "provision" and "in relation to arbitral proceedings" which would mean that once the arbitral proceedings commenced under the old Act it would be the old Act which would apply for enforcing the award as well." This passage was referred to by this Court in BCCI v. Kochi Cricket (P) Ltd., (2018) 6 SCC 287, in paragraph 69, as follows: "69. However, Shri Viswanathan strongly relied upon the observations made in para 32 in Thyssen [Thyssen Stahlunion GmbH v. SAIL, (1999) 9 SCC 334] and the judgment in Hameed Joharan v. Abdul Salam [Hameed Joharan v. Abdul Salam, (2001) 7 SCC 573]. It is no doubt true that para 32 in Thyssen [Thyssen Stahlunion GmbH v. SAIL, (1999) 9 SCC 334] does, at first blush, support Shri Viswanathan's stand. However, this was stated in the context of the machinery for enforcement under Section 17 of the 1940 Act which, as we have seen, differs from Section 36 of the 1996 Act, because of the expression "in relation to arbitral proceedings", which took in the entire gamut, starting from the arbitral proceedings before the Arbitral Tribunal and ending up with enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any benefit or any act resulting in promoting interest or happiness. It may be contractual, professional, public, domestic, legal, statutory etc. The concept of service thus is very wide. How it should be understood and what it means depends on the context in which it has been used in an enactment. Clause (o) of the definition section defines it as under: "'service' means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;" It is in three parts. The main part is followed by inclusive clause and ends by exclusionary clause. The main clause itself is very wide. It applies to any service made available to potential users. The words 'any' and 'potential' are significant. Both are of wide amplitude. The word 'any' dictionarily means 'one or some or all'. In Black's Law Dictionary it is exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(1), and are not limited to incidental powers to make interim orders, as was suggested by Mr. Viswanathan. Thus, if an order under Section 9(1) is flouted by any party, proceedings for enforcement of the same are available to the court making such orders under Section 9(1). These powers are, therefore, traceable directly to Section 9(1) of the Act - which then takes us to the Code of Civil Procedure. Thus, an order made under Order XXXIX Rule 2-A, in enforcement of an order made under Section 9, would also be referable to Section 9(1) of the Arbitration Act. 55. Given the fact that the 2015 Amendment Act has provided in Section 17(1) the same powers to an arbitral tribunal as are given to a court, it would be anomalous to hold that if an interim order was passed by the tribunal and then enforced by the court with reference to Order XXXIX Rule 2-A of the Code of Civil Procedure, such order would not be referable to Section 17. Section 17(2) was necessitated because the earlier law on enforcement of an arbitral tribunal's interim orders was found to be too cumbersome. Thus, in Alka Chandewar v. Shamshul Ishrar Khan, (2017) 16 SCC 119, this Court referred to the earlier position as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r "guilty of any contempt to the Arbitral Tribunal during the conduct of the proceedings" under Section 27(5) of Act. The remedy of the aggrieved party would then be to apply to the Arbitral Tribunal for making a representation to the court to mete out appropriate punishment. Once such a representation is received by the court from the Arbitral Tribunal, the court would be competent to deal with such party in default as if it is in contempt of an order of the court i.e., either under the provisions of the Contempt of Courts Act or under the provisions of Order 39 Rule 2-A of the Code of Civil Procedure, 1908. 49. The Commission believes that while it is important to provide teeth to the interim orders of the Arbitral Tribunal as well as to provide for their enforcement, the judgment of the Delhi High Court in Sri Krishan v. Anand, 2009 SCC OnLine Del 2472 : (2009) 112 DRJ 657 : (2009) 3 Arb LR 447 is not a complete solution. The Commission has, therefore, recommended amendments to Section 17 of the Act which would give teeth to the orders of the Arbitral Tribunal and the same would be statutorily enforceable in the same manner as the orders of a court. In this respect, the views ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecuted in the same manner as a decree. For this limited purpose of enforcement, the provisions of CPC were made available for realising the money awarded. However, the award remained an award and did not become a decree either as defined in CPC and much less so far the purposes of an entirely different statute such as the Insolvency Act are concerned. 40. Section 36 of the Arbitration and Conciliation Act of 1996 brings back the same situation as it existed from 1899 to 1940. Only under the Arbitration Act, 1940, was the award required to be made a rule of court i.e., required a judgment followed by a decree of court. 41. Issuance of a notice under the Insolvency Act is fraught with serious consequences: it is intended to bring about a drastic change in the status of the person against whom a notice is issued viz. to declare him an insolvent with all the attendant disabilities. Therefore, firstly, such a notice was intended to be issued only after a regularly constituted court, a component of the judicial organ established for the dispensation of justice, has passed a decree or order for the payment of money. Secondly, a notice under the Insolvency Act is not a mode of enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph 28, as follows: "27. In East End Dwellings Co. Ltd. v. Finsbury Borough Council [1952 AC 109 : (1951) 2 All ER 587 (HL)] this Court approved the approach which stood adopted and followed persistently. It set out as under: (AC p. 133) "... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." 28. In Industrial Supplies (P) Ltd. v. Union of India [(1980) 4 SCC 341] this Court observed as follows: (SCC p.351, para 25) "25. It is now axiomatic that when a legal fiction is incorporated in a statute, the court has to ascertain for wha t purpose the fiction is created . After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion. The court has to assume all the facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. The legal effect of the words 'as if he were' in the definition of 'owner' in Section 3(n) of the Nationalisation Act read with Section 2(1) of the Mines Act is that althoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paramjeet Singh Patheja v. ICDS Ltd., (2006) 13 SCC 322] read as: (SCC pp. 345-46) "39. Section 15 of the Arbitration Act, 1899 provides for "enforcing" the award as if it were a decree. Thus a final award, without actually being followed by a decree (as was later provided by Section 17 of the Arbitration Act of 1940), could be enforced i.e. executed in the same manner as a decree. For this limited purpose of enforcement, the provisions of CPC were made available for realising the money awarded. However, the award remained an award and did not become a decree either as defined in CPC and much less so far the purposes of an entirely different statute such as the Insolvency Act are concerned. * * * 42. The words "as if" demonstrate that award and decree or order are two different things. The legal fiction created is for the limited purpose of enforcement as a decree. The fiction is not intended to make it a decree for all purposes under all statutes, whether State or Central." (emphasis in original) * * * "72. Foreign awards are not decrees of an Indian civil court. By a legal fiction, Section 49 provides that a foreign award, after it is granted recognition and enf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opriate High Court for enforcement, which would take recourse to the provisions of Order 21 CPC only for the purposes of execution of the foreign award as a deemed decree. The bar contained in Section 5, which excludes an application filed under any of the provisions of Order 21 CPC, would not be applicable to a substantive petition filed under the Arbitration Act, 1996. Consequently, a party may file an application under Section 5 for condonation of delay, if required in the facts and circumstances of the case." This judgment is, therefore, authority for the proposition that the fiction created by Section 49 of the Arbitration Act is limited to enforcement of a foreign award, with the important corollary that an application to enforce an award is an application under the Arbitration Act and not an application under Order XXI of the Code of Civil Procedure (in which case, such application would have been governed by Article 136 of the Limitation Act as an execution application under Order XXI, and not an application under the residuary Article 137 of the Limitation Act). Mr. Salve's attempt to distinguish this judgment on the ground that Section 49 lays down an entirely different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Civil Procedure. By way of contrast, an award is enforced in accordance with the provisions of the Code of Civil Procedure and not under the Arbitration Act. It was also argued that Section 17(2) and Section 36(1) are instances of legislation by reference and not legislation by incorporation. 64. The interpretation of Section 36 is not before us - the interpretation of Section 17 read with Section 9 is. As far as Section 17 is concerned, as has been pointed out by us hereinabove, the scheme qua interim orders passed by an arbitral tribunal mirrors the scheme qua interim orders passed by civil courts under Section 9. This vital difference between the provisions of Section 17 read with Section 9 and as contrasted with Section 36 puts paid to this argument. 65. We will now deal with some of the judgments of this Court cited by the learned counsel for the Respondents. They strongly relied upon the judgment of the Delhi High Court in Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd., 2009 SCC OnLine Del 511 : (2009) 159 DLT 579 ["Daelim Industrial Co."] for the proposition that enforcement applications under Section 36 of the Arbitration Act are independent of arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral proceedings." This judgment does not, in any manner, take the matter any further as it does not advert to Section 17 of the Act at all and is on a completely different point as to whether execution of an award can only be in the first court which is approached under Section 42 of the Act or can be a proceeding which can be filed and pursued in any court. 67. The learned counsel for the Respondents then relied upon the Full Bench judgment of the Bombay High Court in Gemini Bay Transcription Pvt. Ltd. v. Integrated Sales Service Ltd., 2018 SCC OnLine Bom 216 : AIR 2018 Bom 89 (FB) ["Gemini Bay"] which dealt with the same question and decided that Section 42 of the Act would not apply to enforcement applications under the Act, which have to follow the drill of Sections 38 and 39 of the Code of Civil Procedure. The learned counsel for Amazon, however, strongly relied upon judgments of the Bombay High Court in Jet Airways (supra), Kakade Construction (supra), and Global Asia Venture Co. v. Arup Parimal Deb, 2018 SCC OnLine Bom 13061. Since these judgments deal with enforcement proceedings filed under Section 36 of the Arbitration Act, we do not express any opinion on their correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Arbitration Act. 21. However, the question still arises as to why Section 37 of the Arbitration Act was expressly included in the proviso to Section 13(1) of the Commercial Courts Act, which is equally a special provision of appeal contained in a self-contained code, which in any case would be outside Section 13(1) of the Commercial Courts Act. One answer is that this was done ex abundanti cautela. Another answer may be that as Section 37 itself was amended by the Arbitration Amendment Act, 2015, which came into force on the same day as the Commercial Courts Act, Parliament thought, in its wisdom, that it was necessary to emphasise that the amended Section 37 would have precedence over the general provision contained in Section 13(1) of the Commercial Courts Act. Incidentally, the amendment of 2015 introduced one more category into the category of appealable orders in the Arbitration Act, namely, a category where an order is made under Section 8 refusing to refer parties to arbitration. Parliament may have found it necessary to emphasise the fact that an order referring parties to arbitration under Section 8 is not appealable under Section 37(1)(a) and would, therefore, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Section are permissible, and matters not mentioned therein cannot be brought in. It was further held that what follows from this is that the substantive provision of appeal is contained in Section 50 of the Act, which alone must be read, Section 13(1) of the Commercial Courts Act, 2015 being a general provision, which must give way to the specific provision contained in Section 50. 71. Likewise, in Deep Industries Ltd. v. ONGC, (2020) 15 SCC 706, this Court opined: "15. Given the aforesaid statutory provision and given the fact that the 1996 Act repealed three previous enactments in order that there be speedy disposal of all matters covered by it, it is clear that the statutory policy of the Act is that not only are timelimits set down for disposal of the arbitral proceedings themselves but time-limits have also been set down for Section 34 references to be decided. Equally, in Union of India v. Varindera Constructions Ltd. (2020) 2 SCC 111 : (2020) 1 SCC (Civ) 277, dated 17-9-2018, disposing of SLP (C) No. 23155 of 2013, this Court has imposed the selfsame limitation on first appeals under Section 37 so that there be a timely resolution of all matters which are covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision is conspicuous by its absence in Section 37 of the Arbitration Act, 1996, which alone can be looked at for the purpose of filing appeals against orders setting aside, or refusing to set aside awards under Section 34. Also, what is missed by the impugned judgment [NHPC Ltd. v. Jaiparkash Associates Ltd., 2018 SCC OnLine P&H 1304 : (2019) 193 AIC 839] is the words "under Section 34". Thus, the refusal to set aside an arbitral award must be under Section 34 i.e. after the grounds set out in Section 34 have been applied to the arbitral award in question, and after the Court has turned down such grounds. Admittedly, on the facts of these cases, there was no adjudication under Section 34 of the Arbitration Act, 1996 - all that was done was that the Special Commercial Court at Gurugram allowed an application filed under Section 151 read with Order 7 Rule 10 CPC, determining that the Special Commercial Court at Gurugram had no jurisdiction to proceed further with the Section 34 application, and therefore, such application would have to be returned to the competent court situate at New Delhi." This judgment is determinative of the issue before us as it specifically ruled out appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of delay in filing an appeal is dismissed, whether this would amount to "refusal to set aside an arbitral award" under Section 34 and thus be appealable under Section 37(1)(c) of the Act. In answering this question, this Court referred to Section 37(1) of the Act and stressed the fact that an application for setting aside an award must be in accordance with sub-sections (2) and (3) of Section 34 - See paragraph 9. The Court then set out Section 34(3) and opined: 11. A reading of Section 34(1) would make it clear that an application made to set aside an award has to be in accordance with both sub-sections (2) and (3). This would mean that such application would not only have to be within the limitation period prescribed by sub-section (3), but would then have to set out grounds under sub-sections (2) and/or (2-A) for setting aside such award. What follows from this is that the application itself must be within time, and if not within a period of three months, must be accompanied with an application for condonation of delay, provided it is within a further period of 30 days, this Court having made it clear that Section 5 of the Limitation Act, 1963 does not apply and that any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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