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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 ..... arties are free to agree on the procedure to be followed by an arbitral tribunal in conducting its proceedings - Given that the definition of arbitration in Section 2(1)(a) means any arbitration, whether or not administered by a permanent arbitral institution, when read with Sections 2(6) and 2(8), would make it clear that even interim orders that are passed by Emergency Arbitrators under the rules of a permanent arbitral institution would, on a proper reading of Section 17(1), be included within its ambit. It is significant to note that the words arbitral proceedings are not limited by any definition and thus encompass proceedings before an Emergency Arbitrator, as has been held hereinabove with reference to Section 21 of the Act read with the SIAC Rules. The heart of Section 17(1) is the application by a party for interim reliefs. There is nothing in Section 17(1), when read with the other provisions of the Act, to interdict the application of rules of arbitral institutions that the parties may have agreed to. This being the position, at least insofar as Section 17(1) is concerned, the arbitral tribunal would, when institutional rules apply, include an Emergency Arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. There can be no doubt that the legal fiction created under Section 17(2) for enforcement of interim orders is created only for the limited purpose of enforcement as a decree of the court. To extend this fiction to encompass appeals from such orders is to go beyond the clear intention of the legislature. Mr. Salve s argument in stressing the words under the Code of Civil Procedure in Section 17(2), thus holds no water as a limited fiction for the purpose of enforcement cannot be elevated to the level of a genie which has been released from a statutory provision and which would encompass matters never in the contemplation of the legislature. Appeal provision in the Arbitration Act - HELD THAT:- There ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate Mr Mohit Singh, AOR 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 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 Vedant Kapur, Advocate Mr Shaurya Mittal, Advocate 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 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppreciate the context in which these two questions arise are as follows: 2.1. Proceedings were initiated by the Appellant, Amazon.com NV Investment Holdings LLC [ Amazon ] before the High Court of Delhi under Section 17(2) of the Arbitration Act to enforce the award/order dated 25th October, 2020 of an Emergency Arbitrator, Mr. V.K. Rajah, SC. This order was passed in arbitration proceedings being SIAC Arbitration No. 960 of 2020 commenced by Amazon against Respondents No. 1 to 13, who are described as under: (i) Respondent No.1 Future Retail Limited, India s second-largest offline 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 26th December, 2019, Amazon invested the aforesaid sum of ₹ 1431 crore in FCPL which flowed down to FRL on the very same day. The bone of contention between the parties is that within a few months from the date of this investment, i.e., on 29th August, 2020, Respondents No. 1 to 13 entered into a transaction with the Mukesh Dhirubhai Ambani group which envisages the amalgamation of FRL with the Mukesh Dhirubhai Ambani group, the consequential cessation of FRL as an entity, and the complete disposal of its retail assets in favour of the said group. 2.5. Amazon initiated arbitration proceedings and filed an application 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 furthera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trinity of the principles for grant of interim injunction i.e., prima facie case, irreparable loss and balance of convenience are required to be tested in terms of principles as noted above. Since this Court has held that prima facie the representation of Amazon based on the plea that the resolution dated 29th August, 2020 of FRL is void and that on conflation of the FCPL SHA and FRL SHA, the control that is sought to be asserted by Amazon on FRL is not permitted under the FEMA FDI Rules, without the governmental approvals, this Court finds that FRL has made out a prima facie case in its favour for grant of interim injunction. However, the main tests 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prima facie findings, stayed the operation, implementation, and execution of the Single Judge order dated 2nd February, 2021 till the next date of hearing, and listed the appeal for further hearing on 26th February, 2021. Meanwhile, on 22nd February, 2021, the Supreme Court allowed the amalgamation proceedings pending before the National Company Law Tribunal to continue, but not to culminate in any final order of sanction of scheme of amalgamation. 2.8. On 18th March, 2020, the learned Single Judge passed a detailed judgment giving reasons for an order made under Section 17(2) read with Order XXXIX, Rule 2-A of the Code of Civil Procedure, 1908 [ Code of Civil Procedure ] 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-call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file an affidavit of their assets as on today in Form 16A, Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure within 30 days. Respondent No.1, 2, 12 and 13 are directed to file an additional affidavit in the format of Annexure B-1 and respondents No.3 to 11 are directed to file an additional affidavit in the format of Annexure A-1 to the judgment of M/s Bhandari Engineers Builders Pvt. Ltd. v. M/s Maharia Raj Joint Venture, (supra) along with the documents mentioned therein within 30 days. 195. Show cause notice is hereby issued to respondents No.3 to 13 to show cause why they be not detained in civil prison for a term not exceeding three months under Order XXXIX Rule 2- A(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Arbitration Act. Further observations that prima facie, the agreements are between different parties, and therefore, the group-ofcompanies doctrine cannot be invoked, without any reasoning, again betrays a complete non-application of mind. Since the second impugned order of the Division Bench relies upon this very order to stay even the detailed judgment of the Single Judge, the learned senior counsel argued that the second order, being a reiteration of the first, suffers from the same malady. 3.1. Mr. Subramanium then referred us to Sections 2(1)(a), 2(1)(c), 2(1) (d), 2(6), 2(8) and 19(2) to argue that the Arbitration Act reflects the grundnorm of arbitration as being party autonomy, which is respected by these 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto line with Section 9. He then referred to Section 9(3) to argue that the legislative intent is to obtain interim orders from an arbitral tribunal then constituted so as to decongest courts and free them from the burdens of Section 9 petitions being filed before them. If this is appreciated, then it would be clear that an Emergency Arbitrator s award would be a step in the right direction under institutional rules, furthering this very objective. He also pointed out that by the very same amendment, a non-obstante clause was added to Section 37(1), thereby making it abundantly clear that unless an appeal falls within the four corners of Section 37, the moment an order is passed under the Arbitration Act, no other appeal could 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) made it clear that a party may, during arbitral proceedings, apply to the arbitral tribunal. Even under the SIAC Rules, an Emergency Arbitrator is appointed before the arbitral tribunal is constituted, as is clear from Rule 30 read with Schedule 1. This being the case, an Emergency Arbitrator, not being appointed during arbitral proceedings, falls outside Section 17(1). 6.2. He also contrasted the Arbitration Act with provisions contained in the Singapore, New Zealand, Hong Kong, and English statutes which made it clear that under those statutes, an Emergency Arbitrator s awards were expressly included and could thus be enforced under their provisions. 6.3. Mr. Salve made it clear that the appeal that was filed in the present 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se appeals in favour of the Respondents. First, he argued that the words as if contained in Section 17(2) of the Act contain a legal fiction which, when taken to its logical conclusion, would necessarily mean that enforcement proceedings would be outside the pale of the Arbitration Act and within the confines of the Code of Civil Procedure. Further, he argued that the use of the expression under the Code of Civil Procedure in Section 17(2) is legislation by reference and not by incorporation, leading to the conclusion that it is the Code of Civil Procedure alone under which enforcement takes place. He then reiterated that the expression due regard contained in Section 36(3) is fundamentally different from the expression under the 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the civil court s jurisdiction is ousted and that only what is expressly provided for by the ouster provisions can be given effect to as nothing can be implied therein. He then argued that the learned Single Judge was in a great hurry to decide the case and did not even give sufficient time to the Respondents to file objections to the enforcement application, though he did concede that notes of written arguments, including the objection as to an award by an Emergency Arbitrator being a nullity, were raised before the learned Single Judge. He also cited various judgments to show that this was a case in which the Emergency Arbitrator lacked inherent jurisdiction, as a result of which his clients were justified in ignoring the award passed by 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g its proceedings. 21. Commencement of arbitral proceedings.-Unless otherwise agreed by the parties, the 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. 11. A reading of these provisions would show that an arbitration proceeding can be administered by a permanent arbitral institution. Importantly, Section 2(6) makes it clear that parties are free to authorise any person including an institution to determine issues that arise between the parties. Also, under Section 2(8), party autonomy goes to the extent of an agreement which includes being governed by arbitration rules referred to in the aforesaid agreements. Likewise, under Section 19(2), parties are free 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, a clear distinction between the law which was to operate as the governing law of the agreement and the law which was to govern the arbitration proceedings. Once the provisions of the ICC Rules of Arbitration had been invoked by Devas, the proceedings initiated thereunder could not be interfered with in a proceeding under Section 11 of the 1996 Act. The invocation of the ICC Rules would, of course, be subject to challenge in appropriate proceedings but not by way of an application under Section 11(6) of the 1996 Act. Where the parties had agreed that the procedure for the arbitration would be governed by the ICC Rules, the same would necessarily include the appointment of an Arbitral Tribunal in terms of the arbitration agreement and the said Rules. Arbitration Petition No. 20 of 2011 under Section 11(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 au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part from the plain or grammatical meaning of the expressions and the use of the expressions at the proper places in the agreement. The importance of party autonomy in arbitration and commercial contracts was further delineated in the judgment of Centrotrade Minerals Metal Inc. v. Hindustan Copper Ltd., (2017) 2 SCC 228 [ Centrotrade ] as follows: 38. Party autonomy is virtually the backbone of arbitrations. This Court has expressed this view in quite a few decisions. In two significant passages in Balco [Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2016) 4 SCC 126] this Court dealt with party autonomy from the point of view of the contracting parties and its importance in commercial contracts. In para 5 of the Report, it was observed: (SCC p. 130) 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 dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dural law to be followed but also the substantive law. The choice of jurisdiction is left to the contracting parties. In the present case, the parties have agreed on a two-tier arbitration system through Clause 14 of the agreement and Clause 16 of the agreement provides for the construction of the contract as a contract made in accordance with the laws of India. We see nothing wrong in either of the two clauses mutually agreed upon by the parties. * * * 46. For the present we are concerned only with the fundamental or public policy of India. Even assuming the broad delineation of the fundamental policy of India as stated in Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] we do not find anything fundamentally objectionable in the parties preferring and accepting the two-tier arbitration system. The parties 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 Arbitr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as woven and not merely ironing out creases which were found in the statute. 17. By way of contrast, the present is a case akin to Centrotrade (supra). As has been pointed out in Centrotrade (supra), the parties to the contract, in the present case, by agreeing to the SIAC Rules and the award of the Emergency Arbitrator, have not bypassed any mandatory provision of the Arbitration Act. There is nothing in the Arbitration Act that prohibits contracting parties from agreeing to a provision providing for an award being made by an Emergency Arbitrator. On the contrary, when properly read, various Sections of the Act which speak of party autonomy in choosing to be governed by institutional rules would make it clear that the said rules would apply to govern the rights between the parties, a position which, far from being prohibited by the Arbitration Act, is specifically 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for interim reliefs. There is nothing in Section 17(1), when read with the other provisions of the Act, to interdict the application of rules of arbitral institutions that the parties may have agreed to. This being the position, at least insofar as Section 17(1) is concerned, the arbitral tribunal would, when institutional rules apply, include an Emergency Arbitrator, the context of Section 17 otherwise requiring the context being interim measures that are ordered by arbitrators. The same object and context would apply even to Section 9(3) which makes it clear that the court shall not entertain an application for interim relief once an arbitral tribunal is constituted unless the court finds that circumstances exist which may not render the remedy provided under Section 17 efficacious. Since Section 9(3) and Section 17 form part of one scheme, it is clear that an arbitral 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough negotiations, shall be referred to and finally resolved by arbitration irrespective of the amount in Dispute or whether such Dispute would otherwise be considered justifiable or ripe for resolution by any court. The parties agree that they shall attempt to resolve through good faith consultation, any such Dispute between any of the Parties and such consultation shall begin promptly after a Party has delivered to another Party a written request for such consultation. In the event the Dispute is not resolved by means of negotiation within a period of 30 (thirty) days or such different period mutually agreed between the Parties, such Dispute shall be referred to and finally resolved by Arbitration in accordance with the arbitration rules of the Singapore International Arbitration Centre ( SIAC ), and such rules (the Rules ) as may be modified by the provisions of this Section 25 (Governing 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. SCHEDULE 1 EMERGENCY ARBITRATOR 1. A party that wishes to seek emergency interim relief may, concurrent with or following the filing of a Notice of Arbitration but prior to the constitution of the Tribunal, file an application for emergency interim relief with the Registrar. The party shall, at the same time as it files the application for emergency interim relief, send a copy of the application to all other parties. The application for emergency interim relief shall include: a. the nature of the relief sought; b. the reasons why the party is entitled to such relief; and c. a statement certifying that all other parties have been provided with a copy of the application or, if not, an explanation of the steps taken in good faith to provide a copy or notification to all other parties. * * * 3. The President shall, if he determines that SIAC should accept the application for emergency interim relief, seek 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 shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interim order or Award immediately and without delay. The parties also irrevocably waive their rights to any form of appeal, review or recourse to any State court or other judicial authority with respect to such Award insofar as such waiver may be validly made. 25. A reading of the aforesaid Rules indicates that even before an arbitral Tribunal is constituted under the Rules, urgent interim reliefs can be granted by what is termed as an Emergency Arbitrator . An Emergency Arbitrator is defined by Rule 1.3 of these Rules as meaning an arbitrator appointed in accordance with paragraph 3 of Schedule 1. Under paragraph 7 of Schedule 1, the Emergency Arbitrator has all the powers vested in the arbitral tribunal pursuant to SIAC Rules, including the authority to rule on his own jurisdiction. Importantly, under paragraph 8 of Schedule 1 to the SIAC Rules, the Emergency Arbitrator shall have the power to order such interim relief that he deems necessary, and is to give summary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 16 10. In Section 16, After sub-section (6), insert sub-section (7) The Arbitral Tribunal shall have the power to make an award or give a ruling notwithstanding that the dispute before it involves a serious question of law, complicated questions of fact or allegations of fraud, corruption, etc. [Note: This amendment is proposed in the light of the Supreme Court decisions (e.g. N. Radhakrishnan v. Maestro Engineers [N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72 : (2010) 1 SCC (Civ) 12]) which appear to denude an Arbitral Tribunal of the power to decide on issues of fraud, etc.] 28. Mr Saurabh Kirpal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the reasons given in the said paragraph, we are of the view that the development of the law by this Court cannot be thwarted merely because a certain provision recommended in a Law Commission Report is not enacted by Parliament. Parliament may have felt, as was mentioned by Lord Reid in British Railways Board v. Herrington [British Railways Board v. Herrington, 1972 AC 877 : 1972 2 WLR 537 (HL)] , that it was unable to make up its mind and instead, leave it to the courts to continue, case by case, deciding upon what should constitute the fraud exception. [This case is referred to in Lord Brandon s judgment in La Pintada, 1985 AC 104 : (1984) 3 WLR 10 (HL) and distinguished at AC p. 130 of his judgment.] Parliament may also have thought that Section 16(7), proposed by the Law Commission, is clumsily worded as it speaks of a serious question of law, complicated questions of fact, or allegations of fraud, corruption, etc. N. Radhakrishnan did not lay down that serious questions of law or complicated questions of fact are non-arbitrable. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the High Court be enforceable in the same manner as an order or direction of the Court. Given that international practice is in favour of enforcing emergency awards (Singapore, Hong Kong and the United Kingdom all permit enforcement of emergency awards), it is time that India permitted the enforcement of emergency awards in all arbitral proceedings. This would also provide legislative support to rules of arbitral institutions that presently provide for emergency arbitrators (See Dennis Nolan and Roger Abrams, Arbitral Immunity , Berkeley Journal of Employment and Labour Law, Vol. 11 Issue 2 (1989), pp.228 266). For this purpose, the recommendation made by the LCI in its 246th Report may be adopted. 29. The Delhi High Court judgment in Raffles Design International India Pvt. Ltd. v. Educomp Professional Education Ltd., 2016 SCC OnLine Del 5521 : (2016) 234 DLT 349 dealt with an award by an Emergency Arbitrator in an arbitration seated outside India (as was mentioned in Srikrishna Committee Report). What is of significance is that the said Report laid down that it is possible to interpret Section 17(2) of the Act to enforce emergency awards for arbitrations seated in Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich may not render the remedy provided under Section 17 efficacious. 32. In essence, what is provided by the SIAC Rules and the other institutional rules, is reflected in Sections 9(2) and 9(3) so far as interim orders passed by courts are concerned. The introduction of Sections 9(2) and 9(3) would show that the objective was to avoid courts being flooded with Section 9 petitions when an arbitral tribunal is constituted for two good reasons (i) that the clogged court system ought to be decongested, and (ii) that an arbitral tribunal, once constituted, would be able to grant interim relief in a timely and efficacious manner. 33. Similarly, the 246th Law Commission Report recommended the amendment of Section 17 as follows: Amendment of Section 17 11. In section 17 * * * (vi) In sub-section (1), after sub-clause (d) , insert sub-clause (e) such other interim measure of protection as may appear to the Arbitral Tribunal to be just and convenient, 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. [NOTE: This is to provide the arbitral t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n an Emergency Award proceeding, having agreed to institutional rules made in that regard, that thereafter it will not be bound by an Emergency Arbitrator s ruling. As we have seen hereinabove, having agreed to paragraph 12 of Schedule 1 to the SIAC Rules, it cannot lie in the mouth of a party to ignore an Emergency Arbitrator s award by stating that it is a nullity when such party expressly agrees to the binding nature of such award from the date it is made and further undertakes to carry out the said interim order immediately and without delay. 37. However, Mr. Viswanathan argued that an Emergency Arbitrator under the SIAC Rules is not an independent judicial body like an arbitral tribunal constituted under the very Rules, and referred to and relied upon Rules 3, 9, and 10 to buttress this proposition. Rule 3 merely states that the President may appoint an Emergency Arbitrator if he determines that the SIAC should accept the application for emergency interim relief. Once the Emergency Arbitrator enters upon the reference, he is given all the powers of an arbitral tribunal under Rule 7 and is to decide completely independently of any other administrative authority under the SIA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angh, (2016) 9 SCC 44 (at paragraphs 54 and 55). As a matter of fact, in Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd., (1997) 3 SCC 443, this Court has unequivocally held that even if an order is later set aside as having been passed without jurisdiction, for the period of its subsistence, it is an order that must be obeyed. This Court held: 15. The next thing to be noticed is that certain interim orders were asked for and were granted by the Civil Court during this period. Would it be right to say that violation of and disobedience to the said orders of injunction is not punishable because it has been found later that the Civil Court had no jurisdiction to entertain the suit. Mr Sorabjee suggests that saying so would be subversive of the Rule of Law and would seriously erode the majesty and dignity of the courts. It would mean, suggests the learned counsel, that it would be open to the defendants-respondents to decide for themselves whether the order was with or without jurisdiction and act upon that belief. This can never be, says the learned counsel. He further suggests that if any party thinks that an order made by the Civil Court is without jurisdiction or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to the jurisdiction is raised, the court does not become helpless forthwith - nor does it become incompetent to grant the interim relief. It can. At the same time, it should also decide the objection to jurisdiction at the earliest possible moment. This is the general principle and this is what Section 9-A reiterates. Take this very case. The plaintiff asked for temporary injunction. An ad interim injunction was granted. Then the defendants came forward objecting to the grant of injunction and also raising an objection to the jurisdiction of the court. The court overruled the objection as to jurisdiction and made the interim injunction absolute. The defendants filed an appeal against the decision on the question of jurisdiction. While that appeal was pending, several other interim orders were passed both by the Civil Court as well as by the High Court. Ultimately, no doubt, the High Court has found that the Civil Court had no jurisdiction to entertain the suit but all this took about six years. Can it be said that orders passed by the Civil Court and the High Court during this period of six years were all non est and that it is open to the defendants to flout them merrily, with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... say that the Civil Court had no jurisdiction to pass interim orders or interim injunction, as the case may be, pending decision on the question of jurisdiction. The orders made were within the jurisdiction of the Court and once this is so, they have to be obeyed and implemented. It is not as if the defendants are being sought to be punished for violations committed after the decision of the High Court on the question of jurisdiction of the Civil Court. Here the defendants are sought to be punished for the disobedience and violation of the order of injunction committed before the decision of the High Court in Vishanji Virji Mepani [AIR 1996 Bom 366]. According to Section 9-A, the Civil Court and the High Court did have the power to pass interim orders until that decision. If they had that power, they must also have the power to enforce them. In the light of the said provision, it cannot also be held that those orders could be enforced only till the said decision but not thereafter. The said decision does not render them (the interim orders passed meanwhile) either non est or without jurisdiction. Punishing the defendants for violation of the said orders committed before the said de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing orders under the provisions of Section 104, namely:- * * * (r) an order under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order XXXIX; 43. In order to answer this question, it is important to advert to Sections 9, 17, and 37 of the Arbitration Act. Section 9(1) reads as follows: 9. Interim measures, etc. by Court.-(1) A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a Court:- (i) for the appointment of a guardian for a minor or a 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 amount in dispute in the arbitration; (c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order of the court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were an order of the court. Section 37, within the four corners of which appeals against orders are to be made under the Arbitration Act, reads as follows: 37. Appealable orders.-(1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie from the following orders (and from no others) to the court authorised by law to hear appeals from original decrees of the Court passing the order, namely:- (a) refusing to refer the parties to arbitration under Section 8; (b) granting or refusing to grant any measure under Section 9; (c) setting aside or refusing to set aside an arbitral award under Section 34. (2) An appeal shall also lie to a court from an order of the arbitral tribunal- (a) accepting the plea referred to in sub-section (2) or sub-section (3) of Section 16; or (b) granting or refusing to grant an interim measure under Section 17. (3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above, the language of the last part of Section 9(1) clearly refers to Section 94 of the Code of Civil Procedure read with Order XXXIX thereof. Section 94 of the Code of Civil Procedure reads as follows: 94. Supplemental proceedings.-In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,- (a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison; (b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property; (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold; (d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property; (e) make such other interlocutory orders as may appear to the Court to be just and convenient. Order XXXIX, Rules 1, 2, and 2-A read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for a term not exceeding three months, unless in the meantime the Court directs his release. (2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto. Prior to the Code of Civil Procedure (Amendment) Act, 1976 [ 1976 Amendment Act ], disobedience of an injunction or breach of any of its terms was enforced under sub-rules (3) and (4) of Order XXXIX, Rule 2 as follows: 2. Injunction to restrain repetition or continuance of breach.- * * * (3) In case of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release. (4) No attachment under this rule shall remain in force for more than one year, at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such order. While considering an application under Order 39 Rule 2-A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the order , on surmises, suspicions and inferences. The power under Rule 2-A should be exercised with great caution and responsibility. He also relied upon the judgment of U.C. Surendranath v. Mambally s Bakery, (2019) 20 SCC 666, and paragraph 7 in particular, which states: 7. For finding a person guilty of wilful disobedience of the order under Order 39 Rule 2-A CPC there has to be not mere disobedience but it should be a wilful disobedience . The allegation of wilful disobedience being in the nature of criminal liability, the same has to be proved to the satisfaction of the court that the disobedience was not mere disobedience but a wilful disobedience . As pointed out earlier, during the second visit of the Commissioner to the appellant's shop, tea cakes and masala cakes were being sold without any wrappers/labels. The only thing which the Commissioner has noted is that nonremoval of the hoarding displayed in front of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Wakf Board, Madras v. Abdul Azeez Sahib, AIR 1968 Mad. 79, the expression relating to contained in Section 57(1) of the Wakf Act, 1954 fell for consideration before the Madras High Court. The High Court held: 8. We have no doubt whatever that the learned Judge, (Kailasam, J.), was correct in his view that even the second suit has to be interpreted as within the scope of the words employed in S. 57(1) namely, In every suit or proceeding relating to title to Wakf property . There is ample judicial authority for the view that such words as relating to or in relation to are words of comprehensiveness which might both have a direct significance as well as an indirect significance, depending on the context. They are not words of restrictive content and ought not to be so construed. The matter has come up for judicial determination in more than one instance. The case in Compagnie Financiec Dae Pacifique v. Peruvian Guano Co, is of great interest, on this particular aspect and the judgment of Brett, L.J., expounds the interpretation of O. 31, R. 12 of the Rules of the Supreme Court, 1875, in the context of the phrase material to any matter in question in the action . Bre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows: 2. This Section 85 of the new Act we reproduce at the outset: 85. Repeal and savings.-(1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed. (2) Notwithstanding such repeal,- (a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force; (b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act. The expression in relation to appears in Section 85(2)(a). The question which arose before the Court, and which was answered by the Court, was whether enforcement proceedings would be included within the ambit of Section 85(2)(a). Holding that they did, this Court opined: 32. We are, therefore, of the opinion that it woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to vacate the portion in his occupation. The word any has the following meaning: some; one of many; an indefinite number. One indiscriminately or whatever kind or quantity. Word any has a diversity of meaning and may be employed to indicate all or every as well as some or one and its meaning in a given statute depends upon the context and the subject-matter of the statute. It is often synonymous with either , every or all . Its generality may be restricted by the context; (Black s Law Dictionary, 5th Ed.) 19. Unless the legislature had intended that both classes of tenants can be asked to vacate by the Rent Controller for providing the landlord additional accommodation, be it for residential or non-residential purposes, it would not have used the word any instead of using the letter a to denote a tenant. Similarly, in Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243, this Court, while construing the word service under the Consumer Protection Act, 1986, held as follows: 4. What is the meaning of the word service ? Does it extend to deficiency in the building of a house or flat? Can a complaint be filed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exist always. The expression at any time finding place in Condition 6 has to mean, in the context in which it has been used, at any point of time , the effect of which is that the required length must be maintained all the time. The accomplishment of object of the Act, one of which is safety in the mines, requires taking of such a view, especially in the backdrop of repeated mine disasters which have been taking, off and on, heavy toll of lives of the miners. It may be pointed out that the word any has a diversity of meaning and in Black's Law Dictionary it has been stated that this word may be employed to indicate all or every , and its meaning will depend upon the context and subject-matter of the statute . A reference to what has been stated in Stroud's Judicial Dictionary Vol. I, is revealing inasmuch as the import of the word any has been explained from pp. 145 to 153 of the 4th Edn., a perusal of which shows it has different connotations depending primarily on the subject-matter of the statute and the context of its use. A Bench of this Court in Lucknow Development Authority v. M.K. Gupta [(1994) 1 SCC 243], gave a very wide meaning to this word finding pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach the Arbitral Tribunal rather than await orders from a court. The efficacy of Section 17 is however, seriously compromised given the lack of any suitable statutory mechanism for the enforcement of such interim orders of the Arbitral Tribunal. 47. In Sundaram Finance Ltd. [Sundaram Finance Ltd. v. NEPC India Ltd., (1999) 2 SCC 479], the Supreme Court observed that though Section 17 gives the Arbitral Tribunal the power to pass orders, the same cannot be enforced as orders of a court and it is for this reason only that Section 9 gives the court power to pass interim orders during the arbitration proceedings. Subsequently, in Army Welfare Housing Organisation v. Sumangal Services (P) Ltd., (2004) 9 SCC 619, the Court had held that under Section 17 of the Act no power is conferred on the Arbitral Tribunal to enforce its order nor does it provide for judicial enforcement thereof. 48. In the face of such categorical judicial opinion, the Delhi High Court attempted to find a suitable legislative basis for enforcing the orders of the Arbitral Tribunal under Section 17 in Sri Krishan v. Anand, 2009 SCC OnLine Del 2472 : (2009) 112 DRJ 657 : (2009) 3 Arb LR 447 [followed in In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al cannot itself enforce its orders, which can only be done by a court with reference to the Code of Civil Procedure. But the court, when it acts under Section 17(2), acts in the same manner as it acts to enforce a court order made under Section 9(1). If this is so, then what is clear is that the arbitral tribunal s order gets enforced under Section 17(2) read with the Code of Civil Procedure. 57. There is no doubt that Section 17(2) creates a legal fiction. This fiction is created only for the purpose of enforceability of interim orders made by the arbitral tribunal. To extend it to appeals being filed under the Code of Civil Procedure would be a big leap not envisaged by the legislature at all in enacting the said fiction. As a matter of fact, this Court, in Paramjeet Singh Patheja v. ICDS Ltd., (2006) 13 SCC 322, dealt with Section 36 of the Arbitration Act as it stood immediately before the 2015 Amendment Act (Section 36 as it then stood is the mirror image of Section 36(1) post amendment). In answering the question raised before it as to whether an arbitration award can be said to be a decree for the purpose of Section 9 of the Presidency Towns Insolvency Act, 1909, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make one applicable in respect of the other. The words as if create a legal fiction. By it, when a person is deemed to be something, the only meaning possible is that, while in reality he is not that something, but for the purposes of the Act of legislature he is required to be treated that something, and not otherwise. It is a well-settled rule of interpretation that, in construing the scope of a legal fiction, it would be proper and even necessary to assume all those facts on the basis of which alone such fiction can operate. The words as if in fact show the distinction between two things and, such words must be used only for a limited purpose . They further show that a legal fiction must be limited to the purpose for which it was created . [Vide Radhakissen Chamria v. Durga Prosad Chamria [(1939-40) 67 IA 360 : (1940) 52 LW 647 : AIR 1940 PC 167], CIT v. S. Teja Singh [AIR 1959 SC 352], Ram Kishore Sen v. Union of India [AIR 1966 SC 644], Sher Singh v. Union of India [(1984) 1 SCC 107 : AIR 1984 SC 200], State of Maharashtra v. Laljit Rajshi Shah [(2000) 2 SCC 699 : 2000 SCC (Cri) 533 : AIR 2000 SC 937], Paramjeet Singh Patheja v. ICDS Ltd. [(2006) 13 SCC 322 at p. 341, pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in Union of India v. Vedanta Ltd., (2020) 10 SCC 1, this Court held that a petition to enforce a foreign award, made under Section 49 of the Arbitration Act, is governed by Article 137 of the Limitation Act, 1963 and not by Article 136 of the said Act. This conclusion was arrived at as follows: 69. Section 36 of the Arbitration Act, 1996 creates a statutory fiction for the limited purpose of enforcement of a domestic award as a decree of the court, even though it is otherwise an award in an arbitral proceeding [Umesh Goel v. H.P. Coop. Group Housing Society Ltd., (2016) 11 SCC 313 : (2016) 3 SCC (Civ) 795]. By this deeming fiction, a domestic award is deemed to be a decree of the court [Sundaram Finance Ltd. v. Abdul Samad, (2018) 3 SCC 622 : (2018) 2 SCC (Civ) 593], even though it is as such not a decree passed by a civil court. The Arbitral Tribunal cannot be considered to be a court , and the arbitral proceedings are not civil proceedings. The deeming fiction is restricted to treat the award as a decree of the court for the purposes of execution, even though it is, as a matter of fact, only an award in an arbitral proceeding. In Paramjeet Singh Patheja v. ICD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mma, (1976) 4 SCC 634] held that the phrase any other application in Article 137 cannot be interpreted on the principle of ejusdem generis to be applications under the Civil Procedure Code. The phrase any other application used in Article 137 would include petitions within the word applications , filed under any special enactment. This would be evident from the definition of application under Section 2(b) of the Limitation Act, which includes a petition. Article 137 stands in isolation from all other Articles in Part I of the Third Division of the Limitation Act, 1963. * * * 77. The application under Sections 47 and 49 for enforcement of the foreign award, is a substantive petition filed under the Arbitration Act, 1996. It is a well-settled position that the Arbitration Act is a self-contained code. [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178; Kandla Export Corpn. v. OCI Corpn., (2018) 14 SCC 715 : (2018) 4 SCC (Civ) 664; Shivnath Rai Harnarain (India) Co. v. Glencore Grain Rotterdam, 2009 SCC OnLine Del 3564 : (2009) 164 DLT 197; Usha Drager (P) Ltd. v. Dragerwerk AG, 2009 SCC OnLine Del 2975 : (2010) 170 DLT 628; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement, we say nothing, leaving the question open to be argued on the facts of a future case. 62. Mr. Salve then read the provisions of the New Zealand Arbitration Act, 1996, the Hong Kong Arbitration Ordinance (Cap. 209), the Singapore Arbitration Act, 2001 as well as the Singapore International Arbitration Act, 1994, and the English Arbitration Act, 1996 to argue that in all the aforesaid legislations, awards passed by an Emergency Arbitrator were expressly included with varying provisions as to their enforcement. A contrast of these legislations with the provisions of the Indian Arbitration Act, again, does not take us very far, given the fact that we have, on a proper interpretation of the said Act, held that an award/order by an Emergency Arbitrator would be covered by Section 17 of the Arbitration Act, when properly read with other provisions of the Act. 63. Mr. Salve and Mr. Viswanathan then argued that Section 36(1), which is a pari materia provision with Section 17(2), must be contrasted with the provisions of Section 36(3). They argued that there is a basic difference between having due regard to the provisions for grant of stay of a money decree under the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction over the arbitration proceedings for execution and then to obtain transfer of the decree or whether the award can be straightaway filed and executed in the Court where the assets are located is required to be settled in the present appeal. A Division Bench of this Court, after setting out the relevant provisions of the Code of Civil Procedure and the Arbitration Act, then held: 14. The aforesaid provision would show that an award is to be enforced in accordance with the provisions of the said Code in the same manner as if it were a decree. It is, thus, the enforcement mechanism, which is akin to the enforcement of a decree but the award itself is not a decree of the civil court as no decree whatsoever is passed by the civil court. It is the Arbitral Tribunal, which renders an award and the tribunal does not have the power of execution of a decree. For the purposes of execution of a decree the award is to be enforced in the same manner as if it was a decree under the said Code. The judgment ultimately turned on Section 32 of the Arbitration Act, which made it clear that after arbitral proceedings had been terminated, Section 42 of the Act would not apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from that contained for enforcement of interim orders under Section 17. 69. We now come to the appeal provision in the Arbitration Act. There can be no doubt that Section 37 is a complete code so far as appeals from orders and awards made under the Arbitration Act are concerned. This has further been strengthened by the addition of the non-obstante clause by the Arbitration and Conciliation (Amendment) Act, 2019. 70. This Court, in Kandla Export Corporation v. OCI Corporation, (2018) 14 SCC 715 [ Kandla Export ], held in the context of a Section 50 appeal as follows: 20. Given the judgment of this Court in Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] , which Parliament is presumed to know when it enacted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section 50 is a provision contained in a self-contained code on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in para 89 of Fuerst Day Lawson [Fuerst Day Law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, mean that if an appeal lies under the said provision, then alone would Section 13(1) of the Commercial Courts Act be attracted as laying down the forum which will hear and decide such an appeal. 23. In fact, in Sumitomo Corpn. v. CDC Financial Services (Mauritius) Ltd. [Sumitomo Corpn. v. CDC Financial Services (Mauritius) Ltd., (2008) 4 SCC 91], this Court adverted to Section 50 of the Arbitration Act and to Sections 10(1)(a) and 10-F of the Companies Act, 1956, to hold that once an appeal is provided for in Section 50, the Court authorised by law to hear such appeals would then be found in Sections 10(1)(a) and 10- F of the Companies Act. The present case is a parallel instance of Section 50 of the Arbitration Act providing for an appeal, and Section 13(1) of the Commercial Courts Act providing the forum for such appeal. Only, in the present case, as no appeal lies under Section 50 of the Arbitration Act, no forum can be provided for. * * * 25. What is important to note is that it is Section 50 that provides for an appeal, and not the letters patent, given the subject-matter of appeal. Also, the appeal has to be adjudicated within the parameters of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transferred from a court which had no jurisdiction to a court which had jurisdiction. In deciding this question, this Court referred copiously to Kandla Export (supra) in paragraph 12. It then went on to decide: 13. Given the fact that there is no independent right of appeal under Section 13(1) of the Commercial Courts Act, 2015, which merely provides the forum of filing appeals, it is the parameters of Section 37 of the Arbitration Act, 1996 alone which have to be looked at in order to determine whether the present appeals were maintainable. Section 37(1) makes it clear that appeals shall only lie from the orders set out in sub-clauses (a), (b) and (c) and from no others. The pigeonhole that the High Court in the impugned judgment [NHPC Ltd. v. Jaiparkash Associates Ltd., 2018 SCC OnLine P H 1304 : (2019) 193 AIC 839] has chosen to say that the appeals in the present cases were maintainable is sub-clause (c). According to the High Court, even where a Section 34 application is ordered to be returned to the appropriate court, such order would amount to an order refusing to set aside an arbitral award under Section 34 . 14. Interestingly, under the proviso to Section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pite Section 17 being amended by the same Amendment Act, by making Section 17(1) the mirror image of Section 9(1) as to the interim measures that can be made, and by adding Section 17(2) as a consequence thereof, significantly, no change was made in Section 37(2) (b) to bring it in line with Order XLIII, Rule 1(r). The said Section continued to provide appeals only from an order granting or refusing to grant any interim measure under Section 17. There can be no doubt that granting or refusing to grant any interim measure under Section 17 would only refer to the grant or non-grant of interim measures under Section 17(1)(i) and 17(1) (ii). In fact, the opening words of Section 17(2), namely, subject to any orders passed in appeal under Section 37 also demonstrates the legislature s understanding that orders that are passed in an appeal under Section 37 are relatable only to Section 17(1). For example, an appeal against an order refusing an injunction may be allowed, in which case subsection (2) of Section 17 then kicks in to enforce the order passed in appeal. Also, the legislature made no amendment to the granting or refusing to grant any measure under Section 9 to bring it in li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would certainly fall within Section 37(1)(c). The aforesaid reasoning is strengthened by the fact that under Section 37(2)(a), an appeal lies when a plea referred to in subsection (2) or (3) of Section 16 is accepted. This would show that the legislature, when it wished to refer to part of a section, as opposed to the entire section, did so. Contrasted with the language of Section 37(1)(c), where the expression under Section 34 refers to the entire section and not to Section 34(2) only, the fact that an arbitral award can be refused to be set aside for refusal to condone delay under Section 34(3) gets further strengthened. Unlike the language of Section 34, a literal reading of Section 17 would show that the grant or non-grant of interim measures under Section 37(2) (b) refers only to Section 17(1) of the Act. Also, in the context of Section 37(2)(b), the entirety of Section 17 was referred to when Sections 17 and 37 were first enacted in 1996. It is only by the 2015 Amendment Act that Section 17 was bifurcated into two sub-sections. What is significant in this context is that no corresponding amendment was made to Section 37(2)(b) to include within its scope the amended S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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