# M/S Moksh Innovations Inc.Lko v. E City Property Management & Services (P) Ltd. New Delhi & Ors

- **Citation:** (2024) 5 ILRA 1489
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-08
- **Case number:** Special Appeal No. 266 of 2024
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-moksh-innovations-inc-lko-v-e-city-property-management-services-p-ltd-new-51954
- **Pages:** 4

## Headnote

(A) Arbitration Law - The Allahabad High
Court Rules, 1952 - Chapter VIII Rule 5 -
special
appeal
-
Maintainability
-
Arbitration and Conciliation Act, 1996 -
Section 11(7) - Bar on appeal against
decision of High Court - Not affected by
Amendment Act, 2019, as notification not
issued for omission of Section 11(7).

Appellant filed a special appeal against the
judgment of a Single Judge in an arbitration
matter - respondents raised a preliminary
objection - appeal was not maintainable due to
the bar under Section 11(7) of the Arbitration and
Conciliation Act, 1996 - court criticized appellant
for
raising
a
ground
that
was
"highly
objectionable" - not raised earlier, and for not
informing the Single Judge about a relevant
fact(Para - 4,9,10)

HELD: - Special appeal was dismissed as not
maintainable due to the bar under Section 11(7)
of the Arbitration and Conciliation Act, 1996.
Amendment omitting Section 11(7) had not been
notified, so the bar still existed. High Court Rules
cannot override statutory bar. Left open for the
appellant to pursue other remedies as may be
permissible in law.(Para -11,12,13)

Special
Appeal
dismissed
as
not
maintainable. ( E-7)

## Text

5 All. M/S Moksh Innovations Inc. Lko. Vs. E City Property Management & Services (P) Ltd.
 New Delhi & Ors.
1489
authority should have considered the same
in the light of the Rules 2001 and thereafter
should have taken a considered decision and
the consideration had to be in accordance
with the Rules 2001 and the law on the
subject, which has not been done as already
discussed hereinabove, and as it is not the
case of the opposite parties at least as of now
that there was no vacancy existing on the
date of coming into force of the Rules 2001
against which the petitioner could have been
considered, therefore, while we set aside the
judgment of the Writ Court, we also set aside
the order impugned in the writ petition out
of which this appeal arises and direct the
concerned respondent no.3 to take a fresh
decision in the matter in the light of the
observations made hereinabove.

21. The writ petition and appeal are
allowed in the aforesaid terms.
----------
(2024) 5 ILRA 1489
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.05.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal No. 266 of 2024

M/S Moksh Innovations Inc.Lko.
 ...Appellant
Versus
E City Property Management & Services (P)
Ltd. New Delhi & Ors. ...Respondents

Counsel for the Appellant:
Desh Mitra Ananad

Counsel for the Respondent:
Pushpila Bisht

(A) Arbitration Law - The Allahabad High
Court Rules, 1952 - Chapter VIII Rule 5 -
special
appeal
-
Maintainability
-
Arbitration and Conciliation Act, 1996 -
Section 11(7) - Bar on appeal against
decision of High Court - Not affected by
Amendment Act, 2019, as notification not
issued for omission of Section 11(7).

Appellant filed a special appeal against the
judgment of a Single Judge in an arbitration
matter - respondents raised a preliminary
objection - appeal was not maintainable due to
the bar under Section 11(7) of the Arbitration and
Conciliation Act, 1996 - court criticized appellant
for
raising
a
ground
that
was
"highly
objectionable" - not raised earlier, and for not
informing the Single Judge about a relevant
fact(Para - 4,9,10)

HELD: - Special appeal was dismissed as not
maintainable due to the bar under Section 11(7)
of the Arbitration and Conciliation Act, 1996.
Amendment omitting Section 11(7) had not been
notified, so the bar still existed. High Court Rules
cannot override statutory bar. Left open for the
appellant to pursue other remedies as may be
permissible in law.(Para -11,12,13)

Special
Appeal
dismissed
as
not
maintainable. ( E-7)

(Delivered by Hon'ble Rajan Roy, J. &
Hon'ble Om Prakash Shukla, J.)

1. Heard Mr. Desh Mitra Anand,
learned counsel for the appellant and Ms.
Pushpila Bisht, learned counsel for the
respondents.

2. There is a delay of 135 days as on
01.05.2024 in filing the special appeal.
Counsel for the respondents has no
objection in application for condonation of
delay being allowed, therefore, we allow the
application for condonation of delay and
condone the delay in filing the special
appeal.

3. This special appeal has been filed
under Chapter VIII Rule 5 of the Allahabad
1490 INDIAN LAW REPORTS ALLAHABAD SERIES
High Court Rules, 1952 (hereinafter referred
as 'High Court Rues') challenging the
judgment of learned Single Judge of this
Court
dated
18.11.2023
passed
in
Arbitration and Conciliation Application
under Section 11 (4) No. 3 of 2022 (M/s
Moksh Innovations Inc. Thru. Manager vs.
E-City Property Management and Services
(P) Ltd. and others) as also the order dated
12.01.2024 passed by the said Single Judge
Bench in Civil Misc. Review Application
No. 178 of 2023 (M/s Moksh Innovations
Inc. Thru Manager Jitendra Singh Bisht
vs. E-City Property Management and
Services Pvt. Ltd.).

4. At the very outset, Ms. Pushpila
Bisht, learned counsel for the respondents
invited our attention to ground (h). Without
saying much, we have perused the same. We
have also seen the averment made in support
of the application for interim relief and an
order dated 16.02.2009 passed by a Division
Bench of this Court in First Appeal From
Order No. 718 of 2008. Apart from the fact
that the wording of ground (h) is highly
objectionable, we have summoned the
scanned copy of records of First Appeal
From Order No. 718 of 2008 and we find
that the learned Single Judge who has passed
the impugned judgments/orders had not
signed the vakalatnama on behalf of the
appellant herein who was the appellant in
First Appeal From Order No. 718 of 2008.
The vakalatnama is signed by Mr. B.K.
Saxena, Advocate. The learned Judge at the
relevant time was junior to Mr. Saxena. Mr.
Saxena had filed his vakalatnama and
thereafter moved an application for recall of
some order in the said First Appeal From
Order No. 718 of 2008 and on 16.02.2009
the learned Single Judge who at that time
was an Advocate holding the brief of his
senior informed a fact to the Division
Bench, nothing more to seek recall of an
order. There is no other pleading nor any
material on record of this appeal that he was
the counsel for appellant in his independent
capacity in that appeal or in any other
proceedings on behalf of the appellant.

5. Most important, when we
confronted the learned counsel for the
appellant as to whether at any point of time
during pending of Application under Section
11 (4) of the Arbitration and Conciliation
Act, 1996 (hereinafter referred as 'Act
1996') the said order dated 16.02.2009 and
the aforesaid fact was brought to the notice
of the learned Single Judge, he submitted
that this was not brought to the notice
because the appellant himself was not aware
of this fact during pendency of the said
proceedings.

6. We find that against impugned
judgment dated 18.11.2023 a review
application was filed, but, we do not find
any such ground in the said review
application nor any such averment in any
affidavit or application filed along with it
informing the learned Single Judge about
the said fact. The learned counsel for the
appellant says that this fact came to the
knowledge of the appellant only after
decision in the review application. If it is so,
then, how the learned Single Judge could
have known that 15 years ago he had been
holding the brief of his senior and had made
some mention before the Division Bench in
an application for recall in First Appeal
From Order No. 718 of 2008 filed by the
appellant herein. In these circumstances it is
highly unjust to make such an averment as
has been made in ground (h) and the
affidavit in support of the interim relief.

7. One could understand if this fact
was brought to the notice of the learned
Single Judge and then an order had been
5 All. M/S Moksh Innovations Inc. Lko. Vs. E City Property Management & Services (P) Ltd.
 New Delhi & Ors.
1491
passed on merits. Even otherwise, the
learned Single Judge did not appear in his
independent capacity but was associated
with the counsel who had filed his
vakalatnama and only as a junior lawyer he
appeared and made a statement before the
Division Bench.

8. The only reason we have narrated
these facts is that in our view it is unfair to
expect the learned Single Judge to
remember that he had by chance appeared in
some matter that too on behalf of his Senior
in an application for recall and had informed
the Division Bench in the aforesaid First
Appeal From Order No. 718 of 2008 15
years ago in an appeal filed by the appellant
that some proceedings had already been
initiated elsewhere and then to recuse
himself from hearing of the Application
under Section 11 (4) of the Act 1996, 15
years thereafter, without being informed
about the said fact. It was the duty, if at all the
appellant felt that the matter should not have
been heard by the said learned Single Judge, to
inform him about the said fact, but, it seems
that
having
contested
the
matter
unsuccessfully before the learned Single
Judge this idea came to the appellant only
thereafter. Even in the review application this
fact was not mentioned. Although a second
review is not maintainable but, in these
circumstances, if the appellant was serious
about this objection, he could have filed an
application for recall of the impugned
judgment informing the learned Judge about
the aforesaid fact but, even this has not been
done, instead, uncalled for language has been
used in ground (h) of this appeal. The only
reason we have mentioned all this is because
of manner in which the ground raised in this
appeal has been phrased.

9. We say no more on this issue, as,
a preliminary objection has been raised by
Ms. Pushpila Bisht, learned counsel for the
respondents that the Special Appeal is not
maintainable on account of the bar in view
of Section 11(7) of the Act 1996 which reads
as under:

"(7) A decision on a matter
entrusted by sub-section (4) or sub-section
(5) or sub-section (6) to the Supreme Court
or, as the case may be, the High Court or the
person or institution designated by such
Court is final and no appeal including
Letters Patent Appeal shall lie against such
decision."

10. In response, learned counsel for
the appellant says that the appeal is
maintainable under Chapter VIII Rule 5 of
the High Court Rules, as, it does not fall in
any
of
the
exclusionary
categories
mentioned therein. As regards Section 11 (7)
of the Act 1996, he says that the said
provision has been omitted and, therefore,
the bar in maintaining a special appeal
which is analogous to Letters Patent Appeal
is no longer in existence.

11. However, we find that as per the
Arbitration and Conciliation (Amendment)
Act,
2019
(hereinafter
referred
as
'Amending Act 2019') (Act No. 33 of 2019)
the same was enacted to amend the Act
1996. As per Section 1 (2) save as otherwise
provided in this Act, it shall come into force
on such date as the Central Government
may, by notification in the Official Gazette,
appoint and different dates may be
appointed for different provisions of this Act
and any reference in any such provision to
the commencement of this Act shall be
construed as a reference to the coming into
force of that provision. Now, Section 11 of
the Act 1996 was amended omitting subSection (7) of Section 11 thereof vide
Section 3 of the Amending Act 2019. A
1492 INDIAN LAW REPORTS ALLAHABAD SERIES
notification dated 30.08.2019 was issued by
the Ministry of Law and Justice in exercise
of the powers conferred by sub-Section (2)
of Section 1 of the Amending Act 2019 by
which 30.08.2019 was appointed as the date
on which the provisions contained in
Section 1; Sections 4 to 9 (both inclusive);
Sections 11 to 13 (both inclusive); Section
15 of the Amending Act 2019 shall come
into force. The words used in the
notification: - "the provisions of the
following Sections of the said Act" refer to
the Amending Act 2019 and not the original
Act 1996. Now, when we peruse the
Amending Act 2019, we find that no date
has been appointed for coming into force of
Section 3 of the Amending Act 2019 by
which Section 11 (7) of the original Act
1996 is sought to be omitted, meaning
thereby, sub-Section (7) of Section 11 of the
Act
1996
barring
a
Letters
Patent
Appeal/Special Appeal against an order
passed under Section 11 (4) (5) (6) of the Act
1996, still exists, therefore, the bar continues
so long as Section 3 of the Amending Act
2019 is not notified.

12. This being the position, there is
a statutory bar in the Act 1996 which is a
special enactment and Chapter VIII Rule of
the High Court Rules cannot be read,
understood and applied contrary to the said
provision, therefore, this special appeal is
not maintainable.

13. We dismiss the special appeal as
not maintainable, leaving it open for the
appellant to pursue other remedies as may be
permissible in law.

14. The records of First Appeal
From Order No. 718 of 2008 which were
summoned by us shall be returned to the
concerned section.
----------
(2024) 5 ILRA 1492
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Special Appeal No. 769 of 2023

Rehan Ahmad ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Mohammad Ali Ausaf, Sri Sankalp Narain

Counsel for the Respondent:
C.S.C., Sri Pranav Mishra, Sri Sanjeev Singh

(A) Education Law - Allahabad High Court
Rules (Rules of the Court, 1952) - Rule 5 of
Chapter VIII - Special Appeal - Validity of
Scheme of Administration and competence
of Registrar - Uttar Pradesh Madarsa
Education Board Act, 2004 - Sectio 3 ,3(3)
, 22(5) - Uttar Pradesh Non-Governmental
Arabic and Persian Madarsa Recognition,
Administration and Services Regulation,
2016 - Regulation 16 - disciplinary action
can be taken, against teaching and nonteaching staff of a Madarsa only in
accordance with the duly approved Scheme
of Administration - appeal against the
order passed with the consent of the
parties are normally not entertainable in
unless any such legal question is involved
that
may
cause
a
serious
legal
consequence - only non-contesting parties
have privilege to prefer appeal.(Para -
9,21,22)

Challenged validity of Scheme of Administration
and competence of Registrar - dismissed from
service by Madarsa - filed writ petition
challenging dismissal order - disposed of by Writ
Court - Registrar of Uttar Pradesh Madarsa
Education Board set aside dismissal order -
directed -Manager to reinstate appellanat -
Committee of Management also filed a writ