# FUERST DAY LAWSON LTD v. JINDAL EXPORTS LTD

- **Citation:** [2011] 11 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2011-07-08
- **Bench:** Aftab Alam, R.M. Lodha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/fuerst-day-lawson-ltd-v-jindal-exports-ltd-27139
- **Pages:** 62

## Headnote

A
B
Arbitration and Conciliation Act, 1996 - ss. 50 and 49 -
Whether an order, though not appealable under s. 50 of the
1996 Act, would nevertheless be subject to appeal under the C
relevant provision of the Letters Patent of the High Court -
Held: No letters patent appeal will lie against an order which
is not appealable under s.50 of the 1996 Act - Conclusion
regarding exclusion of letters patent appeal arrived at in two
different ways; one, so to say, on a micro basis by examining D
the scheme devised by ss. 49 and 50 of the 1996 Act and
the radical change that it brings about in the earlier provision
of appeal under s. 6 of the 1961 Act and the other on a macro
basis by taking into account the nature and character of the
1996 Act as a self-contained and exhaustive code in itself -
E
Where the special Act sets out a self-contained code the
applicability of the general law procedure would be impliedly
excluded - Foreign Awards (Recognition and Enforcement)
Act, 1961 - s.6 - Letters Patent.
Arbitration and Conciliation Act, 1996 - Part I and Part
F
II of the Act - Difference between - Held: Part I and Part II of
the Act are quite different in their object and purpose and the
respective schemes.
Arbitration and Conciliation Act, 1996 - ss. 37 and 50 -
G
Appellate provision uls. 37 and u/s. 50 - Difference between
- Held: s137 in Part I of the Act (analogous to s. 39 of the 1940
Act) is not comparable to s.50 in Part II of the Act - s.37 and
s. 50 are not comparable because they belong to two different
1
H
2
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A
statutory schemes - s.37 containing the provision of appeal
is part of a much larger framework that has provisions for the
complete range of law concerning domestic arbitration and
international commercial arbitration - s.50 on the other hand
contains the provision of appeal in a much limited framework,
B concerned only with the enforcement of New York Convention
awards -
In one sense, the two sections, though each
containing the appellate provision belong to different statutes.
Arbitration and Conciliation Act, 1996 - Part II, Chapter
C I - Provisions of, compared with the provisions of the Foreign
Awards (Recognition and Enforcement) Act, 1961.
The question that arose for consideration in the
present batch of cases was whether an order, though not
appealable under section 50 of the Arbitration and
D Conciliation Act, 1996, would nevertheless be subject to
appeal under the relevant provision of the Letters Patent
of the High Court i.e. in other words, whether, even
though the ·Arbitration Act does not envisage or permit
an appeal from the order, the party aggrieved by it can
E still have his way, by-passing the Act and taking recourse
to another jurisdiction.
Dismissing appeals arising from SLP (C) No.31068 of
2009 and SLP (C) No.4648 of 2010 and allowing Civil
F appeal no.36 of 2010, the Court
HELD:1. A correct answer to the question under
consideration would depend upon how the Arbitration
and Conciliation Act, 1996 is to be viewed. Do the
provisions of the 1996 Act constitute a complete code for
G matters arising out of an arbitration proceeding, the
making of the award and the enforcement of the award?
If the answer to the question is in the affirmative then,
obviously, all other jurisdictions, including the letters
patent jurisdiction of the High Court would stand
H excluded. [Paras 3, 4] [11-F-G; 12-A-B]
FUERST DAY LAWSON LTD. v. JINDAL EXPORTS
3
LTD.
2.1. Before the coming into fgrce of the Arbitration A
and Conciliation Act, 1996 with effect from August 16,
1996, the law relating to domestic arbitration was
contained in the Arbitration Act, 1940, which in turn was
brought in place of the Arbitration Act, 1899. Apart from
the Arbitration Act 1940, there were two other enactments
B
of the same genre. One called the Arbitration (Protocol
and Convention) Act, 1937 (for execution of the Geneva
Convention Awards) and the other called the 'Foreign
Awards (Recognition and Enforceme

## Text

_Characters 0–39,711 of 115,332. This is a partial read: ask again with offset=39711 for what follows._

[2011] 11 S.C.R. 1
FUERST DAY LAWSON LTD.
v.
JINDAL EXPORTS LTD.
(SLP (C) No. 11945 of 2010)
JULY 8, 2011
[AFTAB ALAM AND R.M. LODHA, JJ.]
A
B
Arbitration and Conciliation Act, 1996 - ss. 50 and 49 -
Whether an order, though not appealable under s. 50 of the
1996 Act, would nevertheless be subject to appeal under the C
relevant provision of the Letters Patent of the High Court -
Held: No letters patent appeal will lie against an order which
is not appealable under s.50 of the 1996 Act - Conclusion
regarding exclusion of letters patent appeal arrived at in two
different ways; one, so to say, on a micro basis by examining D
the scheme devised by ss. 49 and 50 of the 1996 Act and
the radical change that it brings about in the earlier provision
of appeal under s. 6 of the 1961 Act and the other on a macro
basis by taking into account the nature and character of the
1996 Act as a self-contained and exhaustive code in itself -
E
Where the special Act sets out a self-contained code the
applicability of the general law procedure would be impliedly
excluded - Foreign Awards (Recognition and Enforcement)
Act, 1961 - s.6 - Letters Patent.
Arbitration and Conciliation Act, 1996 - Part I and Part
F
II of the Act - Difference between - Held: Part I and Part II of
the Act are quite different in their object and purpose and the
respective schemes.
Arbitration and Conciliation Act, 1996 - ss. 37 and 50 -
G
Appellate provision uls. 37 and u/s. 50 - Difference between
- Held: s137 in Part I of the Act (analogous to s. 39 of the 1940
Act) is not comparable to s.50 in Part II of the Act - s.37 and
s. 50 are not comparable because they belong to two different
1
H
2
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A
statutory schemes - s.37 containing the provision of appeal
is part of a much larger framework that has provisions for the
complete range of law concerning domestic arbitration and
international commercial arbitration - s.50 on the other hand
contains the provision of appeal in a much limited framework,
B concerned only with the enforcement of New York Convention
awards -
In one sense, the two sections, though each
containing the appellate provision belong to different statutes.
Arbitration and Conciliation Act, 1996 - Part II, Chapter
C I - Provisions of, compared with the provisions of the Foreign
Awards (Recognition and Enforcement) Act, 1961.
The question that arose for consideration in the
present batch of cases was whether an order, though not
appealable under section 50 of the Arbitration and
D Conciliation Act, 1996, would nevertheless be subject to
appeal under the relevant provision of the Letters Patent
of the High Court i.e. in other words, whether, even
though the ·Arbitration Act does not envisage or permit
an appeal from the order, the party aggrieved by it can
E still have his way, by-passing the Act and taking recourse
to another jurisdiction.
Dismissing appeals arising from SLP (C) No.31068 of
2009 and SLP (C) No.4648 of 2010 and allowing Civil
F appeal no.36 of 2010, the Court
HELD:1. A correct answer to the question under
consideration would depend upon how the Arbitration
and Conciliation Act, 1996 is to be viewed. Do the
provisions of the 1996 Act constitute a complete code for
G matters arising out of an arbitration proceeding, the
making of the award and the enforcement of the award?
If the answer to the question is in the affirmative then,
obviously, all other jurisdictions, including the letters
patent jurisdiction of the High Court would stand
H excluded. [Paras 3, 4] [11-F-G; 12-A-B]
FUERST DAY LAWSON LTD. v. JINDAL EXPORTS
3
LTD.
2.1. Before the coming into fgrce of the Arbitration A
and Conciliation Act, 1996 with effect from August 16,
1996, the law relating to domestic arbitration was
contained in the Arbitration Act, 1940, which in turn was
brought in place of the Arbitration Act, 1899. Apart from
the Arbitration Act 1940, there were two other enactments
B
of the same genre. One called the Arbitration (Protocol
and Convention) Act, 1937 (for execution of the Geneva
Convention Awards) and the other called the 'Foreign
Awards (Recognition and Enforcement) Act, 1961 (for
enforcement of the New York Convention awards). The c
aforesaid three Acts were replaced by the Arbitration and
Conciliation Act, 1996, which is based on the United
Nations Commission on International Trade Law
(UNCITRAL) Model and is broadly compatible with the
"Rules of Arbitration of the International Chamber of 0
Commerce". The Arbitration and Conciliation Act, 1996
that has repealed the Arbitration Act, 1940 and also the
Acts of 1937 and 1961, consolidates and amends the law
relating to domestic arbitration, international commercial
arbitration, enforcement of foreign arbitral awards and
defines the law relating to conciliation and provides for E
matters connected therewith and incidental thereto
taking into account the UNCITRAL MODEL law and Rules.
[Paras 43, 44, 45) [31-G-H; 32-A-F]
2.2. The 1996 Act is a loosely integrated version of F
the Arbitratioli Act, 1940, Arbitration (Protocol and
Convention) Act, 1937 and Foreign Awards (Recognition
and Enforcement) Act, 1961. It actually consolidates
amends and puts together three different enactments.
But having regard to the difference in the object and G
purpose and the nature of these three enactments, the
provisions relating thereto are kept separately. A mere
glance at the 1996 Act is sufficient to show that under its
scheme the provisions relating to the three enactments
are kept separately from each other. The 1996 Act is H
4
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A divided into four parts and it has three schedules at its
end. Part I has ten chapters that contain provisions
governing domestic arbitration a·nd international
commercial arbitration. Part II has two chapters; Chapter
I contains provisions relating to the New York Convention
B Awards and Chapter II contains provisions relating to the
Geneva Convention Awards. Part Ill of the Act has
provisions concerning conciliation. Part IV has the·
supplementary provisions such as the power of the High
Court to make rules (section 82), provision for removal
c of difficulties (section 83), and the power to make rules
(section 84). At the end there are two repeal and saving
sections. Section 85 repeals the three enactments
referred to above, subject to the appropriate saving
clause and section 86 repeals Ordinance 27 of 1996, the
0
precursor of the Act, subject to the appropriate saving
clause. Of the three schedules, the first is related to Part
II, Chapter I, i.e., the New York Convention Awards and
the second and the third to Chapter II, i.e., the Geneva
Convention Awards. [Para 48] [36-C-H; 37-A]
E
2.3. There is a certain similarity between the
provisions of Chapters I and II of Part II but Part I of the
Act is vastly different from Chapters I and II of Part II of
the Act. This is quite understandable too since Part II
deals only with enforcement of foreign awards (Chapter
F I, of New York Convention Awards and Chapter II, of
Geneva Convention Awards) whi.le Part I of the Act deals
with the whole gamut of law concerning domestic
arbitration and international commercial arbitration. It has,
therefore, a very different and much larger framework
G than the two chapters in Part II of the Act. [Para 49] [378-C]
2.4. It is also evident that Part I and Part II of the Act
are quite separate and contain provisions that act
independently in their respective fields. The opening
H
FUERST DAY LAWSON LTD. v. JINDAL EXPORTS
5
LTD.
words of section 2, i.e. the definition clause in Part I, make
A
it clear that meanings assigned to the terms and
expressions defined in that section are for the purpose
of that part alone. Section 4 which deals with waiver of
right to object is also specific to Part I of the Act. Section
5 dealing with extent of judicial intervention is also B
specific to Part I of the Act. Section 7 that defines
"arbitration agreement" in considerable detail also
confines the meaning of the term to Part I of the Act alone.
Section 8 deals with the power of a judicial authority to
refer parties to arbitration where there is an arbitration C
agreement and this provision too is relatable to Part I
alone (corresponding provisions are independently made
in sections 45 and 54 of Chapter I and II, respectively of
Part II). The other provisions in' Part I by their very nature
shall have no application insofar as the two chapters of D
Part II are concerned. Once it is seen that Part· I and Part
II of the Act are quite different in their object and purpose
and the respective schemes, it naturally follows that
section 37 in Part I (analogous to section 39 of the 1940
Act) is not comparable to section 50 in Part II of the Act.
This is not because, as appellant contends section 37 has
E
the words in parentheses "and from no others" which are
not to be found in section 50 of the Act. Section 37 and
section 50 are not comparable because they belong to
two different statutory schemes. Section 37 containing the
provision of appeal is part of a much larger framework · F
that has provisions for the complete range of law
concerning domestic arbitration and international
commercial arbitration. Section 50 on the other hand
contains the provision of appeal in a much limited
framework, concerned only with the enforcement of New G
York Convention awards. In one sense, the two sections,
though each containing the appellate provision belong to
different statutes. [Paras 51, 52] [37-G-H; 38-A-G]
2.5. A comparison of the provisions of Chapter I of H
6
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A Part II of the 1996 Act and the provisions of the Foreign
Awards (Recognition and Enforcement Act), 1961, would
show that section 44, the definition clause in the 1996 Act
is a verbatim reproduction of section 2 of the previous
Act (but for the words "~hapter" in place of "Act", "first
B schedufe" in place of "schedule" and the addition of the
word "arbitral" before the word "award" in section 44).
Section 45 corresponds to section 3 of the previous Act.
Section 46 is a verbatim reproduction of section 4(2)
except for the substitution of the word "chapter" for
C "Act". Section 47 is almost a reproduction of section 8
except for the addition of the words "before the court"
"in sub-section (1)" and an explanation as to what is
meant by "court" in that section. Section 48 corresponds
to section 7; section 49 to section 6(1) and section 50 tp
0
section 6(2). Apart from the fact that the provisions are
arranged iri a far more orderly manner, it is to be noticed
that the provisions of the .1996 Act are clearly aimed at
facilitating and expediting the enforcement of the New
York Convention Awards. Section 3 of the 1961 Act
dealing with a stay of proceedings in respect of matters
E to be referred to arbitration was confined in its
application to "legal proceedings in any court" and the
court had a wider discretion not to stay the proceedings
before it. The corresponding provision in section 45 of
the present Act has a wider application and it covers an
F action before any judicial authority. Further, under
section 45 the judicial authority has a narrower discretion
to refuse to refer the parties to arbitration. Under section
4(1) of the 1961 Act, a foreign award for its enforcement
was first deemed to be an award made on a matter
G referred to arbitration in India. Section 46 of the present
Act dispenses with the provision of sub-section (1) of
section ,4 and resultantly a foreign award is enforceable
in its own right. Section 47 is almost a reproduction of
section 8 except for the addition of the words "before the
H court" in sub-section (1) and an explanation as to what
FUERST DAY LAWSON L TO. v. JINDAL EXPORTS
7
LTD.
is meant by "court" at the end of the section. Section 49
A
corresponds to section 6(1) and section 50 to section
6(2). It is however, a comparison of section 6 of the 1961
Act with section 49 of the present Act that provides a
direct answer to the question under consideration. Under
section 6 of the 1961 Act, the Court on being satisfied that
B
the foreign award was enforceable under the Act, would
first order the· award to be filed and then proceed to
pronounce judgment according to the award. The
judgment would lead to a decree against which no appeal
would lie except insofar as the decree was in excess of C
or not in ·accordance with the award. Section 49 of the
present Act makes a radical change in that where the
court is satisfied that the foreign award is enforceable, the
award itself would be deemed to be a decree of the Court.
It, thus, not only omits the procedural formality for the
0
court to pronounce judgment and a decree to follow on
that basis but also completely removes the possibility of
the decree being in excess of, or not in accordance with
the award. Thus, even the limited ·basis on which an
appeal would lie under sub-section (2) of section 6 of the
1961 Act, is taken away. There is, thus, no scope left for
E
an appeal against an order ~f the court for the
enforcement of a foreign award. It is for this reason that
section 50(1)(b) provides for an appeal only against an
order refusing to enforce a foreign award under section
48. There can be no doubt that under section 6, except
F
on the very limited ground, no appeal including a Letters
Patent Appeal was maintainable against the judgment
and decree passed by the Court under section 6(1). It
would be futile, therefore, to contend that though the
present Act even removes the limited basis on which the
G
appeal was earlier maintainable,, yet a Letters Patent
Appeal would lie notwithstanding the limitations· imposed
by section 50 of the Act. The scheme of sections 49 and
50 of the 1996 Act is devised specially to exclude even
the limited ground. on· which an appeal was earlier
H
8
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A provided for under section 6 of the 1961 Act. The
exclusion of appeal by section 50 is, thus, to be
understood in light of the amendment introduced in the
previous law by section 49 of the Act. [Paras 55, 56, 57,
58, 59) [39-B-C; 48-F-H; 49-A-E; 50-E-H; 51-A-B]
B
2.6. There is another way to look at the matter. It is
seen that the Arbitration Act 1940, from its inception and
right through 2004 (in P.S. Sathappan's case) was held
to be a self-contained code. Now, if Arbitration Act, 1940
C was held to be a self-contained code, on matters
pertaining to arbitration the Arbitration and Conciliation
Act, 1996, which consolidates, amends and designs the
law relating to arbitration to bring it, as much as possible,
in harmony with the UNCITRAL Model must be held only
to be more so. Once it is held that the Arbitration Act is a
D self-contained code and exhaustive, then it must also be
held, that it carries with it "a negative import that only
such acts as are mentioned in the Act are permissible to
be done and acts or things not mentioned therein are not
permissible to be done". In other words, a Letters Patent
E Appeal would be excluded by application of one of the
general principles that where the special Act sets out a
self-contained code the applicability of the general law
procedure would be impliedly excluded. [Paras 60, 72) [51F
C; 61-E-H; 62-A]
Orma lmpex Pvt. Ltd. v. Nissai ASB PTE Ltd. (1999) 2
SCC 541; State of West Bengal v. Mis Gourangalal Chatterjee
(1993) 3 SCC 1: 1993 (3) SCR 640; Union of India v.
Mohindra Supply Co. 1962 (3) SCR 497; Vinita M. Khanolkar
G v. Pragna M. Pai & Ors. (1998) 1 SCC 500: 1997 (5) Suppl.
SCR 593; National Sewing Thread Co. Ltd. v. James
Chadwick and Bros. Ltd. AIR 1953 SC 357: 1953 SCR 1028;
Union of India & Ors. v. Aradhana Trading Co. (2002) 4 SCC
447: 2002 (2) SCR 847; Sharda Devi v. State of Bihar (2002)
H 3 SCC 705: 2002 (2) SCR 404; Basant Kumar v. Union of
FUERST DAY LAWSON LTD. v. JINDAL EXPORTS
9
LTD.
India (1996) 11 SCC 542: 1996 (6) Suppl. SCR 231; South
A
Asia Industries (P) Ltd. v. S.B. Sarup Singh (1965) 2 SCR
756; Subal Paul v. Malina Paul & Anr. (2003) 10 SCC 361:
2003 (1) SCR 1092; P.S. Sathappan v. Andhra Bank Ltd. &
Ors. (2004) 11 SCC 672: 2004 (5) Suppl. SCR 188; Hurrish
Chunder Chewdry v. Kali Sundari Debia ILR (1882) 9 Cal.
B
482 (PC); Resham Singh Pyara Singh v. Abdul Sattar (1996)
1 SCC 49: 1995 (5) Suppl. SCR 483; New Kenilworth Hotel
(P) Ltd. v. Orissa State Finance Corpn. (1997) 3 SCC 462:
1997 (1) SCR 395; Chandra Kanta Sinha v. Oriental
Insurance Co. Ltd. & Ors. (2001) 6 SCC 158: 2001 (3) SCR
C
759; Gauri Singh v. Ramlochan Singh AIR (35) 1948 Patna
430; Belli Gowderv. Joghi Gowder AIR (38) 1951 Madras 683;
Narbadabai and Ors. v. Natverlal Chunilal Bhalakia & Anr.AIR
1953 Bombay 386; S.N. Srikantia & Co. v. Union of India and
Anr. AIR 1967 Bombay 347 - referred to.
D
3. The conclusion regarding the exclusion of a
letters patent appeal has thus been arrived at in two
different ways; one, so to say, on a micro basis by
examining the scheme devised by sections 49 and 50 of
the 1996 Act and the radical change that it brings about
E
in the earlier provision of appeal under section 6 of the
1961 Act and the other on a macro basis by taking into
account the nature and character of the 1996 Act as a
self-contained and exhaustive code in itself. It must be
held that no letters patent appeal will lie against an order
F
which is not appealable under section 50 of the
Arbitration and Conciliation Act, 1996. [Paras 73, 7 4] (62B-D]
Case Law Reference:
(1999) 2 sec 541
1993 (3) SCR 640
1962 (3) SCR 497
Referred to.
Para 8
Referred to.
Para 9
Referred to.
Para 9
G
H
10
SUPREME COURT REPORTS
[2011) 11 S.C.R.
A
1997 (5) Suppl. SCR 593
1953 SCR 1028
Referred to.
Para 9
Referred to.
Para 9
B
c
D
2002 (2) SCR 847
2002 (2) SCR 404
1996 (6) Suppl. SCR 231
(1965) 2 SCR 756
2003 (1) SCR 1092
- Referred to.
Para 10
Referred to.
Para 18
Referred to.
Para 18
Referred to.
Para 18
Referred to.
Para 20
2004 (5) Suppl. SCR 188
Referred to.
Para 22
JLR (1882) 9 Cal. 482 (PC)
Referred to.
Para 23
1995 (5) Suppl. SCR 483
1997 (1) SCR 395
Referred to.
Para 26
Referred to.
Para 26
2001 (3) SCR 759
Referred to.
Para 26
AIR (38) 1951 Madras 683
Referred to.
Para 63
E
AIR 1953 Bombay 386
Referred to.
Para 64
F
AIR 1967 Bombay 347
Referred to.
Para 66
CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
11945 of 2010.
From the Judgment & Order dated 11.12.2009 of the High
Court of Delhi at New Delhi in OMP No. 29 of 2003.
WITH
G SLP (C) Nos. 13625, 13626-13629 and 22318-22321 of 2010,
C.A. Nos. 36 of 2010, 5156 and 5157 of 2011.
H
Dushyant Dave, C.A. Sundaram, Mukul Rohatgi, S.K.
Bagaria, Jaideep Gupta, Debal Kr. Banerji, Sangeeta Bharti,
. Nidhi Minocha (for Subramonium Prasad), Narendra M.
FUERST DAY LAWSON LTD. v. JINDAL EXPORTS
11
LTD.
Sharma, Rohini Musa, Abhishek Sharma, Zafar lnayat, Yogesh
A
V. Kotemath, Mallika, Jaiveer Shergill, l?raveen Kumar,
Siddhartha Dave, Vibha Datta Makhija, Jemtiben AO, E.C.
Agrawala, Ramesh Singh, Anne Mathew, Suman Jyoti Khaitan,
Rishi Maheshwari, Ashwani Kumar, Sharmila Upadhyay,
Gagan Gupta, Suresh A. Shroff & Co., S. Niti Dixit, Darpan
B
Wadhwa, Vidur Bhatia, Pradeep Misra, Roopa Dayal, Taniya
Khare, Aradhana Patra, AT. Patra (for O.P. Khaitan & Co),
Kush Chaturvedi, Prerna Priyadarshini, Pinaki Addey,
Chiraranjan Addey, Manav Ujla, Bina Gupta, Jayant Kumar
Mehta for the appearing parties.
c
The Judgment of the Court was delivered by
AFTAB ALAM, J. 1. Leave granted in SLP (C) No.31068
of 2009 and SLP (C) No.4648 of 2010. ·
·
2. The common question that arises for consideration by
D
the Court in this batch of cases is whether an order, though not
appealable under section 50 of the Arbitration and Conciliation
Act, 1996 (hereinafter "1996 Act"), would nevertheless be
subject to appeal under the relevant provision of the Letters
E
Patent of the High Court. In other words even though the
Arbitration Act does not envisage or permit an appeal from the
order, the party aggrieved by it can still have his way, bypassing the Act and taking recourse to another jurisdiction.
3. Mr. C.A. Sundaram, senior advocate, however, who led
F
the arguments on behalf of the appellants, would like to frame
the question differently. He would ask whether there is any
provision in the 1996 Act that can be said to exclude the
jurisdiction of the High Court under its Letters Patent either
expressly or even impliedly. He would say that the jurisdiction
G
of the High Court under the Letters Patent is an independent
jurisdiction and as long as the order qualifies for an appeal
under the Letters Patent an appeal from that order would be,
undoubtedly, maintainable before the High Court.
H
•
12
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A
4. A correct answer to both the questions would depend
upon how the 1996 Act is to be viewed. Do the provisions of
the 1996 Act constitute a complete code for matters arising out
of an arbitration proceeding, the making of the award and the
enforcement of the award? If the answer to the question is in
B the affirmative then, obviously, all other jurisdictions, including
the letters patent jurisdiction of the High Court would stand
excluded but in case the answer is in the negative then, of
course, the contention of Mr. Sundaram must be accepted.
C
5. The batch presently before the Court originally consisted
of nine cases, out of which SLP (C) No.16908 of 201 O ended
in compromise between the parties.· Of the remaining eight
cases, SLP (C) No.13625 of 2010 and SLP (C) No.11945 of
2010 are unrelated and have been wrongly put in this batch.
These two SLPs are filed against a common judgment passed
D by a single judge of the Delhi High Court insofar as though
allowing the petitioners' application for enforcement of two
foreign awards, the High Court declined to pass any order for
payment of interest on the awarded amounts payable to the
petitioners. These two cases are, therefore, directed to be deE tagged and listed separately. This leaves behind six cases. At
the conclusion of hearing, one of the cases, being SLP (C)
No.31067 of 2009 was directed, on the prayer made by, thei
counsel for the petitioner, to be de-linked from the batch and
to be listed separately. It, however, appears that the direction
F was wrongly obtained since that case and another case in the
batch, SLP (C) No.31068 of 2009 arise from a common order
and SLP (C) No.31067 of 2009 would also be fully governed!
by this judgment. Be that as it may, the direction for de-linking1
is already made and, hence, that case will be separately listed
G and dealt with in due course. Of the remaining five cases four
come from the Delhi High Court and one from the Calcutta High
Court. In SLP (C) No.4648 of 2010 and SLP (C) No.31068 of
2010, the applications filed by the respective respondents in
these cases, for enforcement of the foreign award in their favour
H
FUERST DAY LAWSON LTD. v. JINDAL EXPORTS
13
LTD. [AFTAB ALAM, J.]
were allowed by orders passed by a single judge of the High
A
Court. Against the orders of the single judge, the petitioners in
these SLPs filed appeals before the division bench of the High
Court. All the appeals were taken together and dismissed by
a common order as not maintainable. The petitioners have
come before this Court against the order passed by the division
B
bench only, on the question of maintainability of their appeals.
Civil Appeal No.36 of 201 O coming from the Calcutta High
Court is opposite of the aforementioned two SLPs coming from
the Delhi High Court. In this case, against an order passed by
a single judge of the High Court, by which he granted relief for
C
enforcement of a foreign award, an appeal was preferred
before the division bench of the High Court. The appeal was
admitted but a preliminary objection was raised in regard to
its maintainabmty in view of section 50 of the 1996 Act. The
division bench by order dated May 8, 2007 rejected the
preliminary objection holding that the appeal was maintainable.
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6. In SLP (C) Nos.22318-22321 of 2010 a single judge of
the Delhi High Court dismissed the suit filed by the petitioner
and allowed the application filed by defendant nos.3-5 referring
the parties to arbitration in terms of section 45 of the 1996 Act.
E
The petitioner's appeal before the division bench was
dismissed as not maintainable. The SLP (C) Nos. 2231822321 of 2010 are filed under Article 136 of the Constitution
challenging orders passed by both the division bench and the
single judge of the High Court.
F
7. The petitioner in SLP (C) Nos.13626-13629 of 2010 is
the respondent in SLP (C) No.13625 of 2010 and SLP (C)
No.11945 of 2010 which have been held to be unrelated to the
batch. Against the order passed by a single judge of the High
G
Court for enforcement of two foreign awards against it, the
petitioner in SLP (C) Nos.13626-13629 of 2010, first preferred
an.appeal before the division bench of the High Court, but the
appeal was dismissed by the division bench as not
maintainable. The present SLPs are filed challenging both the
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14
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A orders passed by the single judge and the division bench.
8. At the outset Mr. C.A. Sundaram, submitted that the
proper course would be to refer the matter to a larger bench of
three judges. He pointed out that in Orma lmpex Pvt. Ltd. v.
B Nissai A SB PTE Ltd., ( 1999) 2 SCC 541, the same question
was earlier referred to a bench of three judges of this Court.
The Court, however, did not have the occasion to decide the
case because it was withdrawn following a settlement between
the parties. Mr. Sundaram submitted that though the case does
C not survive, the issue arising in it (which is the same as in this
batch of cases) continues to be alive and hence, following the
referral in Orma lmpex Pvt. Ud. (which was in the form of
'Record of Proceedings' and not an order of the Court!), all
these cases should be ref~red for hearing before a bench of
three judges of this Court. Mr. Dushyant Dave, learned senior
D advocate appearing for the respondents, in some of the cases
in the batch, strongly opposed Mr. Sundaram's submission and
contended that there was no need to refer the cases to any
larger bench.
E
9. In Orma lmpex Pvt. Ltd., the Delhi High Court had taken
the view that against the order passed by a single judge of the
High Court under section 45, refusing to refer parties to
arbitration, no further appeal would lie under section 50 of the
1996 Act. In the special leave petition filed against the order of
F the High Court, a bench of two judges of this Court observed
that the High Court had failed to notice section 10 of the Delhi
High Court Act, 1996 and clause 10 of the Letters Patent which
applies to the Delhi High Court. It further observed that though
. the view taken by the High Court was supported by a two judge
G bench decision of this Court in State of West Bengal v. Mis
Gourangalal Chatterjee, (1993) 3 SCC 1, which in turn had
relied upon an earlier decision of the Court in Union of India v.
Mahindra Supply Co., 1962 (3) SCR 497, a contra view was
taken by the Court in Vinita M. Khanolkar v. Pragna M. Pai &
H Ors., (1998) 1 SCC 500. There, thus, appeared a conflict of
FUERST DAY LAWSON LTD. v. JINDAL EXPORTS
15
LTD. [AFTAB ALAM, J.]
decisions on the question. In support of the contra view, the
A
division bench also referred to an earlier decision by a three
judge bench of this Court in National Sewing Thread Co. Ltd.
v. James Chadwick and Bros. Ltd., AIR 1953 SC 357.
10. Mr. Dave pointed out that neither the decision in Vinita
8
M. Khanolkar nor the decision in National Sewing Thread Co.
Ltd. was rendered under the provisions of the Arbitration Act;
the former was in the context of section 6(3) of the Specific
Relief Act, 1963 and the latter under the Trade Marks Act, 1940.
He further submitted that after the decisions in Vinita M.
Khanolkar and the referral of Orma lmpex Pvt. Ltd., a three
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judge bench of this Court in Union of India & Ors. v. Aradhana
Trading Co., (2002) 4 sec 447, had the occasion to consider
the same question, as arising in this batch of cases, though not
under the 1996 Act but under the provisions of the Arbitration
Act, 1940 (hereinafter "1940 Act"). In Aradhana Trading Co.
D
the Court referred to both the decisions in Vinita M. Khanolkar
and in National Sewing Thread Co. Ltd.; the first it did not follow
and the second it distinguished as having been rendered on a
different set of provisions. Mr. Dave submitted that, thus, the
very foundation on which the referral of Orma lmpex Pvt. Ltd.
E
was based, no longer held good.
11. On hearing the two sides, we are of the view that in
the afore-noted facts and circumstances the referral of Orma
lmpex Pvt. Ltd. cannot be said to constitute a binding
precedent, especially as the case that was referred no longer
survives. In any event we have heard the two sides at great
length and we see no good reason why this matter should be
referred to a larger bench and not decided by this Court. We,
accordingly, proceed to do so.
12. The question regarding the availability of an appeal
under the relevant clause of the Letters Patent has engaged
F
G.
the attention of this Court from time to time under different
circumstances and in cases arising under different Acts. We
take note of some of the case.s here that were brought to our
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16
SUPREME COURT REPORTS
(2011] 1-1 S.C.R.
A notice by the two sides.
13. In National Sewing Thread Co. Ltd., this Court held
that the judgment of a learned single judge of the Bombay High
Court, on an appeal preferred under section 76 of the Trade
8 Marks Act was subject to appeal under clause 15 of the Letters
Patent of that High .Court. The Court noted the material part of
clause 15 of the Letters Patent of the High Court and section
76 (1) of the Trade Marks Act and observed:
c
D
E
F
"The Trade Marks Act does not provide or lay down any
procedure for the future conduct or career of that appeal
in the High Court, indeed S.77 of the Act provides that the
High Court can if it likes make rules in the matter.
Obviously after the appeal had reached the High Court
it has to be determined according to the rules of practice
and procedure of that Court and in accordance with the
provisions of the charter under which that Court is
constituted and which confers on it power in respect to the
method and manner of exercising that jurisdiction. The
rule is well settled that when c.. statute directs that an
appeal shall lie to a Court already established, then that
appeal must be regulated by the practice and procedure
of that Court."
(emphasis supplied)
14. Taking support for its view from the decisions in (i)
National Telephone Co. Ltd. v. Postmaster-General, (1913)
AC 546, (ii) Adaikappa Chettiar v. Chandresekhara Thevar,
AIR 1948 PC .12 and (iii) Secy. of State for India v. Chelfikani
Rama Rao, AIR 1916 PC 21, the decision in National Sewing
G Thread Co. Ltd. further observed:
"Section 76, Trade Marks Act confers a right of appeal to
the High Court and says nothing more about it. That being
so, the High Court being seized as much of the appellate
H
jurisdiction conferred by S. 76 it has to exercise that
FUERST DAY LAWSON LTD. v. JINDAL EXPORTS
17
LTD. [AFTAB ALAM, J.]
jurisdiction in the same manner as it exercises its other
A
appellate jurisdiction and when such jurisdiction is
exercised by a single Judge, his judgment becomes
subject to appeal under Cl .15 of the Letters Patent there
being nothing to the contrary in the Trade Marks Act."
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15. The Court held that there was nothing in the provisions
of section 77 of the Trade Marks Act that would debar the High
Court from hearing appeals under section 76, according to the
Rules under which all other appeals are heard or from framing
Rules for the exercise of that jurisdiction under section 108,
C
Government of India Act, 1915, for hearing those appeals by
single judges or by division benches. It also negated the
submission that the judgment of the learned single judge would
not be subject to an appeal under clause 15 of the Letters
Patent because it was not delivered pursuant to section 108,
D
Government of India Act.
16. In Vinita M. Khanolkar, a bench of two judges of this
Court held that notwithstanding the bar of sub-section (3), an
order passed by a learned single judge of the High Court under
section 6 of the Specific Relief Act would nevertheless be
E
subject to appeal under clause 15 of the Letters Patent of the
Bombay High Court. In Vinita M. Khanolkar, this Court put the
power of the High Court under the Letters Patent at the level of
constitutional power of the High Court and went on to observe
as follows:
F
"3. Now it is well settled that any statutory provision barring
an appeal or revision cannot cut across the constitutional
power of a High Court. Even the power flowing from the
paramount charter under which the High Court functions
would not get excluded unless the' statutory enactment
G
concerned expressly excludes appeals under letters
patent. No such bar is discernible from Section 6(3) of the
Act. It could not be seriously contended by learned counsel
for the respondents that if clause 15 of the Letters Patent
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18
SUPREME COURT REPORTS
[2011] 11 S.C.R.
is invoked then the order would be appealable.
Consequently, in oi.Jr view, on the clear language of clause
15 of the Letters Patent which is applicable to Bombay
High Court, the said appeal was maintainable as the order
under appeal was passed by learned Single Judge of the
High Court exercising original jurisdiction of the court. Only
on that short ground the appeal is required to be allowed."
17. As noted above, Vinita M. Khanolkar, was considered
in a later three judge bench decision in Aradhana Trading Co.
c One may not go so far as to say that Aradhana Trading Co.
disapproved Vinita M. Khanolkar wholly but it surely took the
opposite view on the question in the context of section 39 of
the Arbitration Act, 1940.
18. In Sharda Devi v. State of Bihar, (2002) 3 SCC 705,
D a bench of three judges of this Court examined the question
whether a Letters Patent Appeal is maintainable against the
judgment and decree of a single judge of the High Court
passed in an appeal preferred under section 54 of the Land
Acquisition Act, 1894. A bench of two judges before which the
· E case was earlier put up noticed a conflict of decision on the
question. In Baljit Singh v. State of Haryana, bench of two
judges of the Court had held that no Letters Patent Appeal is
maintainable against the judgment of a single judge of the High
Court on an appeal under section 54 of the Land Acquisition
F Act, whereas in B'asant Kumar v. Union of India, (1996) 11
sec 542, a bench of three judges, without adverting to the
decision in Baljit Singh, held that such an appeal is
maintainabl~. The two judge bench, accordingly, referred the
case for hearing before a bench of three judges. The three judge
G bench affirmed the decision in Basant Kumar. It noted that the
decision in Baljit Singh was based on concession made in light
of an earlier decision of this Court in South Asia Industries (P)
·Ltd. v. S.B. Sarup Singh, (1965) 2 SCR 756. The decision in
South Asia Industries was in a case under the Delhi Rent
H Control Act, 1958. In Sharda Devi, the Court pointed out that
FUERST DAY LAWSON LTD. v. JINDAL EXPORTS
19
LTD. [AFTAB ALAM, J.]
in South Asia Industries, the -Court had examined sections 39
A
and 43 of the Delhi Rent Control Act and held that a combined
reading of the two sections showed that an order passed by
the High Court in an appeal under section 39 was to be final. It
was held that the provision of finality was intended to exclude
any further appeal. This decision was, thus, based on
B
interpretation of sections 39 and 43 of the Delhi Rent Control
Act. Section 54 of the Land Acquisition Act, has no similarity
with sections 39 and 43 of the Delhi Rent Control Act. Hence,
the decision in South Asia Industries had no relevance to
decide the question whether a letters patent appeal is c
maintainable against the judgment passed by a single judge
under section 54 of the Land Acquisition Act. In regard to the
Letters Patent jurisdiction of the High Court, this Court in
Sharda Devi made the following observation in paragraph 9:
"9. A Letters Patent is the charter under which the High
D
Court is established. The powers given to a High Court
under the Letters Patent are akin to the constitutional
powers of a High Court. Thus when a LettersPatent grants
to the High Court a power of appeal, against a judgment
of a Single Judge, the right to entertain the appeal would
E
not get excluded unless the statutory enactment
concerned excludes an appeal under the Letters Patent."
19. Referring to section 54 of the Land Acquisition Act, the
Court concluded as follows:
F
"14 .... Section 26 of the said Act provides that every
award shall be a decree and the statement of grounds of
every award shall be a judgment. By virtue of1he Letters
Patent "an appeal" against the judgment of a Single Judge
of the Higt) Court would lie to a Division Bench. Section 54
G
of the said Act does not exclude an appeal under the
Letters Patent. The word "only" occurring immediately after
the non obstante clause in Section 54 refers to the forum
of appeal. In other words, it provides that the appeal will
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20
SUPREME COURT REPORTS
[2011) 11 S.C.R.
A
be to the High Court and not ·to any other court e.g. the
District Court. The term "an appeal" does not restrict it to
only one appeal in the High Court. The term "an appeal"
would take within its sweep even a letters patent appeal.
The decision of the Division Bench rendered in a letters
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patent appeal will then be subject to appeal to the
Supreme Court. Read in any other manner there would be
a conflict between Section 54 and the provision of a
Letters Patent. It is settled law that if there is a conflict,
attempt should be made to harmoniously construe the
c
provisions."
20. In Subal Paul v. Malina Paul & Anr., (2003) 10 SCC
361, a bench of three judges of this· Court examined the
question whether a letters patent appeal would lie· against the
judgment of a single judge of a High Court on an appeal filed
D under section 299 of the Indian Succession Act, 1925. Arguing
against the maintainability of a letters patent appeal against the
judgment of the single judge it was contended that the rejection
of the application for probate by the district judge did not give
rise to any decree. Hence, an appeal against such an order
E would be one under section 104 of the Civil Procedure Code
and a further appeal would, therefore, be barred under subsection (2) of section 104. This Court did not accept the
submission. It held that the appeal against an order of the
district judge would be under section 299 of the-Indian
F Succession Act. Section 104 of the Code simply recognizes
appeals provided under special statutes; it does not create a
right of appeal as such. Consequently, it does not bar any further
appeal also. As regards the nature of an appeal under the
Letters Patent, the decision in Subal Paul in paragraphs 21
G and 22, observed as follows:
H
"21. If a right of appeal is provided for under the Act, the
limitation thereof must also be provided therein. A right of
appeal which is provided under the Letters Patent cannot
be said to be restricted. Limitation of a right of appeal, in
FUERST DAY LAWSON LTD. v. JINDAL EXPORTS
21
LTD. [AFTAB ALAM, J.]
the absence of any provision in a statute cannot be readily
A
inferred. It is now well-settled that the appellate
jurisdiction of a superior court is not tak~n as excluded
simply because the subordinate court exercises its
special jurisdiction. In G.P.