Mohanlal Agarwal vs Manjan Devi Patni & Ors
2021 Latest Caselaw 108 Cal/2

OD2

                         APOT No. 6 of 2021
                                with
                          AP No. 74 of 2019
                       IA No. GA No. 1 of 2021
                 IN THE HIGH COURT AT CALCUTTA
                          In appeal from its
               ORDINARY ORIGINAL CIVIL JURISDICTION
                  CIVIL APPELLATE JURISDICTION
                           ORIGINAL SIDE



                            Mohanlal Agarwal
                                 Versus
                         Manjan Devi Patni & Ors.




Before:
The Hon'ble Justice I. P. MUKERJI
            And
The Hon'ble Justice SUBHASIS DASGUPTA
Date: 3rd February 2021

                                                              Appearance:
                                            Mr. Debnath Ghosh, Advocate
                                      Mr. Satarup Bhattacharya, Advocate
                                       Mr. Saptarshi Mukherjee, Advocate
                                                         for the appellant
                                              Mr. Rajeev Kr. Jain, Advocate
                                               Ms. Laila Khatun, Advocate
                                                  Mr. Ayush Jain, Advocate
                                                for respondent nos. 1 to 11

The Court: This appeal from an judgment and order dated 2nd

March 2020 by a learned single judge of this Court refusing to entertain

an application under section 34 of the Arbitration and Conciliation Act,

1996 is formally admitted.

The reason for refusing to entertain the said application was that at

an earlier point of time the application with the self-same grounds had

been filed before the learned District Judge at Alipore. It was filed in this

Court by the appellant after withdrawing it from the other Court on the

premise that the said other Court had no territorial jurisdiction to

entertain the same.

The learned single judge dismissed the section 34 application on the

ground of delay. His lordship was unable to allow exclusion of time under

section 14 of the Limitation Act, 1963 for preferring the said application

in this Court. According to the learned judge, the proceeding before the

other Court was not prosecuted bona fide or with due diligence.

After these facts were narrated by Mr. Debnath Ghosh, learned

advocate for the appellant, Mr. Jain learned advocate for the respondents

submits that this appeal is not maintainable under section 37 of the

Arbitration and Conciliation Act, 1996.

Prima facie we do not accept the submission. Section 37 provides as

follows:

"37. Appealable orders.-(1) 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 granting of the arbitral tribunal.-

(a) accepting the plea referred 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 shall affect or take away any right to appeal to the Supreme Court."

Refusal to entertain a section 34 application on the above ground,

prima facie, in our opinion, has the effect of refusing to set aside the

arbitral award under Section 37(1)(c) of the said Act. The said impugned

order is to be interpreted accordingly.

As the respondents are represented by learned counsel, issuance

and service of the notice of appeal are dispensed with. Learned advocate-

on-record for the appellant is directed to file an informal paper book by

19th February 2021, serving a copy thereof upon the advocate-on-record

for the respondents at least seven days before the date of hearing of the

appeal.

List the appeal for hearing on 3rd March 2021.

Till the appeal is heard or until further orders, whichever is earlier,

the respondents shall not take out or proceed with any execution

application to enforce the award in question.

The stay application (GA No. 1 of 2021) is disposed of.

(I. P. MUKERJI, J.)

(SUBHASIS DASGUPTA, J.)

R. Bose