Subhash Ch. Kakkar vs D.S.I.D.C.
1990 Latest Caselaw 152 Del

JUDGMENT

B.N. Kirpal, J.

(1) This is an appeal against an order passed by the single Judge dismissing the application for injunction filed by appellant.

(2) It appears that some arbitration proceedings between the parties bad been initiated. The appellant then filed O.M.P. No. 8/90, being an application u/S. 33 of the Arbitration Act. The prayers in the application, inter alia, were that the Court should bold that there was no legal, valid and subsisting arbitration agreement between the parties. An application for staying of the arbitration proceedings was also filed, which application has been dismissed by impugned order. It is against that order that the present appeal has been filed.

(3) At the outset, learned counsel for the appellant was required to satisfy us with regard to the maintainability of the appeal. Learned counsel submits that the Court trying the application is a Civil Court and relying upon O.N.G.C. vs. Western Co. of North American , it is contended that the orders which are passed by the single Judge are orders passed under the Civil Procedure Code , and therefore, an appeal is maintainable.

(4) We are unable to agree with the learned counsel for the appellant. In the present case, admittedly an application u/S. 33 of the Arbitration Act was filed. It is during the pendency of this application that the appellant moved an application for interim injunction. This could only have been filed by invoking the provisions of S. 41 of the Arbitration Act read with the Ii Schedule. It is by virtue of these two provisions that, in any arbitration proceedings pending in Court, the Court gets Jurisdiction to exercise powers u/s. 39, Civil Procedure Code . Therefore, when the Court passes an order u/s. 39, Civil Procedure Code ., during the pendency of any proceedings before it which have been commenced under any of the Section of Arbitration Act, the Court is in effect exercising its jurisdiction by virtue of the provisions of S. 41 of the Arbitration Act. Sec. 39 of the Arbitration Act clearly specifies what are the appealable orders. An order passed u/S. 41 of the Arbitration Act read with the IInd Schedule and 0. 39, R. 1 & 2, Civil Procedure Code . is not an appealable order. This has been held by this Court in D.B. decisions, namely, M/s. B. Lal Mohan vs. Punjab State Co-op. Air 1983 Delhi S02, United India Ins. Co. vs. Darbar W. Mills, 1984 Rajdhani L.R. 405.

(5) With regard to the decision relied upon by the learned counsel in U.O.I, vs. Bakhtawar Singh, 1985 Arbi. L.R. 67, the same is clearly distinguishable. There the Court held, while dealing with an application for making their award a rule of the Court, that the Court had no territorial jurisdiction to decide the same. The application under the Arbitration Act was, therefore, not entertained. It was on these circumstances that this Court held that order was not passed under the Arbitration Act but had been passed in exercise of its jurisdiction under the Civil Procedure Code . and was, therefore, appealable. It is pertinent to note that the D.B. did not consider it necessary to refer to earlier D.B. authorities regarding the maintainability of the appeal, namely, M/s. B. Lal's case and United India Ins. Company's case. These authorities are not referred to presumably because it was not necessary to do so as the question involved was quite different.

(6) The decision of Supreme Court in O.N.G.C. (supra) is not applicable because the Supreme Court was not concerned with the question as to whether an order passed disposing of an application u/S. 41 of Arbitration Act read with Und Schedule 0. 39, R. 1 & 2 was an appealable order or not. The Supreme Court did not even refer to the provisions of S. 39 or S. 41 of Arbitration Act. In that case the Supreme Court exercised its inherent jurisdiction to grant an injunction. No Jurisdiction was exercised under the Arbitration Act and the question whether an order disposing of an application for injunction was appealable or not did not even come up for consideration before the Court.

(7) Learned counsel also refers to the case of Orient Transport Co. vs. Jaya Bharat Co. . There a suit had been filed challenging the validity of a contract and it was held that S. 32 of the Arbitration Act did not take away the right of the Civil Court u/S. 9 to challenge the validity of the contract. In the present case, however, the petitioner has not filed a suit and what has been filed is an application u/S. 33 of the Arbitration Act and the same has also not been registered as a suit, and has been registered as O.M.P. In our opinion no assistance can be derived by the counsel for the appellant. For the aforesaid reasons, the appeal is dismissed.