Sbec Systems (India) Ltd. vs Si-Al Bioenergie (France)
2005 Latest Caselaw 355 Del

JUDGMENT

1. The maintainability of this Appeal is under challenge as it is said to be not covered by the provisions under which it has been filed.

2. Three foreign awards were made on reference of disputes pertaining to investment made by the respondent with the appellant under the arbitration conducted by International Chamber of Commerce. Appellant filed objections to the award awarding Rs.10 crores with 18 per cent interest supporting it by an affidavit of its own Chief Manager (Finance) Sh. Sushil Kumar Aggarwal.

3. The appellant wanted to rely for the disposal of its objections on the record of the arbitration and an application was filed for production of same which was disposed of holding that whenever any dispute will arise regarding the veracity of any document, then the record will be called, however, subsequently on intimation by International Court of Arbitration that the record will be destroyed, they were directed to send the concerned record on an application of the appellant.

4. Though detailed record of arbitration proceeding was filed by the appellant and a detailed affidavit of its Chief Manager Sh. Sushil Kumar Aggarwal had already been filed, Appellant filed two applications (E.A. Nos.403 and 404) under Order 16 Rule 1 read with Section 151 of Code of Civil Procedure, praying:-

E.A.403 of 2004

a) Permit the Applicant to summon and produce Shri Sushil K. Agrawal and Shri S.S. Agarwal as its witnesses; and

b) Permit the applicant to produce the said Shri Sushil K. Agrawal and Shri S.S. Agarwal for their cross examination and

c) pass such further order or directions as this Hon'ble Court may deem just and appropriate on the facts and circumstances of the case.

E.A.404 of 2004:

a) permit the Applicant to summon and produce Shri Sushil K. Agrawal as a witness for his examination in chief and corss examination, if any, by the Claimant.

b) permit the Applicant to summon and produce Shri S.S. Agarwal as its witness for his examination-in-chief and cross examination, if any, in support of the Applicant's Objections to the enforcement of the Award dated 24th October, 2003; and

c) pass such further order or directions as may be just and appropriate on the facts and circumstances of the case.

5. The appellant contended that in terms of Section 48 of the Arbitration and Conciliation Act, 1996, it was required to furnish proof in support of his objections regarding non-enforceability of awards dated 19.5.2003 and 24.10.2003 and, therefore, it be permitted to summon Shri Sushil K. Agarwal and Shri S.S. Agarwal who had participated in the proceedings before the learned Arbitrator for oral examination to furnish proof in support of its objections.

6. The respondent contested these applications contending that the whole purpose in filing these was to delay the proceeding and that Shri Sushil K. Agarwal had already filed a detailed affidavit and his oral examination was not required in the facts and circumstances. It was also pointed out that voluminous documents filed by the appellant had not been denied.

7. The learned Single Judge dismissed these applications by order dated 7.10.2004 holding that the whole purpose of 1996 Act would be completely defeated if permission was granted to the appellant/judgment debtor to lead oral evidence when the objections against the arbitral awards were consideration. The learned Judge referred to the Supreme Court judgment in F.C.I. v. Indian Council for Arbitration and observed that the Act contemplated expeditious disposal of the objections and the minimal inference by the Court.

8. The appellant has filed the present appeal impugning the order dated 7.10.2004 of the learned Single Judge dismissing these applications seeking to summon and produce Shri Sushil K. Agarwal and Shri S.S.Agarwal for their oral examination and their cross examination in order to prove the objections of the appellant. The appeal has been filed under section 50 of the Arbitration and Conciliation Act read with section 104 and Order 43 and Order 21 rule 58 of Code of Civil procedure and also under Section 10 of Delhi High Court Act.

9. The respondent questions the maintainability of the appeal and claims that it would not be under any of the stated provisions. Whether the Appeal could be maintained under these provisions is the question.

10. An appeal is a creature of the statute and a party does not enjoy any right of Appeal unless it is conferred by the Statute. If it is not provided under the Statute, a party does not enjoy any right to Appeal unless it is conferred by the Statute.

If it is not provided under the Statute, the Appeal would not lie. This is an established legal position and it would be labouring on the obvious to refer to several judgments to support this.

11. The present Appeal is not covered under Section 50 of the Arbitration and Conciliation Act, 1996 which provides for an Appeal against the orders refusing to refer the parties to arbitration under Section 45 or to enforce a foreign award under Section 48 of the 1996 Act. It reads:-

50. Appealable orders. - (1) An appeal shall lie from the order refusing to -

(a) refer the parties to arbitration under section 45;

(b) enforce a foreign award under section 48, to the court authorised by law to hear appeals from such order.

(2) 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.

12. This provision on its plain reading does not cover an order refusing to summon a witness for oral or cross-examination to prove the objections filed to the foreign award under Section 40 of the Arbitration Act. It can, therefore, be said that the present Appeal would lie under Section 50 of the Act.

13. The Appeal would also not lie under Section 104 read with Order 43 or under Order 21 Rule 58 of Code of Civil Procedure because the order impugned does not fall under any of the classes of orders specified in these provisions.

15. Section 10 of Delhi High Court Act provides:-

Section 10. Powers of Judge - (1) Where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub-Section (2) of Section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court.

16. The key expression in this provision is From the judgment of the Single Judge . In other words, the Appeal would lie only against the judgment of the Single Judge while he was exercising the civil original jurisdiction.

17. The word Judgment has received repeated attention and interpretation in various judgments of the Supreme Court and High Courts. Every order or adjudication passed or made by the Court may not be a judgment within the meaning of the word occurring in Section 10. It would amount to a judgment only if it decides any right or obligation of the parties, if it has the attribute of any finality attached to it or if its effect or impact is to put an end to a proceeding.

18. Interpreting the word `judgment' in clause 15 of the Letters Patent (Bomb), Supreme Court in Shah Babulal Khimji v. Jayaben D.Kania Whenever Trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the meaning of the Letters Patent. Every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned.

19. This Court also considered the connotation of this word `judgment' in Nishi Raj v. Pratap K. Kaula and held that the test was whether an order is intermediary or `interlocutory judgment' which affects the valuable right of property and before such an order can be a judgment, the adverse effect on the party must be direct and immediate rather than indirect and remote.

20. Applying these tests, the order impugned by the appellant declining to summon the witnesses for oral or cross-examination to prove objections to the award does not amount to a judgment within the meaning of the word in Section 10 of the Delhi High Court Act because it neither adjudicates upon nor decide any claim of the parties, nor is any finality attached to it, nor does it have the effect of ending any proceedings.

21. If the impugned order is not a judgment under Section 10 of Delhi High Court Act, it can't be a judgment under Clause 10 of the Letters Patent because the connotation of the word remains the same under both.

22. Appellant's reliance on Vanita M. Khanolkar v. Pragna M. Pai and others AIR 1998 Supreme Court 424, National Swing Thread Co. Ltd. v. Gems Shedwick and Brothers and Jugal Kishore Paliwal v. Sardar Sat Jit Singh and Anr. in this regard is misplaced. The facts of these cases are apparently distinguishable as in both these cases the order challenged were held to be `judgments.

23. In the circumstances, we have no hesitation to hold that the Appeal against the order impugned dated 7.10.2004 passed in E.A.Nos.403-404/2004 in Execution Petition 240/2003 declining the application of the appellant to lead oral evidence is not maintainable either under Section 50 of Arbitration and Conciliation Act, 1996 or under Section 104, Order 43 CPC or for that matter under Section 10 of Delhi High Court Act, 1966 and/or under clause 10 of Letters Patent Act.

24. The appeal is accordingly held as not maintainable and is dismissed.