Jammu & Kashmir High Court - Srinagar Bench
Chinar Steel Industries vs Ircon International Ltd on 9 May, 2022
Serial No. 06
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPAC No. 5/2018
IA No. 01/2018
Chinar Steel Industries.
... Appellant(s)
Through: -
Mr. R.A. Jan, Senior Advocate with
Mr. Aswad Attar, Advocate.
V/s
Ircon International Ltd.
... Respondent(s)
Through:-
Mr. N. A. Baba, Advocate.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr Justice Puneet Gupta, Judge.
ORDER
Magrey (J);
01. Maintainability of the Letters Patent Appeal filed against the order of
the learned Single Bench passed on 19th July 2018 in Review Petition No.
21/2013 arising out of the orders passed by the Designated Judge under
Section 11 of the Arbitration and Conciliation Act, 1997 (for short the Act),
is to be decided before proceeding further in the matter.
02. Shortly summarizing, the order under appeal is passed in the review
petition, wherein the appellant sought review of judgment and order dated
16.08.2013 passed in arbitration application No. 08 of 2009 under section 11
(6) of the Act, in terms whereof, the learned Single Bench, on consideration
of the matter and after hearing the counsel for the parties, dismissed the review
petition being without merit. Needless to mention that the application under
section 11 of the Act, seeking orders, has been dismissed on the ground of
jurisdiction of the court. The appellant filed review petition seeking review of
the order passed by the learned Single Bench, which got dismissed.
IA No. 01/2018
03. Mr. R. A. Jan, learned senior counsel appearing on behalf of appellant
submits that the appeal is maintainable as the same arises out of the orders
passed by the learned Single Bench in review with reference to application of
Rule 65 of J&K High Court Rules and Order 47 of the Civil Procedure Code.
It is submitted that the order impugned passed by the learned Single Bench in
independent proceedings of the review petition, therefore, the Letters Patent
Appeal is maintainable.
04. Mr. N. A. Baba, learned counsel appearing for the respondent submits
that the order passed by the learned Single Bench in the application under
section 11(6) of the Act is not appealable under Clause 12 of Letters Patent in
view of law laid by the Hon'ble Supreme Court in case titled SBP & Co. v.
Patel Engineering Ltd. & Anr reported in (2005) 8 Supreme Court Cases
618.
05. We have heard the learned appearing counsel for the parties, perused
the pleadings on record and have considered the matter.
06. The contention of Mr. R. A. Jan, learned senior counsel appearing on
behalf of appellant that the judgment of the Hon'ble Supreme Court referred
to and relied upon by Mr. N. A. Baba, learned appearing counsel for the
respondent, is not applicable to the fact circumstances of the case, has no
substance. The contention of learned senior counsel that the order passed in
review petition is an independent proceeding, is also having no merit. In fact,
the order which is challenged in the appeal is passed in a review petition
seeking review of the order passed under section 11(6) of the Act, therefore,
the learned Single Bench has while dismissing the review petition, maintained
the order passed under section 11(6) of the Act, which cannot be challenged
IA No. 01/2018
in Letters Patent Appeal and only remedy available to the appellant is to file
Special Leave Petition before the Hon'ble Supreme Court, if so choosen.
07. What is important to notice is that the impugned order amounts to
maintaining the order of the single Bench passed under section 11 (6) of the
Act, which is not appealable in view of the laid down by the Hon'ble Supreme
Court in the judgment supra. It is held by the Hon'ble Supreme Court that the
order passed by the Chief Justice of the High Court or by the Designated Judge
of that court is a judicial order, an appeal will lie against that order only under
Article 136 of the Constitution to the Supreme Court.
08. In the above background, we do not find the appeal maintainable, as
such, same shall stand dismissed, with liberty to the appellant to avail the
remedy as available under law. There shall, however, be no order as to costs.
(Puneet Gupta) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR:
09.05.2022
"Hamid"
i. Whether order is reportable? Yes/ No.
ii. Whether order is speaking? Yes/ No.
ABDUL HAMID BHAT
2022.05.10 10:15
I attest to the accuracy and
integrity of this document
