Jharkhand High Court
State Of Jharkhand Through The ... vs Webel Technology Limited on 9 December, 2022
C.M.P. No.221 of 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No.221 of 2022
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State of Jharkhand through the Secretary, Department of Information
Technology, Jharkhand Mantralaya, P.O.- Dhurwa, P.S.- Jagannathpur,
Ranchi- 834002 (Jharkhand)
.... .... .... Petitioner/Appellant/Petitioner
Versus
Webel Technology Limited, Having its Registered Office at Webel
Bhawan, Salt Lak, Electronic Complex, Sector-V, P.O. & P.S. & District-
Kolkata 700091, West Bengal
.... .... .... Opposite Party/Respondent/Opposite Party
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For the Petitioner : Mr. Devesh Krishna, Advocate
For the Opp. Party : Mr. Rupesh Singh, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court: Heard the parties.
2. This Civil Miscellaneous Petition has been filed by the petitioner
with a prayer for readmission of Arbitration Appeal No.06 of 2009 to its
original file which was dismissed for default on 03.02.2022.
3. It is submitted by the learned counsel for the petitioner that
Arbitration Appeal No.06 of 2009 was listed on 10.08.2020 and prayer for
adjournment was sought for by the petitioner-appellant. On 10.08.2020
this Court directed office to provide the copy of the memo of appeal on
deposit of Rs.500/- and granted adjournment subject to payment of cost of
Rs.1,000/- to the advocate of the respondent. Upon depositing Rs.500/- as
per the direction of this Court, the copy of memo of appeal was provided
to the appellant by the Registry and it is submitted that when the order
dated 10.08.2020 was passed, this Court was functioning in virtual mode
due to COVID-19 Pandemic and the consequential lockdown. It is then
submitted that because of the lockdown, the petitioner could not
immediately make the payment of cost for the adjournment amounting to
C.M.P. No.221 of 2022
Rs.1,000/-. It is then submitted that non-payment of cost of Rs.1,000/- to
the advocate for the respondent was not deliberate and in the meanwhile
on the last date of listing of this case i.e. on 02.12.2022, the said cost of
Rs.1,000/- has already been paid by the petitioner to the learned counsel
for the respondent and the learned counsel for the respondent has
received the said amount as is evident from the order dated 02.12.2022. It
is next submitted by the learned counsel for the petitioner that on
03.02.2022 when Arbitration Appeal No.06 of 2009 was listed then the
name of the counsel for the appellant to whom the appeal was assigned
i.e. Mr. Devesh Krishna was not appearing in the cause-list. Therefore,
Arbitration Appeal No.06 of 2009 could not be marked when the matter
was called out and nobody appeared before this Court when the said
Arbitration Appeal No.06 of 2009 was called out and consequently the
appeal was dismissed for default by this Court. Learned counsel for the
petitioner tenders unconditional apology for non-appearance when the
matter was called out for hearing by this Court as the same was not
deliberate and took place only on account of unavoidable circumstances
which were beyond the control of the advocate of the appellant namely
Mr. Devesh Krishna. It is then submitted that the appellant had no
knowledge about the dismissal of the said Arbitration Appeal No.06 of
2009 and the appellant could come to know about the same from the
District Court, Ranchi on 12.05.2022 where Arbitration Execution Case is
pending and after necessary enquiry and informing its advocate,
immediately this petition for readmission of the said Arbitration Appeal
No.06 of 2009 to its original file, has been filed. It is then submitted that
the petitioner-appellant has very good grounds to agitate in the said
Arbitration Appeal No.06 of 2009 and unless the same is restored to its
original file, the petitioner will be put to irreparable loss and injury and
the appellant/petitioner being the Department of Information Technology
of the State of Jharkhand will have to pay huge amount of public money
to the respondent/opposite party, which the respondent/opposite party
is not entitled to receive. Hence, it is submitted that the Arbitration
Appeal No.06 of 2009 be readmitted to its original file.
C.M.P. No.221 of 2022
4. Mr. Rupesh Singh- learned counsel for the respondent/opposite
party on the other hand vehemently opposes the prayer for readmitting
the said Arbitration Appeal No.06 of 2009 to its original file. Mr. Singh
submits that the petition for readmission of appeal having been filed
under Order XLI Rule 19 of the Code of Civil Procedure is not
maintainable in law in view of the fact that Arbitration Appeal No.06 of
2009 having been filed under Section 37 (1) (b) of the Arbitration and
Conciliation Act, 1996, the provision of Code of Civil Procedure is not
applicable to the proceedings of the Arbitration Appeal No.06 of 2009 as it
is a settled principle of law that Arbitration and Conciliation Act, 1996 is a
complete code itself. Relying upon the judgment of Hon'ble Supreme
Court of India in the case of Pam Developments Private Limited vs. State
of West Bengal reported in (2019) 8 SCC 112 wherein in the facts of that
case where the Hon'ble Supreme Court of India was considering the effect
of Section 36 of Arbitration Act vis-à-vis the provision of Order XXVII
Rule 8A of the Code of Civil Procedure, observed as under in paragraphs-
19 and 20:-
"19. In this backdrop, we have now to consider the effect of Section
36 of the Arbitration Act, vis-à-vis the provisions of Order 27 Rule 8-A
CPC. Sub-section (3) of Section 36 of the Arbitration Act mandates that
while considering an application for stay filed along with or after filing of
objection under Section 34 of the Arbitration Act, if stay is to be granted
then it shall be subject to such conditions as may be deemed fit. The said
sub-section clearly mandates that the grant of stay of the operation of the
award is to be for reasons to be recorded in writing "subject to such
conditions as it may deem fit". The proviso makes it clear that the Court
has to "have due regard to the provisions for grant of stay of a money
decree under the provisions of the Code of Civil Procedure". The phrase
"have due regard to" would only mean that the provisions of CPC are to be
taken into consideration, and not that they are mandatory. While
considering the phrase "having regard to", this Court in Shri Sitaram
Sugar Co. Ltd. v. Union of India [Shri Sitaram Sugar Co. Ltd. v. Union of
India, (1990) 3 SCC 223] has held that : (SCC p. 245, para 30)
"30. The words "having regard to" in sub-section are the
legislative instruction for the general guidance of the
Government in determining the price of sugar. They are not
strictly mandatory, but in essence directory".
C.M.P. No.221 of 2022
20. In our view, in the present context, the phrase used is
"having regard to" the provisions of CPC and not "in accordance with"
the provisions of CPC. In the latter case, it would have been mandatory,
but in the form as mentioned in Rule 36(3) of the Arbitration Act, it would
only be directory or as a guiding factor. Mere reference to CPC in the said
Section 36 cannot be construed in such a manner that it takes away the
power conferred in the main statute (i.e. the Arbitration Act) itself. It is to
be taken as a general guideline, which will not make the main provision of
the Arbitration Act inapplicable. The provisions of CPC are to be followed
as a guidance, whereas the provisions of the Arbitration Act are essentially
to be first applied. Since, the Arbitration Act is a self-contained Act, the
provisions of CPC will apply only insofar as the same are not inconsistent
with the spirit and provisions of the Arbitration Act."
and submits that in para-20 of the said judgment, the Hon'ble
Supreme Court of India has held that since Arbitration Act is a self-
contained Act, the provisions of C.P.C. will apply only insofar as the same
are not inconsistent with the spirit and provisions of the Arbitration Act.
Mr. Singh next submits that the purpose of Arbitration and Conciliation
Act, 1996 is for achieving the object of the speedy redressal of the
grievance pertaining to money claims and in order to curtail the delay in
disposal, hence, stringent provisions have been made with respect to
entitlement of one or other party to challenge any order under Arbitration
and Conciliation Act, 1996 within a specified frame of time. It is next
submitted by Mr. Singh that the petitioner-appellant was never prevented
by any sufficient cause for not appearing in the court when the case was
called out on 03.02.2022 and the excuse of COVID-19 pandemic is just to
suit the convenience of the petitioner-appellant for not turning up before
this Court when this appeal was called out for hearing or for non-
payment of cost. Mr. Singh next submits that even on 10.08.2020 though
the name of the learned counsel for the petitioner/appellant was not
appearing in the cause list, the appellant/petitioner appeared in
Arbitration Appeal No.06 of 2009 hence the same cannot constitute a
sufficient cause for the appellant/petitioner for non-appearance in the
court when the appeal was called out on 03.02.2022.
5. Mr. Singh next relies upon the judgment of the Hon'ble Supreme
Court of India in the case of reported in the case of Fuerst Day Lawson
C.M.P. No.221 of 2022
Limited vs. Jindal Exports Limited reported in (2011) 8 SCC 333 wherein
in the facts of that case the question before the Hon'ble Supreme Court of
India was "whether an order, though not appealable under Section 50 of the
Arbitration and Conciliation Act, 1996, would nevertheless the subject to appeal
under the relevant provision of the Letter Patent of the High Court?" or in other
words even though the Arbitration and Conciliation Act, 1996 does not envisage
or permit an appeal from the order, the party aggrieved by it can still have his
way, by surpassing the act and taking recourse to another jurisdiction; the
Hon'ble Supreme Court of India observed thus in paragraphs-89, 90 and
91:-
"89. It is, thus, to be seen that Arbitration Act, 1940, from its
inception and right through to 2004 (in P.S. Sathappan [(2004) 11 SCC
672] ) was held to be a self-contained code. Now, if the Arbitration Act,
1940 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 self-
contained code and exhaustive, then it must also be held, using the lucid
expression of Tulzapurkar, J., 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 appeal would be excluded by the 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.
90. We, thus, arrive at the conclusion regarding the exclusion of
a letters patent appeal 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 in the earlier provision of
appeal under Section 6 of the 1996 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.
91. In light of the discussions made above, it must be held that no
letters patent appeal will lie against an order which is not appealable under
Section 50 of the Arbitration and Conciliation Act, 1996."
6. In this respect, Mr. Singh also relies upon the judgment of the
Hon'ble Supreme Court of India in the case of Noy Vallesina Engineering
C.M.P. No.221 of 2022
Spa (now Known as Noy Ambiente Spa) v. Jindal Drugs Limited &
others reported in (2021) 1 SCC 382 wherein in the facts of that case where
the judgment of High Court was challenged before the Hon'ble Supreme
Court of India alleging that the judgment of High Court was erroneous
because it concludes that the proceedings under Section 34 of the
Arbitration and Conciliation Act, 1996 can be maintained to challenge the
foreign award as defined under the provisions of the Arbitration and
Conciliation Act, 1996. The Hon'ble Supreme Court of India observed as
under in paragraph-31:-
"31. This Court has not considered the merits of the substantive
challenge to the enforcement order, because the parties were not heard and
therefore, it would not be fair to comment on it. Further, Jindal has
proceeded on the assumption that its appeal to the Division Bench on this
aspect is pending. In view of the finding of this Court that such an appeal
(against an order of enforcement) is untenable by reason of Section 50, the
merits of Jindal's objections to the Single Judge's order, are open for it to
be canvassed in appropriate proceedings. Such proceedings cannot also be a
resort to any remedy under the Code of Civil Procedure. In the event Jindal
chooses to avail of such remedy, the question of limitation is left open, as
this Court is conscious of the fact that Fuerst Day Lawson [Fuerst Day
Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC
(Civ) 178] is a decision rendered over 10 years ago; it settled the law
decisively and has been followed in later judgments. It cannot be said that
Jindal was ignorant of the law."
7. Relying upon these judgments, it is submitted by Mr. Singh that as
the law laid down by the Hon'ble Supreme Court of India in the case of
Noy Vallesina Engineering Spa (now Known as Noy Ambiente Spa) v.
Jindal Drugs Limited & others (supra) has reiterated the law laid down
in Fuerst Day Lawson Limited vs. Jindal Exports Limited (supra) and the
same is the latest judgment and the same will prevail and will be the law
of the land under Article 141 of the Constitution of India. In support of his
contention that if two judgments of Benches of equal number of the judges
of the Hon'ble Supreme Court of India, cannot be reconciled then the later
of the two decisions will be followed by the High Courts and other courts.
Mr. Singh relies upon the judgment of a five Judge Bench of Hon'ble High
Court of Karnataka in the case of Govindanaik G. Kalaghatigi vs West
C.M.P. No.221 of 2022
Patent Press Co. Ltd. and Another reported in AIR 1980 Karnatka 92,
para-12 of which reads as under:-
"12. In view of the majority opinion, the answer to the question
referred to this Full Bench, is as follows :-
"If two decisions of the Supreme Court on a question of
law cannot be reconciled and one of them is by a larger Bench
while the other is by a smaller Bench, the decision of the larger
Bench, whether it is earlier or later in point of time, should be
followed by High Courts and other Courts. However, if both
such Benches of the Supreme Court consist of equal number of
Judges, the later of the two decisions should be followed by High
Courts and other courts".
and also relies upon the judgment of a full Bench judgment of
Hon'ble High Court of Karnataka in the case of M. M. Yaragatti vs Vasant
and others reported in AIR 1987 KARNATAKA 186 para-23 of which
reads as under:-
"23. Coming to the Special Leave Petition in Krishnadas Bhatija's
case, it is correct that that petition arose out of the provisions of the
Karnataka Rent Act. It was sought to be argued by the learned counsel for
the respondents that the said decision was rendered without issuing notice
to the respondents and that the same did not lay down any law. It was also
submitted that in view of the Full Bench decision of this Court in
Govindanaik G. Kalaghatgi v. West Patent Press Co. Ltd., AIR 1980 Kant
92, if there is any conflict between the decision of co-equal Benches of the
Supreme Court, then the later view should be followed. In this view of the
matter, with respect, we have to follow the view in Aundal Ammal's case
(AIR 1987 SC 203) which is later in point of time."
8. Mr. Singh also relies upon the judgment of the Hon'ble Supreme
Court of India in the case of Mahanagar Telephone Nigam Limited v.
Applied Electronics Limited reported in (2017) 2 SCC 37 wherein in the
facts of that case wherein the High Court by the order impugned before
the Hon'ble Supreme Court of India opined that cross-objection preferred
by the respondent was maintainable and accordingly entertained the
cross-objection by expressing the view that the provisions of Code of Civil
Procedure is applicable to an appeal preferred under Section 37 of the
Arbitration and Conciliation Act, 1996, the Hon'ble Supreme Court of
India expressed the view that the judgment rendered by the Hon'ble
C.M.P. No.221 of 2022
Supreme Court of India in the case of ITI Limited. vs. Siemens Public
Communications Network Ltd. reported in (2002) 5 SCC 510 is a binding
precedent but the analysis made in the judgment of ITI Limited. vs.
Siemens Public Communications Network Ltd. (supra) to the effect that
merely because Arbitration and Conciliation Act, 1996 does not provide
for the provisions of the C.P.C. to be applicable in Arbitration and
Conciliation matters, it should not be inferred that the provisions of the
Code of Civil Procedure, is inapplicable and it seems to be incorrect as the
scheme of Arbitration and Conciliation Act, 1996 clearly envisages
otherwise and the legislative intendment also so postulates and the
Hon'ble Supreme Court of India expressed the view that it was unable to
follow the view expressed in ITI Limited. vs. Siemens Public
Communications Network Ltd. (supra) and the said decision in ITI
Limited. vs. Siemens Public Communications Network Ltd. (supra)
deserves to be reconsidered by a larger Bench but did not set aside the
judgment of the High Court by observing thus in paragraphs-27 and 28 of
Mahanagar Telephone Nigam Limited v. Applied Electronics Ltd.
(supra) which read as under:-
"27. Section 5 which commences with a non obstante clause
clearly stipulates that no judicial authority shall interfere except where so
provided in Part I of the 1996 Act. As we perceive, the 1996 Act is a
complete code and Section 5 in categorical terms along with other
provisions, lead to a definite conclusion that no other provision can be
attracted. Thus, the application of CPC is not conceived of and, therefore,
as a natural corollary, the cross-objection cannot be entertained. Though
we express our view in the present manner, the judgment rendered in ITI
Ltd. [ITI Ltd. v. Siemens Public Communications Network Ltd., (2002) 5
SCC 510] is a binding precedent. The three-Judge Bench decision in
International Security & Intelligence Agency Ltd. [MCD v. International
Security & Intelligence Agency Ltd., (2004) 3 SCC 250] can be
distinguished as that is under the 1940 Act which has Section 41 which
clearly states that the procedure of CPC would be applicable to appeals.
The analysis made in ITI Ltd. [ITI Ltd. v. Siemens Public
Communications Network Ltd., (2002) 5 SCC 510] to the effect that
merely because the 1996 Act does not provide CPC to be applicable, it
should not be inferred that the Code is inapplicable seems to be incorrect,
for the scheme of the 1996 Act clearly envisages otherwise and the
legislative intendment also so postulates.
C.M.P. No.221 of 2022
28. As we are unable to follow the view expressed in ITI Ltd. [ITI
Ltd. v. Siemens Public Communications Network Ltd., (2002) 5 SCC 510]
and we are of the considered opinion that the said decision deserves to be
reconsidered by a larger Bench. Let the papers be placed before the Hon'ble
the Chief Justice of India for constitution of an appropriate larger Bench."
(Emphasis supplied)
Hence, it is submitted by Mr. Singh that this petition for
readmission of Arbitration Appeal No.06 of 2009 being without any merit,
be dismissed.
9. Mr. Devesh Krishna by way of reply on points of law submits that
the Hon'ble Supreme Court of India in the case of ITI Limited. vs.
Siemens Public Communications Network Ltd. (supra) in the facts of
that case where the principal question for consideration was "whether a
revision petition under Section 115 of the Code of Civil Procedure lies to the High
Court against an order made by a Civil Court in an appeal preferred under
Section 37 of the Arbitration and Conciliation Act, 1996 and if so whether on the
facts and circumstances of that case such remedy by way of revision is an
alternate and efficacious remedy or not?" was before the Hon'ble Supreme
Court of India, the Hon'ble Supreme Court of India observed as under in
paragraphs-10 and 11 of Mahanagar Telephone Nigam Limited v.
Applied Electronics Ltd. (supra) and which read as under:-
"10. On a perusal of the said provision, in juxtaposition with the
provisions contained in the 1996 Act, it seems to us that the legislature has
intentionally not kept any provision pertaining to the applicability of CPC.
On the contrary, Section 5 of the 1996 Act lays the postulate, that
notwithstanding anything contained in any other law for the time being in
force in matters covered by Part I, no judicial authority shall intervene
except so provided wherever under this Act.
11. In ITI Ltd. [ITI Ltd. v. Siemens Public Communications
Network Ltd., (2002) 5 SCC 510] the assail was to the judgment and order
of the 10th Additional City Civil Judge, Bangalore passed in a
miscellaneous appeal. The said appeal was preferred against an interim
order passed by the Arbitral Tribunal. The principal question that emerged
for consideration before this Court was whether a revision petition under
Section 115 CPC lies to the High Court against an order made by the civil
court in an appeal preferred under Section 37 of the Act. It is necessary to
C.M.P. No.221 of 2022
note here that the appellant therein instead of moving the High Court had
approached this Court directly. Be that as it may. Hegde, J. in his opinion,
analysing the scope of Section 5 has opined thus: (SCC p. 517, para 13)
"13. We also do not find much force in the argument of
the learned counsel for the appellant based on Section 5 of the
Act. It is to be noted that it is under this Part, namely, Part I of
the Act that Section 37(1) of the Act is found, which provides for
an appeal to a civil court. The term "court" referred to in the
said provision is defined under Section 2(1)(e) of the Act. From
the said definition, it is clear that the appeal is not to any
designated person but to a civil court. In such a situation, the
proceedings before such court will have to be controlled by the
provisions of the Code, therefore, the remedy by way of a revision
under Section 115 of the Code will not amount to a judicial
intervention not provided for by Part I of the Act. To put it in
other words, when the Act under Section 37 provided for an
appeal to the civil court and the application of the Code not
having been expressly barred, the revisional jurisdiction of the
High Court gets attracted. If that be so, the bar under Section 5
will not be attracted because conferment of appellate power on
the civil court in Part I of the Act attracts the provisions of the
Code also." (Emphasis supplied)
10. Mr. Krishna next submits that in the case of Mahanagar Telephone
Nigam Limited v. Applied Electronics Ltd. (supra) it has been held by
the Hon'ble Supreme Court of India itself that the judgment of ITI
Limited. vs. Siemens Public Communications Network Ltd. (supra) is a
binding precedent and though the matter has been referred to the larger
Bench but as on date the judgment passed by the Hon'ble Supreme Court
of India in ITI Limited. vs. Siemens Public Communications Network
Ltd. (supra) has not been over ruled, hence the ratio of the said judgment
still holds the field. In support of this contention of him, Mr. Krishna relies
upon the judgment of Hon'ble Single Judge of Hon'ble Madras High
Court in the case of Union of India, Rep. by Chief Engineer, Rep. by
Garrison Engineer vs. Dhirubhai D. Thumba & Co. and Another
reported in C.M.P. No.18726 of 2021 dated 05.01.2022 paragraph-9 of
which reads as under:-
"9. It is the case of the learned counsel appearing for the 1st
respondent that Arbitration and Conciliation Act is self contained Code
C.M.P. No.221 of 2022
and enacted for speedy disposal of arbitration proceedings. As per Section 5
of Arbitration and Conciliation Act 1996, applicability of provisions of
other Acts excluded unless specifically provided in the Arbitration Act.
The said contention is applicable only to the proceedings before the
Arbitrator. Once award is passed and parties initiate proceedings
challenging the proceedings of Arbitrator, provisions of the Code of Civil
Procedure is applicable to the said proceedings. In the judgment reported
in 2007 (6) MLJ 570, the Madurai Bench of this Court has considered the
judgment of the Hon-ble Apex Court reported in AIR 2002 SC 2308, [ITI
Ltd. Vs. Siemens Public Communications Networks Ltd.] and (2006) 1
MLJ 657, [Om Sakthi Renerigies Ltd. Vs. Megatech Control Ltd.] and in
paragraph Nos.30 & 31 held that Court defined under Section 2(e) of the
Arbitration Act can exercise the power conferred under the provisions of
the Code of Civil Procedure. The relevant portion of the said judgment has
been extracted hereunder for easier reference.
".... 30. Judicial intervention is permissible in any matters
arising out of Sections 9, 27,34, 36 and 37 in part-I of the Act
and provisions of the Code of Civil Procedure are applicable to
such proceedings."
11. Mr. Krishna next relies upon the judgment of the Hon'ble Supreme
Court of India in the case of Municipal Corporation of Greater Mumbai
and Another v. Pratibha Industries Ltd. and others reported in (2019) 3
SCC 203 paragraph-10 of which reads as under:-
"10. Insofar as the High Courts' jurisdiction to recall its own
order is concerned, the High Courts are courts of record, set up under
Article 215 of the Constitution of India. Article 215 of the Constitution of
India reads as under:
"215. High Courts to be courts of record.--Every High Court
shall be a court of record and shall have all the powers of such a
court including the power to punish for contempt of itself."
It is clear that these constitutional courts, being courts of record, the
jurisdiction to recall their own orders is inherent by virtue of the fact that
they are superior courts of record. This has been recognised in several of
our judgments."
and submits that in none of the judgments relied upon by the
learned counsel for the respondent/opposite party the issue before the
Hon'ble Supreme Court of India was the procedure to be adopted in an
C.M.P. No.221 of 2022
appeal filed under Section 37 of the Arbitration and Conciliation Act,
1996. It is submitted by Mr. Krishna that Arbitration and Conciliation Act,
1996 do not contain any provision for dismissing the appeal filed under
Section 37 of the Arbitration and Conciliation Act, 1996 for default of the
appellant. So, if this Court subscribes to the view that the provisions of
Code of Civil Procedure is not applicable to an appeal filed under Section
37 of the Arbitration and Conciliation Act, 1996; that will lead to an
absurd situation where the appellant after filing the appeal will not come
to court then the appeal will remain pending in the appellate court; years
together unnecessarily as in the absence of the applicability of the
provisions of the Code of Civil Procedure as is applicable to the procedure
of the appeal then such appeal filed under Section 37 of the Arbitration
and Conciliation Act, 1996 cannot be dismissed and as by now it is a
settled principle of law as has been held by the Hon'ble Supreme Court of
India in several judgments in respect of criminal appeals that an appeal
cannot be disposed of by the court in the absence of the appellant so such
scheme of things will be contrary to the objective of the provisions of
Arbitration and Conciliation Act, 1996 which has been enacted for speedy
resolution of disputes.
12. It is next submitted that this Court being a Constitutional Court and
being a court of record, has jurisdiction to recall its own orders and such
power is inherent by virtue of the fact that this Court is a court of record.
Alternatively, it is submitted by Mr. Krishna that undisputedly the
proceedings of Arbitration Appeal No.06 of 2009 being a proceeding of
civil nature in the absence of any specific provision in Arbitration and
Conciliation Act, 1996 as to what will happen if the appellant will not turn
up after months and years together after filing of the appeal or for that
matter when the appeal is called out for hearing, the natural corollary in
view of the settled principles of law is that the procedure which is akin to
the Code of Civil Procedure is to be followed and as this Court has
dismissed the Arbitration Appeal No.06 of 2009 for default by using its
power, hence, this Court has also the power to recall the order passed by
it, if this court is satisfied that the appellant was prevented by sufficient
C.M.P. No.221 of 2022
cause from appearing in the court when the appeal was called out for
hearing. In support of his contention that the jurisdiction of a Civil Court
is determinable by application of the provisions of the Civil Procedure
Court once the matter goes out of the hands of tribunal to the Civil Court
and the provisions, contained in the Civil Procedure Code are applicable
to all the proceedings, i.e., orders or appeals arising out of provisions of
the Arbitration Act, Mr. Krishna relies upon the judgment of Hon'ble
Supreme Court of India in the case of International Airports Authority of
India vs M.L. Dalmia & Co. Ltd. as reported in (2002) 6 Supreme 567
paragraph-5 of which reads as under:-
"5. Having perused the contents of the application for restoration
supported by affidavit, we find that the appellant did try to explain the
absence on 10-7-2001 but the explanation so offered did not appeal as
plausible to the High Court, specially in view of the earlier conduct of the
appellant which weighed heavily with the High Court resulting in denial of
indulgence being shown to the appellant. Looking at the stakes involved
and keeping in view the weighty consideration that so far as practicable, a
litigant ought not to be denied a hearing on merits, we are inclined, in the
facts and circumstances of this case, to allow the appellant one more
opportunity of hearing in the appeal on merits by restoring the same on the
file of the High Court, but subject to terms." (Emphasis supplied)
13. In this respect, Mr. Krishna also relies upon the judgment of
Hon'ble Madras High Court Madurai Bench in the case of Srikumar
Textiles (P) Ltd. & Others vs. Sundaram Finance Ltd. reported in 2007 0
Supreme (Mad) 1542 paragraphs-30 and 31 of which reads as under:-
"30. The extent of judicial intervention or the restriction placed on
the Court is confined only to the proceedings pending before the Arbitral
Tribunal to the extent so provided under the Act. In other words, the
provisions of the Code of Civil Procedure, may not be applicable to the
proceedings pending before the Arbitral Tribunal except so provided in
part-I of the Act. The jurisdiction of a Civil Court is determinable by
application of the provisions of Civil Procedure Code. Once the matter goes
out of the hands of the Arbitral Tribunal to the Civil Court, the provisions,
contained in the Civil Procedure Code are applicable to all the proceedings,
i. e., orders or appeals arising out of provisions of Arbitration Act. Since
the proceedings before the Court are of civil nature, whatever procedure
applicable and followed for other civil proceedings, equally apply to the
proceedings arising out of orders passed under Sections 9, 27, 34, 36 and
37 of the Act. In view of the decision of the Supreme Court and this Court,
C.M.P. No.221 of 2022
the issue as to whether the civil Procedure Code is applicable to the
Arbitral proceedings pending on the file of the civil Court is no longer res
integra. The statute does not exclude the applicability of Civil Procedure
Code to the proceedings arising out of the Arbitration Act. The non-
obstante clause in Section 5 of Act does not take away the powers of the
Principal Civil Court i. e., original jurisdiction in a District of the High
Court in applying the Civil Procedure Code, while deciding the matters
arising out of the Act. As regards the decision made by the Arbitral
Tribunal, any party aggrieved by the decision can apply to the Civil Court
under Section 34 of the Act to set aside the award. Judicial intervention is
permissible in any matters arising out of Sections 9, 27, 34, 36 and 37 in
part-I of the Act and provisions of the Code of Civil Procedure Code are
applicable to such proceedings.
31. Once the Court defined under Section 2(e) of the Act exercises
powers of a Civil Court it is not a persona designata, the powers of the
Civil Court are not curtailed by the non-obstante clause in Section 5 of the
Act, except so provided in part 1 of the Act. If the defaulting party offers
sufficient cause for his absence, the application for restoration is
maintainable in law as it is a proceeding emanating from the orders passed
under Section 34 of the, Act. For the reasons stated supra, the contention
of the learned counsel for the respondent that the restoration applications
are not maintainable, cannot be countenanced in law. Therefore, this Court
considered opinion that the lower Court has manifestly erred in dismissing
the applications filed for restoration dealing with the revenant provisions
of the Arbitration Act and failed to consider the judgment of the Supreme
Court in I. T. I. Ltd. v. Siemens Public Communications Networks Ltd. I.
T. I. Ltd. v. Siemens Public Communications Networks Ltd. I. T. I. Ltd. v.
Siemens Public Communications Networks Ltd. (supra). Therefore, the
applications filed under Order 9Rule 9 read with Section 151 Code of Civil
Procedure, for restoration of the Arbitration Original petitions which were
dismissed for default on 13.10.2004, are maintainable in law."
14. In this respect, Mr. Krishna also relies upon the judgment of
Hon'ble Punjab and Haryana High Court in the case of M/s. AA
Enterprises vs. Er.J.S. Sekhon reported in 2009 SCC OnLine P&H 1.
15. Having heard the submissions made at the Bar and after going
through the materials in the record, this Court is of the considered view
that true it is, that in the case of Mahanagar Telephone Nigam Limited v.
Applied Electronics Ltd. (supra), the Hon'ble Supreme Court of India has
expressed the view that the decision of the Hon'ble Supreme Court of
C.M.P. No.221 of 2022
India in the case of ITI Limited. vs. Siemens Public Communications
Network Ltd. (supra) deserves to be considered by a larger Bench but in
the said judgment the Hon'ble Supreme Court of India has expressed the
view that the judgment rendered in ITI Limited. vs. Siemens Public
Communications Network Ltd. (supra) is a binding precedent. In none of
the judgments relied upon by the learned counsel for the respondent, the
issue before the Hon'ble Supreme Court of India was whether Rule 17 and
19 of Order XLI of the Code of Civil Procedure is applicable to the appeals
filed under Section 37 of the Arbitration and Conciliation Act, 1996. It is a
settled principle of law that all the judicial proceedings of civil nature
which have arisen from any special self-contained code which does not
have any particular provision to regulate the procedural aspect of the
proceeding, the procedure akin to the provisions of C.P.C. will apply to
such proceedings of civil nature insofar as the same are not inconsistent
with the spirit and provisions of the special statute. Now coming to the
case in hand the Arbitration and Conciliation Act, 1996 provides filing of
appeal under section 37 but though it is a self-contained code yet there is
no specific provision provided to regulate the procedure of the appeals
filed under the said provision of law. There is no specific provision in the
Arbitration and Conciliation Act, 1996 as to what will happen if the
appellant will not turn up before the appellate court when the appeal is:
for hearing. Without any doubt the appeal envisaged under section 37 of
the Arbitration and Conciliation Act, 1996 is a proceeding of civil nature
hence this court is of the considered view that in the absence of any
specific bar in the Arbitration and Conciliation Act, 1996 for applying the
provisions of the Code of Civil Procedure, 1908, the procedure laid down
for the appeals under rule 17 and 19 of order XLI Of the Code of Civil
Procedure, 1908 can be applied to the appeal filed under section 37 of the
Arbitration and Conciliation Act, 1996.
16. Otherwise also as has been held by the Hon'ble Supreme Court of
India in the case of Municipal Corporation of Greater Mumbai and
Another v. Pratibha Industries Ltd. and others (supra), this Court being a
Constitutional Court and being a court of records, has the jurisdiction and
C.M.P. No.221 of 2022
inherent power to recall its own orders. Further, if a view is adopted that
under no circumstances the Civil Court exercising the jurisdiction of
Section 37 of the Arbitration and Conciliation Act, 1996 can dismiss an
appeal filed under Section 37 of the Arbitration and Conciliation Act,
1996, on the ground that there is no specific provision in the Arbitration
and Conciliation Act, 1996 that in case the appellant will not turn up
before the appellate court, when the appeal is called out for hearing, such
appeal can be dismissed for default of the appellant, the same will lead to
an absurdity where if the appellant will not appear before the court for
years together after filing the appeal unnecessarily, the appeal will drag
on and the very purpose of enactment of the Arbitration and Conciliation
Act, 1996 will be frustrated. One the other hand, once it is held that the
Court has jurisdiction to dismiss the appeal filed under Section 37 of the
Arbitration and Conciliation Act, 1996 for default of the appellant when
the appeal is called out for hearing and the court can dismiss such appeal
in exercise of its inherent power or adopting a procedure akin to the Code
of Civil Procedure to this limited extent, it will also vest the court with the
jurisdiction to readmit such appeal in appropriate cases where the
appellant comes with a sufficient cause for its default in appearing when
the appeal was called out for hearing.
17. In view of the judgment of the Hon'ble Supreme Court of India in
the case of ITI Limited. vs. Siemens Public Communications Network
Ltd. (supra) as the same is a binding precedent, this Court is of the
considered view that the appellate court which has been vested with the
jurisdiction to entertain the appeal under Section 37 of the Arbitration and
Conciliation Act, 1996 has the power to dismiss such appeal for default in
case the appellant do not appear when the appeal is called out for hearing
by applying the principle akin to Order XLI Rule 17 of the Code of Civil
Procedure and in case the appellant satisfies the court with sufficient
cause for not appearing in the court at the time when the appeal was
called out for hearing then the court which dismiss the appeal for default
has the jurisdiction to readmit the same in appropriate cases.
18. Now, coming to the facts of this case, undisputedly the name of the
C.M.P. No.221 of 2022
counsel Mr. Devesh Krishna was not appearing in the cause-list and
undisputedly this Court was functioning in virtual mode because of
COVID-19 pandemic, when the appeal was dismissed for default. Under
such circumstances, this Court finds that the grounds set out by the
petitioner are sufficient for the appellant for not appearing in the court
when the appeal was called out for hearing.
19. Under such circumstances, Arbitration Appeal No.06 of 2009 is
readmitted to its original file and Registry is directed to list Arbitration
Appeal No.06 of 2009 before appropriate Bench in due course.
20. In the result, this C.M.P. is allowed on contest but under the
circumstances without any costs.
21. Since the instant C.M.P. has been disposed of, interlocutory
applications, if any, are disposed of being infructuous.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 09th of December, 2022
AFR/ Animesh
