IN THE HIGH COURT OF BOMBAY AT GOA APPEAL UNDER ARBITRATION ACT NO. 2 OF 2008 M/S. PREMIER BUILDERS THROUGH PROPRIETOR DOMINIC ISAAC REPR. ATTORNEY GURUDAS BHANDANKAR ... Appellant Versus M/S. HIMACHAL FUTURISTIC COMMUNICATIONS LTD ... Respondent Mr. Sudesh Usgaonkar, Advocate for the Appellant. Mr. N. N. Sardessai, Advocate for the respondent. Coram:- S. C. DHARMADHIKARI, J. Date:- 19th September, 2008 P.C. 1. At the hearing of this appeal, which is directed against an order of the learned Arbitrator, on an application raising the issue of existence and validity of the arbitration agreement, a preliminary objection is raised by Shri Sardessai appearing for the respondent that the appeal would not lie to this Court, but to the Court as defined in Section 2(e) of the Arbitration and Conciliation Act, 1996 (`the Act' for short). Shri Usgaonkar, appearing for the appellant would contend that what the learned Arbitrator has done is passed an Award which could be termed as an interim award on the objections raised by the respondent and since the subject-matter of the arbitration far exceeds the pecuniary limits of the Court as defined in Section 2(e) of the Act, even otherwise, no purpose will be served by approaching the said Court. 2. That apart, his contention is that the appeal lies under Section 37 of the Act and it cannot be urged by any stretch of imagination that the Legislature intended to create two forums for deciding the appeal. 3. Once an appeal against an order of the Court lies to the Court authorised to hear the appeals from an original decree, then, the same meaning should be assigned to the term `Court' appearing in sub-section (e) of Section 2 of the Act. Therefore, looked at from any angle, an appeal is maintainable. 4. The Sole Arbitrator had passed the impugned Award on the preliminary objection raised by the respondent before him. He has passed this Award under Section 16 of the Act, holding that there is no arbitration agreement and consequently, he has no jurisdiction to decide the dispute. The preliminary objection raised by the respondent was that there is no arbitration agreement in existence and, therefore, the arbitrator would have no jurisdiction. It is this Award dated 31.1.08 which is impugned in this appeal. 5. Section 16 of the Act falls under Chapter IV, dealing with jurisdiction of arbitral tribunals. Sub-section (1) thereof states that the arbitral Tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement. Sub-Section (2) states that a plea of jurisdiction shall be raised not later than the submission of the statement of defence and a party is not precluded from raising such a plea merely because he has appointed or participated in the appointment of an arbitrator. Further, a plea regarding the Tribunal exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. Sub-Section (5) states that the arbitral Tribunal shall decide the plea raised before it. 6. Section 37 provides for Appealable orders. It falls under Chapter IX entitled as "Appeals". Sub-Section (1) thereof covers a situation where the Court passes an order granting or refusing to grant any measure under Section 9 and where the Court refuses or sets aside arbitral award in its jurisdiction under Section 34 of the Act. That is an appeal from one Court to another Court. That is an appeal from the order of the Court which, in law, is empowered to pass an original decree to the Appellate Court. That is an appeal which lies to the Court authorised to hear the appeals from the original decree. Naturally, therefore, sub-section (1) of Section 37 deals with appeals from orders made by the Court. Sub-Section (2) of Section 37 deals with an appeal from the orders of the arbitral Tribunal. That appeal lies to the Court. That an appeal is provided where a plea referred to in sub-sections (2) and (3) of Section 16 is accepted or interim measure under Section 17 is granted or refused by the arbitral Tribunal. Sub-section (3) of Section 37 bars second appeal. 7. Therefore, it is not possible to accept the contention of the appellant that the present appeal lies to this Court. This is, admittedly, an appeal from an order of the arbitral Tribunal. That appeals lies to a Court. The term `Court' is defined in Section 2(e) of the Act to mean a principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or a Court of Small Causes. Therefore, once an appeal is filed, challenging an order of the arbitral Tribunal under section 16, it is necessarily an appeal under Section 37(2) of the Act and it lies to a Court within the meaning of Section 2(e) of the Act. That definition and the concept cannot be ignored. It is not as if the legislature intented that all appeals, whether from orders made by the Court or by arbitral Tribunal, should lie to a single appellate Court. The legislature was very much aware of the definition of the term "Court" and where it refers to the said term and more particularly in Section 37 (1) and (2), its intention was clear that the appeals from orders made by a Court would lie to a Court authorised to hear the appeals against the orders from that Court and where orders are made by the arbitral Tribunal, the appeal must lie to a principal Civil Court of original jurisdiction in the district, having jurisdiction to decide the questions forming the subject-matter of the arbitration. 8. In the instant case, undisputed fact is that the appeal is filed straight to this Court and not to the Court within the meaning of Section 2(e) of the Act. This being the position and further it is undisputed that the High Court is not the Court in the present case within the meaning of Section 2(e) of the Act, it will have to be held that the present appeal is not maintainable. The appeal will, therefore, have to be returned to the appellant for presentation to a proper Court, and more particularly, the Court within the meaning of Section 2(e) of the Act. Needless to state that this Court has not ruled upon its competency to take up the matter and if, the issue of its jurisdiction is raised, the said Court shall address it uninfluenced by the present order. It is only because the appeal cannot be presented straight away to this Court, but must be presented in the Court of first instance, that the preliminary objection is raised and is, accordingly, upheld. The appeal is, therefore, directed to be returned for presention to the proper Court. No order as to costs. S. C. DHARMADHIKARI, J. ssm.