ORISSA HIGH COURT: CUTTACK W. P.(C) NO. 19357 OF 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- Areva T & D. S.A.S and another …… Petitioners -Versus- Vedanta Aluminium Limited. …… Opp. Party For Petitioners : M/s. S.K.Padhi, Sr. Advocate, Gautam Mishra, and Dinesh Ku.Patra. For Opp. Party : M/s. B. Mohanty, A.C. Bal, M.S.Rizvi & J.Patnaik. ----------------------- Decided on 13.04.2011. ----------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS O R D E R M.M. DAS, J. This writ petition has been filed questioning the order dated 24.07.2010 passed by the learned Additional District Judge, Jharsuguda in F.A.O. No. 03 of 2009 dismissing the said appeal filed by the petitioners under Section 50 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’). The said F.A.O. was filed against the order dated 22.08.2009 passed by the learned Civil Judge (Junior Division), Jharsuguda dismissing the application filed by the petitioners under Section 45 of the Act by a common order along with I.A. No. 9 of 2009, which was filed by the opposite party-plaintiff under Order XXXIX Rules 1 and 2 C.P.C. 2. A preliminary objection was raised by the opposite party with regard to maintainability of the writ petition for which, the matter was heard on the question of maintainability at the preliminary stage. 3. It was contended by Mr. S.K. Padhi, learned senior counsel appearing for the petitioners that Section 50 of the Act mentions the orders, which are appealable and it clearly provides that order refusing to refer the parties to arbitration under Section 45 of the Act or refusing to enforce the foreign award under Section 48 of the Act is appealable before the court authorized by law to hear appeals from such orders. He further submitted that sub-section (2) of Section 50 provides that no Second Appeal shall lie from an order passed in appeal under the said section, though the parties may prefer appeal to the Supreme Court. He, therefore, submitted that since no Second Appeal is provided from the impugned order, a writ petition can be filed challenging the said order by seeking issuance of an appropriate order or writ quashing the impugned order. He relies upon the decision in the case of Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675 in support of his contention. In the said case, after amendment of Section 115 (1) proviso of 2 the Code of Civil Procedure by Act 46 of 1999 with effect from 01.07.2002 certain orders, which were previously revisable, were not amenable to revisional jurisdiction. In that context, the Supreme Court in the said case laid down that the order of the High Court dismissing the writ petition filed under Article 226 of the Constitution challenging the said impugned order by opining that the petition was not maintainable, cannot be sustained. The Supreme Court interpreting amendment of Section 115 C.P.C., answered the question as to the impact of amendment made to Section 115 C.P.C. with effect from 01.07.2002 on the power and jurisdiction of the High Court to entertain petitions seeking a writ of certiorari under Article 226 of the Constitution or invoking the power of superintendence under Article 227 of the Constitution as against similar orders, Acts or proceedings of the courts subordinate to the High Court, against which, earlier, remedy of filing civil revision under Section 115 C.P.C. was available to the person aggrieved and as to whether an aggrieved person is completely deprived of the remedy of judicial review, if he has lost at the hands of the original court and the appellate court, though a case of gross failure of justice having been occasioned can be made out ? The Supreme Court allowed the appeal by holding that the power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional 3 jurisdiction conferred on it. The curtailment of the revisional jurisdiction of the High Court under Section 115 C.P.C. by the Amendment Act 46 of 1999 does not take away and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor is the power of superintendence conferred on the High Court under Article 227 of the Constitution taken away or whittled down. The power exists untrammeled by the amendment in Section 115 C.P.C. and is available to be exercised subject to rules of self discipline and practice which are well settled. 4. Mr. Mohanty, learned counsel for the opposite party, however, per contra, submits that this is not a case where the amendment to Section 115 C.P.C. comes into picture. The impugned order passed by the learned lower appellate court was one under section 50 of the Act. An application under Section 45 of the Act was filed by the petitioners before the learned Civil Judge (Junior Division), Jharsuguda by way of an interim application in Civil Suit No. 13 of 2009 where the petitioners were the defendants. The suit was filed by the opposite party as plaintiff for a declaration that there was no enforceable contract between the plaintiff and the defendants either through letter of award dated 18.04.2008 or through any subsequent correspondence thereafter and all the correspondence letters 4 issued between the plaintiff and the defendants do not constitute any legal contract in connection with letter of award dated 18.04.2008. The plaintiff also prayed to permanently restrain the defendants from utilizing the letter of award dated 18.04.2008 in any manner for any purpose whatsoever. 5. In the application under section 45 of the Act, the petitioners quoting the arbitration clause in the letter of award dated 18.04.2008 issued by the plaintiff-opposite party contended that the said trial court had no jurisdiction to try any matter in connection with the said agreement, which stands ousted by the arbitration clause. It also pleaded that in terms of Section 45 of the Act, the trial court is bound to refer any matter pending before lit which is covered by such an agreement of arbitration upon requisition being made by one of the parties. The plaintiff-opp. party filed objection to the said application. 6. The learned trial court by order dated 22.8.2009 did not allow the prayer of the petitioners to refer the parties to arbitration. Against the said order of rejection of the application under section 45 of the Act, the petitioners preferred FAO No. 3 of 2009 under section 50 of the Act before the learned Addl. District Judge, Jharsuguda. The learned lower appellate court by the impugned judgment confirmed the order passed by the learned trial court holding that when agreement between the parties is 5 in dispute and whether it can be enforceable, is to be decided in the original suit in C.S. No. 13 of 2009, the findings arrived at by the learned trail court as per order dated 22.8.2009 need not be disturbed and conclusion arrived at by the learned trial court in rejecting the application under section 45 of the Act is based on legal evidence on record and there is nothing to interfere with the said order. 7. The Arbitration and Conciliation Act, 1996 is divided into two parts. The first part deals with arbitration within the country and the second part deals with international arbitration/foreign award. Section 37 of the Act, which is contained in the first part, is also pari materia to section 50 of the Act contained in the second part, both dealing with appeals which can be preferred against the orders passed in the respective parts. This has also been held by the Supreme Court in the case of SHIN-ETSU CHEMICAL COMPANY LIMITED (2) AND OTHERS V. VINDHYA TELELINKS LIMITED AND OTHERS, (2009)14 SCC 16, where the Supreme Court held that sections 45 and 50 in Part-II of the Act “relating to enforcement of certain foreign awards” correspond to sections 8 and 37 of Part-I of the Act. Section 37 of the Act provides that appeal shall lie against granting or refusing to grant any measure under section 9, against an order setting aside or refusing to set aside an arbitral 6 award under section 34 of the Act and prescribes that such appeal can be filed before the court authorized by law to hear appeals from original decrees of the court passing the order. Section 50 of the Act also contains similar provisions with regard to orders passed under sections 45 and 48 of the Act. Both the sections prohibit filing of Second Appeals. 8. In the case of ITI Ltd. v. Siemens Public Communications Network Ltd. (2002)5 SCC 510, the Supreme Court dealing with an appeal filed before it directly against an order under section 37 of the Act merely because remedy of revision will not be efficacious than the remedy from the Supreme Court, which would be quick or more efficacious, held on facts that such an appeal before the Supreme Court is not maintainable. While dealing the issues raised and answering the question as to whether a revision petition under section 115 C.P.C. lies to the High Court as against an order made by a civil court in an appeal preferred under section 37 of the Act and when a Second Appeal is statutorily barred under the Act and when the Code is not specifically made applicable, can it be said that a right of revision before the High Court would still be available to an aggrieved party ? If so, whether on the facts and circumstances of the said case, such a remedy by way of revision 7 is an alternate and efficacious remedy or not, the Supreme Court in the aforesaid case held as follows: “It is true in the present Act application of the Code of Civil Procedure is not specifically provided for, but there is no express prohibition against the application of the Code to a proceeding arising out of the Act before a civil court. That being so, by interference it cannot be held that the Code is not applicable. (Para 10) The jurisdiction of the civil court to which a right to decide a lis between the parties has been conferred can only be taken by a statute in specific terms and such exclusion of right cannot be easily inferred because there is always a strong presumption that the civil courts have the jurisdiction to decide all questions of civil nature. Therefore, if at all there has to be an inference the same should be in favour of the jurisdiction of the court rather than the exclusion of such jurisdiction. There being no such exclusion of the Code in specific terms except to the extent stated in Section 37(2), it is not possible to draw an inference that merely because the Act has not provided CPC to be applicable, by inference it should be held that the Code is inapplicable. (Para 11) xx xx xx There is also not much force in the argument of the appellant based on Section 5 of the Act. It is under 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(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 CPC 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. (Para 13) 8 9. Considering the above position of law as laid down by the apex Court in respect of section 37 of the Act, which is pari materia to section 50 of the Act, I find that the writ petition will not be maintainable against the impugned order passed under section 50 of the Act, as a civil revision lies against the said order. The writ petition is, therefore, disposed of as not maintainable. However, the petitioners may prefer a civil revision against the impugned order, if so advised, subject to the question of limitation. The interim order passed earlier stands vacated. …………………… M.M. Das, J. Orissa High Court, Cuttack. April 13th ,2011/Biswal. 9 10 11 12