[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.804 OF 2007 IN ARBITRATION PETITION NO.218 OF 2007 Pravin Keshav Patil .... Appellant Vs. Suryakant Keshav Patil .... Respondents Sarvasri P.J. Pandit a/w S.V. Phadke for the Appellant. Sri Ramesh Dhanuka a/w Ms V.M. Chaudhary i/b Ms A.R. Dhanuka for the Respondent. CORAM: CORAM: CORAM: SRI R.M.S. KHANDEPARKAR & SRI P.B. MAJMUDAR, JJ. DATED: DATED: DATED: APRIL 30, 2008 P.C: P.C: P.C: 1. Heard. This appeal arises from the order dated 18-9-2007 passed by the learned single Judge in Arbitration Petition No.218 of 2007. By the impugned order, the learned single Judge has dismissed the said petition which was filed against the order passed by the arbitral Tribunal under Section 17 of the Arbitration and Conciliation Act, 1996, hereinafter called as "the said Act". 2. When the matter came up for hearing on 21-4-2008, preliminary objection was sought to be raised on behalf of the respondent, while waiving the service for the respondent, to the effect that considering the [2] provisions of Section 37 of the said Act, the present appeal is not maintainable. 3. When the matter came up for hearing today, the learned Advocate appearing for the respondent further submitted that the law on the point is well clarified by the Full Bench of this Court in Fountain Head Developers Fountain Head Developers Fountain Head Developers & Ors. v. Maria Arcangela Sequeira (since deceased & Ors. v. Maria Arcangela Sequeira (since deceased & Ors. v. Maria Arcangela Sequeira (since deceased through LRs) & Ors., through LRs) & Ors., through LRs) & Ors., reported in 2007 (3) Bom.C.R. 393 and, therefore, the appeal should be rejected in limine. 4. The learned Advocate appearing for the appellant, on the other hand, seeking to rely on the decisions of the Apex Court in the matters of Orma Impex Private Limited Orma Impex Private Limited Orma Impex Private Limited v. Nissai Asb Private Limited, v. Nissai Asb Private Limited, v. Nissai Asb Private Limited, reported in AIR 1999 SC 2871 and Vinita M. Khanolkar v. Pragna M. Pai, Vinita M. Khanolkar v. Pragna M. Pai, Vinita M. Khanolkar v. Pragna M. Pai, reported in AIR 1997 SC 4415, submitted that irrespective of the provisions as comprised under Section 37, the challenge by way of letters patent appeal to the impugned order is not barred. 5. The fact that the petition before the learned single Judge was in terms of the provisions of Section 37 of the said Act against the order passed by the arbitral Tribunal under Section 17, is not in dispute. In fact, it is also apparent from para 2 of the impugned order. [3] 6. Section 37 of the said Act deals with the subject of appeals and the sub-section (1) thereof provides that an appeal shall lie from the orders enumerated thereunder and no other orders to the Court authorised by law to hear appeals from the original decrees of the Court passing the order. The orders which are enumerated as can be subjected to the appeal under the said provision are described under Clause (a) and (b) being granting or refusing to grant any measure under Section 9 and/or setting aside or refusing to set aside an arbitral award under Section 34. The sub-section (2) thereof provides that an appeal shall also lie to a Court from an order granting of the arbitral tribunal - (a) accepting the plea referred in sub-section (2) or sub-section (3) of section 16; or (b) granting or refusing to grant an interim measure under Section 17. The sub-section (3) specifically provides that "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.". 7. While considering the various arguments advanced before the Full Bench in relation to the issue as to whether it is the Civil Judge, Senior Division or the District Court which should be construed as being the Principal Court for original jurisdiction for the purpose of a petition under Section 34 of the said Act, [4] taking note of the decision of the Apex Court in Union Union Union of India v. Mohinder Supply Company, of India v. Mohinder Supply Company, of India v. Mohinder Supply Company, reported in AIR 1962 SC 256, it was ruled that "The Supreme Court in this judgment has held that the expression "second appeal" used in section 39(2) of the Act of 1940 means a further appeal from an order passed in appeal under section 39(1) and not an appeal under section 100 of the Code of Civil Procedure. The Supreme Court has further proceeded to observe that if the expression ‘second appeal’ includes an appeal under the Letters Patent, it would be impossible to hold that notwithstanding the express prohibition, an appeal under the Letters Patent from an order passed in appeal under sub-section (1), of section 39 of the Act of 1940, is competent. It is thus clear that no Letters Patent appeal would lie from an order in an appeal filed under section 37 of the Act of 1996. The second appeal contemplated under sub-section (3) of section 37 of the Act of 1996 means an appeal under the Letters Patent and since there is [5] expressed prohibition to file such appeal no letters patent would lie." 8. The provisions of law as comprised under Section 37 of the said Act regarding the maintainability and non-maintainability of the appeal being sufficiently clarified by the Full Bench, and which is in consonance with the view taken by the Apex Court in various decisions, more particularly taking into consideration the effect of interpretation of Section 100-A of the Code of Civil Procedure, we are of the considered opinion that the law is well-settled on the point that when an appeal is preferred against an order granting or refusing to grant interim measure under Section 17 by the Arbitral Tribunal, taking recourse to Section 37 of the said Act, no further appeal of any type would be maintainable and, therefore, the preliminary objection sought to be raised on behalf of the respondents is to be sustained and the appeal is liable to be rejected in limine as not maintainable. Hence the appeal is dismissed. (P.B.Majmudar, J.) (R.M.S.Khandeparkar, J.) sjs/A8a804.7 sjs/A8a804.7 sjs/A8a804.7