Case: Union Of India Vs. M/S. Simplex Infrastructures Ltd

same is a self-contained code relating to arbitration." 89.It is, thus, to be seen that Arbitration Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan) 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 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."10. After this decision, there is no scope to contend that the remedy of Letters Patent Appeal was available in relation to judgment of the learned Single Judge in question. This legal position has been restated in the recent decision of this Court (to which one of us was party, Justice Dipak Misra), in the case of Arun Dev Upadhyaya v. Integrated Sales Service Ltd & Anr.(2016) 9 SCC 524 11. The Division Bench of the High Court, however, made a fine distinction by holding that the judgment of the learned Single Judge of condoning delay in filing of the petition under Section 34 of the Act was without jurisdiction and not in terms of the provisions of the Act. It is not possible to countenance this approach. The Division Bench, in our opinion, was not right in observing that the decision in M/s. Tanusree Art Printers & Anr. (supra) being of a special bench of three-Judges of the same Court, was binding, in spite of having noticed the decision of this Court in Fuerst Day Lawson Limited (supra) - which is directly on the point and was pressed into service by the Appellant. Neither the Division Bench of the High Court at Calcutta which dealt with the case of Modi Korea Telecommunication Ltd. (supra) nor the three-Judges Bench which decided the case of M/s. Tanusree Art Printers & Anr.(supra), had the benefit of the judgment of this Court in Fuerst Day Lawson Limited (supra), which is later in time. 12. The Act as applicable to the present case, provides for a remedy of appeal in terms of Section 37 of the Act. The same reads thus:-"37. Appealable orders. - (1) An appeal shall lie from the following orders (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order, namely:- [(a) Refusing to refer the parties to arbitration under section 8; (b) granting or refusing to grant any measure under section 9; (c) setting aside or refusing to set aside an arbitral award under section 34.] (2) An appeal shall also lie to a Court from an order of the arbitral tribunal- (a) accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or (b) granting or refusing to grant an interim measure under section 17. (3) 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."13. On a bare reading of this provision, it is noticed that remedy of appeal has been provided only against an order of setting aside or refusing to set aside an arbitral award under Section 34(1) (c). No appeal is provided against an order passed by the Court of competent jurisdiction condoning the delay in filing the petition under Section 34 of the Act as such. The Division Bench in the impugned Judgment, therefore, rightly noted that remedy of appeal against the impugned order of the learned Single Judge was not otherwise available under Section 37 of the Act. 14. In our opinion, the issue is squarely answered against the Respondent by the decision of this Court in Fuerst Day Lawson Limited (supra). In that, the Judgment of the learned Single Judge dated 27th April, 2016, was passed on an application purported to be under Section 34(3) of the Act, for condoning delay in filing of the petition for setting aside the arbitral award. Hence, the remedy of Letters Patent Appeal against that decision is unavailable. The question as to whether the learned Single Judge had rightly exercised the discretion or otherwise, could be assailed by the Respondent before this Court by way of special leave petition. But, certainly not by way of a Letters Patent Appeal under clause 15. For, even if the learned Single Judge may have committed manifest error or wrongly decided the application for condonation of delay, that judgment is ascribable to exercise of jurisdiction under Section 34(3) of the Act. In other words, whether the prayer for condonation of delay can be accepted or whether the application deserves to be rejected, is a matter well within the jurisdiction of that court. 15. The learned counsel for the Respondent was at pains to persuade us that the decision of the learned Single Judge is palpably wrong and cannot be sustained in law. However, we cannot permit the Respondent to agitate that plea in the present appeal preferred by the Appellant challenging the impugned decision of the Division Bench. Instead, we deem it appropriate to leave all contentions available to both sides open and give liberty to the Respondent to challenge the judgment of the learned Single Judge dated 27th April, 2016 in G.A.No.958 of 2016, if so advised.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. After hearing the counsel for the parties and going through the decisions relied upon by both sides, we have no hesitation in allowing this appeal.After this decision, there is no scope to contend that the remedy of Letters Patent Appeal was available in relation to judgment of the learned Single Judge in question. This legal position has been restated in the recent decision of this Court (to which one of us was party, Justice Dipak Misra), in the case of Arun Dev Upadhyaya v. Integrated Sales Service Ltd & Anr.(2016) 9 SCCThe Division Bench of the High Court, however, made a fine distinction by holding that the judgment of the learned Single Judge of condoning delay in filing of the petition under Section 34 of the Act was without jurisdiction and not in terms of the provisions of the Act. It is not possible to countenance this approach. The Division Bench, in our opinion, was not right in observing that the decision in M/s. Tanusree Art Printers & Anr. (supra) being of a special bench of three-Judges of the same Court, was binding, in spite of having noticed the decision of this Court in Fuerst Day Lawson Limited (supra) - which is directly on the point and was pressed into service by the Appellant. Neither the Division Bench of the High Court at Calcutta which dealt with the case of Modi Korea Telecommunication Ltd. (supra) nor the three-Judges Bench which decided the case of M/s. Tanusree Art Printers & Anr.(supra), had the benefit of the judgment of this Court in Fuerst Day Lawson Limited (supra), which is later in time.On a bare reading of this provision, it is noticed that remedy of appeal has been provided only against an order of setting aside or refusing to set aside an arbitral award under Section 34(1) (c). No appeal is provided against an order passed by the Court of competent jurisdiction condoning the delay in filing the petition under Section 34 of the Act as such. The Division Bench in the impugned Judgment, therefore, rightly noted that remedy of appeal against the impugned order of the learned Single Judge was not otherwise available under Section 37 of the Act.In our opinion, the issue is squarely answered against the Respondent by the decision of this Court in Fuerst Day Lawson Limited (supra). In that, the Judgment of the learned Single Judge dated 27th April, 2016, was passed on an application purported to be under Section 34(3) of the Act, for condoning delay in filing of the petition for setting aside the arbitral award. Hence, the remedy of Letters Patent Appeal against that decision is unavailable. The question as to whether the learned Single Judge had rightly exercised the discretion or otherwise, could be assailed by the Respondent before this Court by way of special leave petition. But, certainly not by way of a Letters Patent Appeal under clause 15. For, even if the learned Single Judge may have committed manifest error or wrongly decided the application for condonation of delay, that judgment is ascribable to exercise of jurisdiction under Section 34(3) of the Act. In other words, whether the prayer for condonation of delay can be accepted or whether the application deserves to be rejected, is a matter well within the jurisdiction of that court.The learned counsel for the Respondent was at pains to persuade us that the decision of the learned Single Judge is palpably wrong and cannot be sustained in law. However, we cannot permit the Respondent to agitate that plea in the present appeal preferred by the Appellant challenging the impugned decision of the Division Bench. Instead, we deem it appropriate to leave all contentions available to both sides open and give liberty to the Respondent to challenge the judgment of the learned Single Judge dated 27th April, 2016 in G.A.No.958 of 2016, if so