Case: M/S. I.T.I. Ltd Vs. M/S. Siemens Public Communi.Network Ltd

is now settled by the judgment of a three-Judge Bench of this Court in the case of Bhatia International v. Bulk Trading S.A. and another in C.A.No. 6527/2001 decided on 13-3-2002 wherein while dealing with a similar argument arising out of the present Act, this Court held : While examining a particular provision of a statute to find out whether the jurisdiction of a Court is ousted or not, the principle of universal application is that ordinarily the jurisdiction may not be ousted unless the very statutory provision explicitly indicates or even by inferential conclusion the Court arrives at the same when such a conclusion is the only conclusion. (12) In the said view of the matter, we are in respectful agreement with the view expressed by this Court in the case of Nirma Ltd. (supra) and reject the argument of Mr. Parasaran on this question. (13) We also do not find much force in the argument of learned counsel for the appellant based on S. 5 of the Act. It is to be noted that it is under this part, namely, Part I of the Act that S. 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 S. 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 S. 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 S. 37 provided for an appeal to the Civil Court and the application of Code not having been expressly barred, the revisional jurisdiction of the High Court gets attracted. If that be so, the bar under S. 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. (14) Mr. Parasaran then contended that since it is an accepted fact that this Court also has the jurisdiction to entertain an appeal, this appeal should not be rejected on the sole ground that there is a remedy available by way of a revision before the High Court. In support of this contention, he relied on the judgment of this Court in the case of Ram Shankar (supra) wherein it is noticed that this Court had entertained an appeal directly against a judgment and decree of a trial Court by passing the High Court. It is true that the power of this Court to entertain an appeal directly is not taken away merely because another remedy is available but then the question is, should this Court encourage litigants to indulge in hop, skip and jump to reach this Court either for the reason that the remedy from this Court would be quick or more efficacious? The answer, in our opinion, should be no. The judgment of this Court in M/s. Central Coal Fields (supra) does not, in any way, take a contra view from what is expressed by us hereinabove. In that case because of the peculiar fact situation, this Court entertained an appeal without the party first appreciating the High Court but then it should be noticed that this Court did not entertain the appeal to decide the same itself, it did so to refer the matter to arbitration proceedings and when an award made by the learned arbitrator was acceptable to all parties then the same was made a rule of this Court. Such is not the situation in the present case. Therefore, we do not think the appellant can take much support from the above case of this Court. (15) Learned counsel for the appellant next contended that assuming that the remedy of revision is available even then the same is not an efficacious alternate remedy because this appeal involves a very sensitive issue pertaining to the security of the country and which, according to the appellant, requires extreme urgency in deciding the same and the said requirement will not be possible if the appellant has to approach the High Court. We are not impressed with this argument addressed on behalf of the appellant because we notice from the record that the arbitration proceedings have started as far back as in the year 2001 and the parties instead of getting the arbitration concluded, have been litigating on interim applications till date. If indeed urgency was there then the party which feels the necessity of quick disposal would have concentrated more on completing the arbitral proceedings rather than spending its time in Court inviting orders of the High Court on interlocutory applications. Therefore, we are of the opinion that there is no such urgency which requires us to treat this case differently. In regard to the sensitivity of the matter and the national security involved, we do not think that these factors will, in any manner, be compromised by approaching the High Court; more so in the background of the fact that the parties had already approached the High Court nearly three times without raising any objection as to its jurisdiction or in view of its apprehension as to the security of the State. If the facts involving such sensitive matter could be handled by the High Court three times earlier, we think the appellant can very well trust the High Court to protect such interest of the country in future proceedings also. Therefore, this argument of sensitivity or urgency in our opinion, will not improve the appellants case so as to make an exception or permit the appellant to take a short cut to this Court. Therefore, the above argument of the appellant should also be rejected. (16) For the aforesaid reasons,

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

Explanation:
0[ds]It is true in the present Act application of the Code is not specifically provided for but what is to be noted is : Is there an express prohibition against the application of the Code to a proceeding arising out of the Act before a Civil Court? We find no such specific exclusion of the Code in the present Act. When there is no express exclusion, we cannot by inference hold that the Code is not applicable(12) In the said view of the matter, we are in respectful agreement with the view expressed by this Court in the case of Nirma Ltd. (supra) and reject the argument of Mr. Parasaran on this question. It is to be noted that it is under this part, namely, Part I of the Act that S. 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 S. 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 S. 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 S. 37 provided for an appeal to the Civil Court and the application of Code not having been expressly barred, the revisional jurisdiction of the High Court gets attracted. If that be so, the bar under S. 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 alsowe are of the opinion that there is no such urgency which requires us to treat this case differently. In regard to the sensitivity of the matter and the national security involved, we do not think that these factors will, in any manner, be compromised by approaching the High Court; more so in the background of the fact that the parties had already approached the High Court nearly three times without raising any objection as to its jurisdiction or in view of its apprehension as to the security of the State. If the facts involving such sensitive matter could be handled by the High Court three times earlier, we think the appellant can very well trust the High Court to protect such interest of the country in future proceedings also. Therefore, this argument of sensitivity or urgency in our opinion, will not improve the appellants case so as to make an exception or permit the appellant to take a short cut to this Court. Therefore, the above argument of the appellant should also be rejected