Case: Arun Dev Upadhyaya Vs. Integrated Sales Service Ltd &amp; Another

2. The facts which are relevant to be stated for adjudication of the appeals are that an award was passed in favour of the 1st respondent in ICDR Case No.by the International Arbitration Tribunal (for short, "the tribunal") making the appellant the DMC Management Consultants Limited and another jointly and severally liable to pay USD 6,948,100 within ten days from the date of passing of the award.3. It is the case of the respondent that the international arbitration award had attained finality as the appellant herein had not challenged it under Delaware Law which is the applicable law. On 29.04.2010, the 1st respondent filed an application under Sections 47 and 49 of the Arbitration and Conciliation Act, 1996 (for brevity, "the 1996 Act") for enforcement of the Award before the District Judge, Nagpur and the proceeding continued before the concerned District Judge till the Arbitration and Conciliation (Amendment) Act, 2015 (for short, "2015 Act") came into force with effect from 23rd October 2015, by which the High Court was conferred with the original jurisdiction in case of International Commercial Arbitration. After the 2015 Act came into force, the 1st respondent filed Misc. Civil Application No. 1319 of 2015 before the High Court for enforcement of the award. The Learned Single Judge by his final order dated 18.04.2016 came to hold that the award dated 28.03.2010 was enforceable against the DMC Management Consultants Limited and passed a decree against it in terms of the award. However, the learned single judge opined that the award was not enforceable in India against the other respondent as the arbitral tribunal could not have passed the award against them. The opinion expressed by the learned Single Judge reads asThe award dated 28.3.2010 passed by the International Arbitration Tribunal in ICDR Case No. 50181T0032709 becomes unenforceable in India to the extent it operates against theun Dev s/o Govindvishnu Upadhyaya and No. 3 Gemini Bay Transcription Pvt. Ltd., and the claim for passing a decree against them in terms of the said award is refused.(2) The award passed by the International Arbitration Tribunal in ICDR Case No. 50181T0032709 to the extent it operates against theMC Management Consultants Ltd. is made enforceable in India and the decree is passed in terms of the said award against the4. Being dissatisfied with the decision of the learned single judge, the 1st respondent preferred an appeal under Section 50(1)(b) of the 1996 Act read with Clause 15 of the Letters Patent of the High Court of Bombay which was registered as Arbitration Appeal No. 3 of 2016.5. The appellant herein who was the respondent before the High Court filed application C.A.M No. 34 of 2016 contending, inter alia, that the appeal was not maintainable in view of the abolition of the Letters Patent Appeal by Section 3(1) of the Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986 (for short, "the 1986 Act"). The Division Bench repelled the said submission by placing reliance on an earlier Division Bench judgment rendered in Padamshri Purushottam Vyas & Ors. v. Tusar Dhansukhlal Shah, 2016 SCC ONLINE BOM 255 and opined that the appeal is maintainable.6. After the preliminary objection was rejected the appellant filed an Misc. Civil Application (Review) No. 688 of 2016 by bringing into the notice of the Court the decision in Fuerst Day Lawson Limited v. Jindal Exports Limited, (2011) 8 SCC 333     and relied, especially on paragraphs 74, 75, 76 and 89 and propounded the point that the Letters Patent Appeal under Clause 10 was not available in arbitration matters and Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015 (for short "the Act") would not be applicable to an arbitration appeal. The High Court noticed the language used in Section 50(1)(b) of the 1996 Act and the constitution of the forum under Section 15 of the Letters Patent and opined that the submissions canvassed in support of the application for review were absolutely unsustainable. Being of this view, the Division Bench dismissed the application for review. As stated earlier, both the orders have been challenged in these two appeals by special leave.

Reasoning: 22. On a perusal of the aforesaid provision, it is crystal clear that an appeal would lie if it is in accordance with the provisions of the Act. The said provision has to be read in conjunction with Section 5 of the Act. Section 5 of the Act reads as(1) After issuing notification under(1) of section 3 or order under(1) of section 4, the Chief Justice of the concerned High Court shall, by order, constitute Commercial Appellate Division having one or more Division Benches for the purpose of exercising the jurisdiction and powers conferred on it by the Act.(2) The Chief Justice of the High Court shall nominate such Judges of the High Court who have experience in dealing with commercial disputes to be Judges of the Commercial Appellate Division.The aforesaid provision clearly lays down that a forum is created, i.e., Commercial Appellate Division. Section 50(1)(b) of the 1996 Act provides for an appeal. Section 50(1)(b) has not been amended by the Act that has come into force on 23.10.2015. Thus, an appeal under Section 50(1)(b) of the 1996 Act before the Division Bench is maintainable.24. Thus analysed, we find that the impugned judgment of the learned Single Judge under Section 50(1)(b) of the 1996 Act is passed in the original side of the High Court. Be that as it may, under Section 13 of the Act, the single Judge has taken the decision. Section 13 bars an appeal under Letters Patent unless an appeal is provided under the 1996 Act. Such an appeal is provided under Section 5 of the Act. The Letters Patent Appeal could not have been invoked if Section 50 of the 1996 Act would not have provided for an appeal. But it does provide for an appeal. A conspectus reading of Sections 5 and 13 of the Act and Section 50 of the 1996 Act which has remained unamended leads to the irresistible conclusion that a Letters Patent Appeal is maintainable before the Division Bench. It has to be treated as an appeal under Section 50(1) (b) of the 1996 Act and has to be adjudicated within the said parameters.