ARUN DEV UPADHYAYA versus INTEGRATED SALES SERVICE LTD & ANR.
[2016] 7 S.C.R. 976, Supreme Court of India, 2016
Outcome: Dismissed (Dismissed)
Segment: Ratio
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(2016] 7 S.C.R. 976 
ARUN DEV UPADHYAYA 
v. 
INTEGRATED SALES SERVICE LTD & ANR. 
Civil Appeal Nos. 8475-76 of2016 
SEPTEMBER 30, 2016 
[DIPAK MISRA AND C. NAGAPPAN, JJ.J 
Commercial Courts, Commercial Division and Commercial 
Appellate Division of the High Courts Act, 2015: s.13(1) -
international arbi1ration - Letters Patent Appeal to the Division 
Bench of High Court agaimt the judgment of the Si11gle Judge for 
enforcement of jiJre ign award - Maintainability of - Held: s.13 of 
the Commercial Courts Act bars an appeal under Letters Patent 
unless an appeal is provided under the 1996 Act - s.13 has to be 
read in conjunction with s.5 of the Act - s.5 clearly lays down that 
a forum is created i.e. Commercial Appellate Division -Letters Patent 
Appeal cannot be invoked if s.50 of the 1996 Act does not provide 
for an appeal - But it does provide for an appeal - s.50 of 1996 
Act provides that appeal can lie if an order is passed refusing to 
refer the parties lo arbitration as engrafted under s.45 of 1996 Act 
or to enforce a foreign award as envisaged under s.48 of the said 
Act -A conspectus reading of ss.5 and 13 of the Commercial Courts 
Act and s.50 of lhe 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 s.50(l)(b) of the 1996 Act and has to be adjudicated 
l1;ithin the said parameters - Arbitration and
Conciliation Act, 1996 
- s.50 - Appeal - Letters Patent - Maharashtra High Court 
(Hearing of Writ Petitions by Division Bench and Abolition of Letters 
Patent Appeal.i) Act, 1896 - s.3(1). 
Dismissing the appeals, the Court 
HELD: Section 50 of 1996 Act shows that appeal can lie if 
an order is passed refusing to refer the parties to arbitration as 
engrafted under Section 45 of the 1996 Act or to enforce a foreign 
award as envisaged under Section 48 of the said Act. In the case 
at hand, the proceeding was initiated before the District Judge. 
During the pendency of the proceeding, the E~planation of sub-
976
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE 
LTD & ANR. 
section (2) of Section 47 of the 1996 Act was amended. In spite of 
the amendment, the District Judge passed an order. However, 
the respondent moved the High Court and it was accepted by 
both the parties before the Single Judge that the District Judge 
had no jurisdiction (in view of amendment) and thereafter the 
Single Judge took up the matter and passed the order. The 
Division Bench in the impugned order has referred to Section 
13(1) of the Act. A perusal of section 13(1) shows 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 clearly lays down that a forum is created, i.e., 
Commercial Appellate Division. Section 50(l)(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. Thus analysed, the impugned judgment 
of the Single Judge under Section 50(l)(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 a1>peal 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 docs 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(l)(b) of the 1996 Act and has to be adjudicated 
within the said parameters. [Paras 13, 20, 21, 22, 24) (984-F-G; 
990-A, C-D, G; 991-B-E] 
Padamshri Purushottam Vyas & Ors. v. Tusar 
Dhansukhlal Shah 2016 SCC ONLINE BOM 255; 
Fuerst Day Lawson Limited v. Jindal Exports Limited 
(2011) 8 SCC 333 : 2011 (11) SCR 1; Jamshed N. 
Guzdar v. State of Maharashtra and Ors. (2005) 2 SCC 
591:2005 (1) SCR 223; Jet Air (India) Ltd. v. Subrata 
Roy Sahara 2011 SCC Online Bom 1379; Shin-Etsu 
Chemical Company Ltd. (2) and Ors. v. Vindhya 
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Tele/inks Ltd and Ors. (2009) 14 SCC 16; Nirma Ltd. 
v. Lurgi Lentjes Energietechnik Gmbh and Am: (2002) 
5 SCC 520: 2002 (3) SCR 911; IT! Ltd. v. Siemens 
Public Co111111unications Network Ltd. (2002) 5 SCC 
510:2002 (3) SCR 1122; Shyam Sunder Agar1l'al & Co. 
V. Union of India (1996) 2 sec 132:1996 (I) SCR 
245; Punjab Agro Industries Corporation Limited v. 
Kewal Singh Dhillon (2008) IO SCC 128: 2008 (12) 
SCR 569; P.S. Sathappan (dead) by Lrs. v. A11dhra Bank 
Ltd. and Ors. (2004) 11 SCC 672: 2004 (5) Suppl. SCR 
188; Union of India v. Mahindra Supply Co. AIR 1962 
SC 256:(1962) 3 SCR 497 - referred to. 
Case Law Reference 
2011 (11) SCR 1 
referred to 
Para6 
2005 (1) SCR 223 
referred to 
Para 10 
(200~) 14 sec 16 
referred to 
Para 13 
2002 (3) SCR 911 
referred to 
Para 14 
2902 (3) SCR 1122 
referred to 
Para 14 
1996 (l) SCR 245 
referred to 
Para 14 
2098 (12) SCR 569 
referred to 
Para 14 
2004 (5) Suppl. SCR 188 
referred to 
Para 15 
(1962) 3 SCR 497 
referred to 
Para 17 
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8475-
8476 of2016. 
From the Judgment and Order dated 23.06.2016 of the High Court 
of Judicature at Bombay Nagpur Bench, Nagpur, in C. A. M. No. 34 of 
2016 in Arbitration Appeal No. 3of2016. 
Anish Kapur, Ms. Divya Bhalla, Ms. B. Vijayalakshmi Menon, 
Advs. for the Appellant. 
Balbir Singh, Sr. Adv., Gagan Sanghi, D. V. Chauhan, M. Bharth, 
H 
Rameshwar Prasad Goyal, Advs. for
the Respondents.
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE 
LTD & ANR. 
The Judgment of the Cout1 was delivered by 
DIP AK MISRA, J. I. Aggrieved by the order dated 23.06.2016 
passed by the Division Bench of the High Court of Judicature at Bombay, 
Nagpur Bench, Nagpur in C.A.M. No. 34of2016 in Arbitration Appeal 
No.3of2016 rejecting the preliminary objection raised by the appellant 
and further being dissatisfied with the order dated 15.07.2016 expressing 
disinclination to ente11ain the Civil Miscellaneous Application (Review), 
the present appeals, by special leave, have been preferred for annulling 
the same. 
2. The facts which are relevant to be stated for adjudication of 
the appeals are that an award was passed in favour of the I" respondent 
in ICDR Case No. 50-18 l-T-00327-09 by the International Arbitration 
Tribunal (for sho11, "the tribunal") making the appellant the DMC 
Management Consultants Limited and another jointly and severally liable 
to pay USD 6,948, I 00 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 
I" respondent filed an application under Sections 4 7 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 sho11, "2015 
Act") came into force with effect from 23'd 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 1" respondent filed Misc. Civil Application No. 1319 of2015 
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 as follows:-
"( I) The award dated 28.3.2010 passed by the International 
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Arbitration Tribunal in ICDR Case No. 50181 T0032709 becomes 
unenforceable in India to the extent it operates against the non-
applicant No. 2-Arun 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. 50181 T0032709 to the extent it operates against 
the non-applicant No. 1-DMC Management Consultants Ltd. is 
made enforceable in India and the decree is passed in terms of 
the said award against the non-applicant No. I." 
4. Being dissatisfied with the decision of the learned single judge, 
the I" respondent preferred an appeal under Section 50(1 )(b) of the 
I 996 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 
Cou11 filed application C.A.M No. 34 of 2016 contending, inter alia, 
thatthe appeal was not maintainable in view of the abolition of the Letters 
Patent Appeal by Section 3( I) 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 Purus/10ttum Jjias & Ors. v. 
Tusar Dlumsukhlal Shah' and opined that the appeal is maintainable. 
6. After the preliminary objection was rejected the appellant filed 
an Misc. Civil Application (Review) No. 688of2016 by bringing into the 
notice of the Court the decision in Fuerst D<{V Lawson Limited v. Jindal 
Exports Limitetf and relied, especially on paragraphs 74, 75, 76 and 
89 and propounded the point that the Letters Patent Appeal under Clause 
10 was not avai I able 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( I )(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 
I 2016 sec ONLINE BOM 255 
'(2011) s sec 333
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE 
LTD & ANR. [DIPAK MISRA, J.] 
the application for review. As stated earlier, both the orders have been 
challenged in these two appeals by special leave. 
7. We have heard Mr. Anish Kapur, learned senior counsel for 
the appellant and Mr. Balbir Singh, learned senior counsel for the 
respondent. 
8. first we shall refer to the decision in Tusar D!tansukhlal Sliali 
(supra) as the Division Bench in the impugned order has placed reliance 
on the same. In the said case, the question that was posed reads as 
follows:-
"The only question which falls for consideration is: whether intra-
court Letters Patent Appeals on the original side of this Court are 
maintainable of this Court are maintainable in respect of suits or 
other proceedings which are filed on the original side of this Court." 
9. To answer the said question, the Court referred to Sections 2 
and 3 of the 1986 Act. The said provisions read as follows:-
"2. Notwithstanding anything contained in any Jaw for the time 
being in force or in any instrument having the force oflaw, every 
application for the issue of any direction, order or writ under Article 
226 of the Constitution oflndia and every application invoking the 
jurisdiction of the High Court under Article 227 or Article 228 of 
the Constitution of India, pending before the High Court of 
Judicature at Bombay, on the date of commencement of this Act, 
or filed on or after the said date, whether the matter in
dispute is 
or has arisen in Greater Bombay or outside Greater Bombay, shall 
be heard and disposed of by a Division Bench to be appointed by 
the Chief Justice oftl~e High Cou1t: 
Provided that, the High Court may, by rules made after previous 
publication and with the previous approval of the State Government, 
prescribe that such of the applications referred to above, arising 
in Greater Bombay or outside Greater Bombay, as may be 
specified in the rules, may be heard and disposed of by a single 
Judge appointed by the Chief Justice. 
3. (I) Notwithstanding anything contained in the Letters Patent 
for the High Court of Judicature at Bombay, dated the 28'h 
December, 1985 and in any other instrument having the force of 
Jaw or in any other law for the time being in force, no appeal, 
arising from a suit or other proceeding (including the applications 
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referred to in section 2) instituted or commenced, whether before 
or after the commencement of this Act, shall lie to the High Court 
from a judgment, decree or order of a single Judge of the High 
Court made on or after the commencement of th is Act, whether 
in the exercise of the original or appellate jurisdiction of the High 
Court." 
I 0. Thereafter, the High Court referred to the Constitution Bench 
judgment in J[[mslled N. Guzd([r v. S/([fe of M([fillmslltra mu/ others', 
noted that before this Court, the counsel appearing for the State of 
Maharashtra had found that there was anomaly in Section 3 of the 1986 
Act and accordingly made a concession which has been noted in 
paragraph 18 of the judgment. It reads as follows:-
"M r U.U. Lalit, learned Senior Counsel for the State of 
Maharashtra, while supporting the impugned judgment submitted 
that there is an anomaly created by, or deficiency found in Section 
3 of the 1986 Act inasmuch as Section 3 of the said Act read with 
Section 9 of the 1987 Act fails to make any provision for appeal 
against a decree or order passed after the commencement of the 
Act in any suit or other proceedings pending in the High Court 
since before the commencement of the Act. He sought ten days' 
time to have instructions from the State of Maharashtra in this 
regard. Thereafter, on the basis of Letter No. 3 7-PF 2131097 
dated 17-12-2004 of the Principal Secretary and
RLA, State of 
Maharashtra, IA No. I 0 is filed seeking pe1111ission to place on 
record the said letter indicating the willingness of the State of 
Maharashtra to take necessary steps to make legislative 
amendment to Section 3 of Maharashtra Act 17 of 1986, relevant 
portions of which read: 
"With reference to the above subject, I have to state that you are 
hereby given instructions to make a statement before the Hon'ble 
Supreme Comt that the State of Maharashtra will take necessary 
steps to make legislative amendment to Section 3( I) of Maharashtra 
Act 17 of 1986 [the Maharashtra High Cou1t (Hearing of Writ 
Petitions by Division Bench and Abo I ition of Letters Patent 
Appeals) Act, 1986] to make a provision for appeal against the 
judgment, order and decree passed on the appointed date by the 
High Court and thereafter as may be indicated in the judgment of 
the Supreme Court."" 
' (2oos12 sec s91
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE 
LTD & ANR. [DIPAK MISRA, J.] 
11. After the said judgment, the State of Maharashtra brought an 
amendment, i.e., Maharashtra High Court (Hearing of Writ Petitions by 
Division Bench and Abolition of Letters Patent Appeals) Amendment 
Act, 2008 (Maharashtra Ace No. XXVII of 2008). The High Court 
referred to statement of objects and reasons of the said Amendment 
Act and reproduced Section 3 which has come into existence after the 
amendment. Interpreting Section 3, the Division Bench ruled that:-
" ... The words "an appeal under any statute" clearly referred to 
any appeal provided under any provision under the statute and 
where such an appeal is heard by single Judge of the High Court 
then against such orders passed in appeal by a single Judge of the 
High Court. Appeals, therefore, provided under Arbitration Act 
and other Acts which provide that these appeals are to be heard 
by the single Judge of the High Court then against the order passed 
in such appeals, Letters Patent Appeal is not maintainable. Here, 
again, a distinction will have to be drawn between the appeals 
which are filed from the orders passed by the District Courts, 
other than the orders passed by the single Judge on the original 
side of the Bombay High Court. Such appeals which are filed 
against the orders passed by the District Courts, would be heard 
by the Single Judge of this Court and against such orders passed 
by the single Judge of the High
Court, Letters Patent Appeal would 
not be maintainable. However, where Petition is filed before the 
single Judge of this Court under any provision under the statute, 
the appeal against such an order would still be maintainable before 
the Division Bench of this Court. This distinction therefore has to 
be kept in mind while construing the meaning of the words "appeal 
arising from a statute''. To give an example, a Petition under 
section 34 of the Arbitration and Conciliation Act, 1996 where 
Arbitral Tribunal passes an award - say in the City of Pune -
such a petition under Article 34 of the Act would be maintainable 
before the District Court. An appeal under section 3 7 would be 
maintainable in the High Court before the Single Judge on the 
Appellate Side. No Letters Patent Appeal against the order passed 
by the single Judge under section 3 7 can be filed before the Division 
Bench of this Comt, whereas if the Arbitral Tribunal passes an 
award in City of Mumbai, a Petition under section 34 could be 
filed on the original side of this Court and, it would be heard by the 
single Judge sitting on the original side of this Court. Appeal, 
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however, against such an order would be maintainable before the 
Division Bench of this Court and it would not be barred by the 
words "appeal arising from a statute" ... " 
Be it noted that the Division Bench has referred to earlier judgment 
in Jet Air (India) Ltd. v. Subrata Roy Salwra~ and concluded that an 
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appeal arising out of any suit or proceeding which are filed on the original 
side would be maintainable in view of the Amendment Act of2008. The 
impugned order, as we find, placing heavy reliance on the aforesaid 
decision has opined that the Letters Patent Appeal is maintainable. 
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12. The pivotal question is whether an appeal against the judgment 
of the Single Judge in an international arbitration matter is appealable to 
the Division Bench or to put it otherwise, whether the intra-court appeal 
would lie because of the Letters Patent. In this context, it is necessary 
to refer to Section 50 of the 1996 Act, which provides for appeals. It is 
extracted hereunder:-
"50. Appealable orders.-
(1) An appeal shall lie from the order refusing to-
(a) refer the parties to arbitration under section 45; 
(b) enforce a foreign award under section 48, to the cou11 
authorised by law to hear appeals from such order. 
(2) 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
careful readil1g of the aforesaid provision, it is limpid that 
appeal can lie if an order is passed refusing to refer the parties to 
arbitration as engrafted under Section 45 of the 1996 Act or to enforce 
a foreign award as envisaged under Section 48 of the said Act. Scheme 
of Section 50 came up for interpretation before this Court in Sllin-Etsu 
Cllemica/ Company Ltd. (2) and otllers v. Vindltya Tele/inks Ltd. 
and ot/1ers5 wherein it has been ruled thus:-
"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. Sub-section ( 1) of Section 50 provides for an 
appeal from an order refusing to refer the parties to arbitration 
'2011 SCC Online Born 1379 
' (2009J 14 sec 16
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE 
LTD & ANR. [DIPAK MISRA, J.] 
under Section 45, to the court authorised by law to hear appeal by 
such order. Therefore, the appellant challenge<! the orders of the 
Civil Judge (Class I), Rewa before the Additional District Judge, 
Rewa which is said to be the court authorised to hear appeals 
from the orders of the Civil Judge (Class I). Sub-section (2) of 
Sectio11 50 bars second appeals. It provides that no appeal shall 
lie from an order passed in appeal under Section 50. It, however, 
clarifies that nothing in Section 50 shall affect or take away any 
right to appeal to the Supreme Court". 
14. In the said case a contention was advanced relying on sub-
section (2) of Section 50 that though an appeal may not lie from an 
order passed in appeal, the right of appeal to the Supreme Court having 
been specifically stated, the appellant therein could maintain an appeal 
before this Court. It was contended that the appellant had a right of 
appeal to this Court. The two-Judge Bench placing reliance on Nirmtt 
Ltd. v. Lurgi Lentjes Energieteclmik Gmb/1 mid mwtliel", ITI Lttl. 
v. Siemens Public Communictttions Network Lttf.1, Sflyttm Sunder 
Agarwal & Co. v. Union of India 8 and Punjab Agro Industries 
Corporation Limited v. Kewal Singh Dliillon9, held:-
"20. The right to appeal to the Supreme Court referred and 
excluded from the bar contained in Section 50(2) of the Act, refers 
to appeals under Article 132 or 133( I) against
any judgment, decree 
or final order of the High Court, ifthe High Court certified under 
Article 134-A that tpe case involves a substantial question oflaw 
as to interpretation of the Constitution or that the case involves a 
substantial question of law of general importance and that in the 
opinion of the High Court the said question needs to be decided 
by the Supreme Court. The words "right to appeal" refer to a 
right conferred either under the Constitution or under a statute to 
file an appeal to a higher court against the judgment, decree or 
order of a lower court, without having to first obtain any permission 
or leave. 
21. In the absence ofa constitutional or statutory provision for an 
appeal as of right, the appellant cannot contend that it has a "right to 
'(2002J s sec s20 
1 (2002) s sec s10 
• (1996) 2 sec 132 
• (2008) 1 o sec 128 
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appeal" to the Supreme Cou1t. An appeal by special leave to the Supreme 
Court cannot therefore be considered as an appeal as of right or as an 
appeal in pursuance of a right to appeal to the Supreme Court". 
15. Presently, we may refer to the decision in P.S. S"tltapp"n 
(de"d) by Lrs. v. Am/lira Bank Ltd. ""d others' 0, wherein the 
Constitution Bench was considering the maintainability of the Letters 
Patent Appeal that arose from the High Court of Madras. The Court 
referred to various provisions of the Code of Civil Procedure, 1908 and 
certain clauses of the Letters Patent applicable to the Madras High 
Court and also referred to Clause 15 of the letters patent of the Bombay 
High Court and held that:-
"21. We are of the opinion that in reaching this conclusion the 
Court missed the relevant portion of clause 15 of the Letters Patent 
of the Bombay High Court. Reliance cannot, therefore, be placed 
on this judgment for the proposition that under clause 15 of the 
Letters Patent of the Bombay High Com1 no appeal to a Division 
Bench from the order of the Single Judge in exercise of appellate 
jurisdiction is maintainable. 
22. Thus the unanimous view ofall courts till 1996 was that Section 
l 04( l) CPC specifically saved letters patent appeals and the bar 
under Section I 04(2) did not apply to letters patent appeals. The 
view has been that a letters patent appeal cannot be ousted by 
imp I ication but
the right of an appeal under the Letters Patent can 
be taken away by an express provision in an appropriate legislation. 
The express provision need not refer to or use the words "letters 
patent" but ifon a reading of the provision it is clear that all further 
appeals arc barred then even a letters patent appeal would be 
barred". 
And again:-
"A Letters Patent is a special law for the High Cou11 concerned. 
The Civil Procedure Code is a general law applicable to all courts. 
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It is well-settled law, that in the event of a conflict between a 
special law and a general law, the special law must always prevail. 
We sec no conflict between the Letters Patent and Section I 04 
but if there was any conflict between a Letters Patent and the 
Civil Procedure Code then the provisions of the Letters Patent 
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'" (2004 J 11 sec 672
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE 
LTD & ANR. [DIPAK MISRA, J.] 
would always prevail unless there was a specific exclusion. This 
is also clear from Section 4 of the Civil Procedure Code which 
provides that nothing in the Code shall limit or affect any special 
law. As set out in Section 4 CPC only a specific provision to the 
contrary can exclude the special law. The specific provision would 
be a provision like Section I 00-A". 
16. In Fuerst Day Lawson Limited (supra), the two-Judge Bench 
was dealing with the question whether an order, though not appealable 
under Section 50 of the 1996 Act would nevertheless be subject to appeal 
under the relevant provision of the Letters Patent of the High Court. In 
other words, even though the 1996 Act does not envisage or permit an 
appeal from the order, the party aggrieved by it can still have his way 
bypassing the said Act and taking recourse to another jurisdiction. To 
answer the said question the Court referred to various decisions in the 
field and culled out the broad principles which are reproduced below:-
"(i) Normally, once an appeal reaches the High Cou1t it has to be 
determined according to the rules of practice and procedure of 
the High Court and in accordance with the provisions of the charter 
under which the High Court is constituted and which confers on it 
power in respect to the method and manner of exercising that 
power. 
(ii) When a staiute merely directs that an appeal shall lie to a 
court
already established then that appeal must be regulated by 
the practice and procedure of that court. 
(iii) The High Court derives its intra-court appeal jurisdiction under 
the Charter by which it was established and its powers under the 
Letters Patent were recognised and saved by Section I 08 of the 
Government of India Act, 1915, Section 223 of the Governnrent 
oflndia Act, 1935 and finally, by Article 225 of the Constitution of 
India. The High Court, therefore, cannot be divested of its Letters 
Patent jurisdiction unless provided for expressly or by necessary 
intendment by some special statute. 
· 
(iv) If the pronouncement of the Single Judge qualifies as a 
"judgment", in the absence of any bar created by a statute either · 
expressly or by necessary implication, it would be subject to appeal 
under the relevant clause of the Letters Patent of the High Court. 
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( v) Since Section I 04( I) CPC specifically saves the letters patent 
appeal; it could only be excluded by an express mention in Section 
I 04(2). In the absence of any express mention in Section I 04(2), 
. the maintainability of a letters patent appeal i.s saved by virtue of 
Section 104(1). 
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(vi) Limitation of a right of appeal in absence of any provision in 
a statute cannot be readily inferred. The appellate jurisdiction of a 
superior court cannot be taken as excluded simply because a 
subordinate court exercises its special jurisdiction. 
(vii) The exception to the aforementioned rule is where the special 
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Act sets out a self-contained code and in that event the applicability 
of the general law procedure would be impliedly excluded. The 
express provision need not refer to or use the words "letters 
patent" but if on a reading of the provision it is clear that all further 
appeals are barred then even a letters patent appeal would be 
barred". 
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17. The Court thereafter referred to Section 50 of the 1996 Act 
and analysed the earlier decisions in the field including the judgment in 
Union of l11dia v. Mollindra Supply Co. 11 wherein it has been held 
that the Letters Patent Appeal against an order passed by a Single Judge 
of the High Court in appeal under Section 39(1) of the Arbitration Act, 
1940 was not maintainable in terms of sub-section (2) of Section 39 of 
the said Act. Though appeal was
held not maintainable in view of the 
express language employed in sub-section (2) of Section 39 of the 
Arbitration Act, 1940, the two-Judge Bench took note of the observation 
which is to the following effect:-
" ... The proceedings relating to arbitration are, since the enactment 
of Arbitration Act 10of1940, governed by the provisions of that 
Act. The Act is a consolidating and amending statute. It repealed 
the Arbitration Act of 1899, Schedule 2 of the Code of Civil 
Procedure and also clauses (a) to (f) of Section I 04(1) of the 
Code of Civil Procedure which provided for appeals from orders 
in arbitration proceedings. The Act set up machinery for all 
contractual arbitrations and its provisions, subject to certain 
exceptions, apply also to every arbitration under any other 
enactment for the time being in force, as if the arbitration were 
11 AIR 1962 SC 256: (1962) 3 SCR 497
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE 
LTD & ANR. [DlPAK MISRA, J.] 
pursuant to an arbitration agreement and as if that other enactment 
were an arbitration agreement, except insofar as the Arbitration 
Act is inconsistent with that other enactment or with any rules 
made thereunder." 
18. Relying on the said authority and also appreciating the decision 
of the Constitution Bench in P.S. Satlwppan (supra) the Court ruled 
thus:-
"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, ifthe 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 to 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. 
19. The ultimate conclusion reached by the Court is to the following 
effect:-
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"90. We, thus, arrive at the conclusion regarding the exclusion of 
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a letters patent appeal in two different ways; one, so to say, on a 
micro basis by examining the scheme devised by Sections 49 and 
50 of the 1996 Act and the radical change that it brings about in 
the earlier provision of appeal under Section 6 of the 1961 Act 
and the other on a macro basis by taking into account the nature 
0 
and character of the 1996 Act as a self-contained and exhaustive 
code in itself. 
91. In light of the discussions made above, it must be held that no 
letters patent appeal will lie against an order which is not appealable 
under Section 50 of the Arbitration and Conciliation Act, 1996. 
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SUPREME COURT REPORTS 
[2016) 7 S.C.R. 
20. In the case at hand, the proceeding was initiated before the 
learned District Judge. During the pendency of the proceeding, the 
Explanation of sub-section (2) of Section 4 7 of the 1996 Act was 
amended. The amended Explanation reads as follows:-
"Explanation: In this section and in the sections following in this 
Chapter, "Court" means the High Court having original jurisdiction 
to decide the questions forming the subject-matter of the arbitral 
award if the same had been the subject-matter of a suit on its 
original civil jurisdiction and in othercascs, in the High Court having 
jurisdiction to hear appeals from decrees of courts subordinate to 
such High Comt." 
21. In spite of the amendment, the learned District Judge passed 
an order. However, the respondent moved the High Court and it was 
accepted by both the parties before the learned Single Judge that the 
District Judge had no jurisdiction and thereafter the learned Single Judge 
took up the matter and passed the order. The Division Bench in the 
impugned order has referred to Section 13( I) of the Act. It reads as 
follows:-
" 13 (I) Any person aggrieved by the decision of the Commercial 
Court or Commercial Division of a High Cou11 may appeal to the 
Commercial Appellate Division of that High Court within a period 
of sixty days from the date of judgment or order, as the case may 
be: 
Provided that an appeal shall lie from such orders
passed by a 
Commercial Division or a Commercial Com1 that are specifically 
enumerated under Order XLIJI of the Code of Civil Procedure, 
1908 as amended by this Act and section 3 7 of the Arbitration and 
Conciliation Act, 1996." 
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 under:-
"5. (I) After issuing notification under sub-section (I) of section 3 
or order under sub-section (I) 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
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE 
LTD & ANR. (DIPAK MISRA, J.] 
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." 
23. The aforesaid pro'tision 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. l 0.2015. 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( I )(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 I 996 Act and has to be adjudicated within the said parameters. 
25. Resultantly, we affirm the judgment of the High Court though 
for different reasons. Accordingly the appeals stand dismissed without 
any order as to costs. 
Devika Gujral 
Appeals dismissed. 
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