Case Note & Summary
The case arises from an Arbitration Petition filed under Section 30 of the Arbitration Act, 1940, challenging an arbitral award dated 25 April 1989. During the pendency of the petition, several parties died: the First Petitioner on 10 December 1997, the Second Petitioner on 9 November 2004, the Third Petitioner on 12 January 2002, and the Second Respondent on 12 June 1997. The appellants (original petitioners) filed a Chamber Summons under Order 22 Rule 9 of the Code of Civil Procedure, 1908, seeking to set aside the abatement caused by these deaths. The Chamber Summons was dismissed by the learned Single Judge on 15 February 2013. The appellants appealed against that order. At the hearing of the appeal, the respondents raised a preliminary objection that no appeal lies against an order refusing to set aside abatement in an arbitration petition, in view of Section 39 of the Arbitration Act, 1940. Section 39(1) provides that an appeal shall lie only from orders specified in clauses (i) to (vi), which include orders superseding an arbitration, on an award stated in the form of a special case, modifying or correcting an award, filing or refusing to file an arbitration agreement, staying or refusing to stay legal proceedings, and setting aside or refusing to set aside an award. The Court, relying on the Supreme Court judgment in Union of India vs. Mohindra Supply Co., held that the right of appeal under the Arbitration Act is confined to the orders enumerated in Section 39(1) and no others. An order refusing to set aside abatement is not one of those orders. Therefore, the appeal was not maintainable. The Court dismissed the appeal as not maintainable, without expressing any opinion on the merits of the Chamber Summons.
Headnote
A) Arbitration Act, 1940 - Appealable Orders - Section 39 - Order refusing to set aside abatement - The Court held that an order refusing to set aside abatement of an arbitration petition is not one of the orders enumerated in Section 39(1) of the Arbitration Act, 1940, and therefore no appeal lies against such an order. The right of appeal is confined to the orders specified in clauses (i) to (vi) of Section 39(1) and no others. (Paras 4-6)
B) Arbitration Act, 1940 - Letters Patent Appeal - Section 39 - Bar on appeals - The Court held that Section 39 of the Arbitration Act, 1940, being a special statute, excludes the applicability of Letters Patent Appeals against orders passed under the Act, except those specifically enumerated. The judgment in Union of India vs. Mohindra Supply Co. was relied upon to hold that the jurisdiction under any other law is not saved. (Paras 5-6)
Issue of Consideration
Whether an appeal lies against an order of a Single Judge declining to set aside abatement of an Arbitration Petition under the Arbitration Act, 1940, in view of Section 39 of the said Act.
Final Decision
The appeal is dismissed as not maintainable. No order as to costs.
Law Points
- Appeal lies only from orders specified in Section 39(1) of the Arbitration Act
- 1940
- and from no others
- Order refusing to set aside abatement is not an appealable order under Section 39
- Letters Patent Appeal is not available where the statute expressly bars appeals except those enumerated.
Case Details
2013 LawText (BOM) (07) 63
Appeal No. 195 of 2013 in Chamber Summons No. 1649 of 2006 in Arbitration Petition No. 66 of 1991 in Award No. 172 of 1990
Dr. D.Y. Chandrachud, S.C. Gupte
Mr. Ravi Kadam, Senior Advocate with Mr. Chetan Kapadia, Ms. Yogini Gada i/b. M/s. Harakchand & Co. for the Appellants; Mr. Gaurav Joshi with Mrs. Heena Chheda with Mr. Avdhoot Prabhu and Mr. Anirod Hariani i/b. M/s. Hariani & Co. for the Respondents.
Padamshi Khimji Chheda & Ors.
Kesarben Laxmichand Dedia & Ors.
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Nature of Litigation
Appeal against order of Single Judge dismissing Chamber Summons for setting aside abatement in an Arbitration Petition challenging an arbitral award.
Remedy Sought
The appellants sought to set aside the abatement of the Arbitration Petition caused by the deaths of the original petitioners and respondent, and to bring the legal representatives on record.
Filing Reason
The Chamber Summons was filed because the Arbitration Petition had abated due to the deaths of parties, and the appellants sought to condone the delay and set aside the abatement.
Previous Decisions
The learned Single Judge dismissed the Chamber Summons on 15 February 2013.
Issues
Whether an appeal lies against an order of a Single Judge declining to set aside abatement of an Arbitration Petition under the Arbitration Act, 1940, in view of Section 39 of the said Act.
Submissions/Arguments
The respondents raised a preliminary objection that no appeal lies against an order refusing to set aside abatement in an arbitration petition, as Section 39 of the Arbitration Act, 1940, only allows appeals from orders specified therein, and an order on abatement is not one of them.
The appellants argued that the appeal was maintainable under the Letters Patent of the High Court.
Ratio Decidendi
Under Section 39 of the Arbitration Act, 1940, an appeal lies only from the orders enumerated in clauses (i) to (vi) of sub-section (1) and from no others. An order refusing to set aside abatement is not one of those enumerated orders. Therefore, no appeal lies against such an order. The Letters Patent jurisdiction is not available as the Arbitration Act is a special statute that excludes appeals not provided for therein.
Judgment Excerpts
Section 39 essentially provides for two prohibitory mandates. The first is that an appeal shall lie from orders of the description set out in clauses (i) to (vi) and from no other orders.
These provisions were construed in the judgment of the Supreme Court in Union of India vs. Mohindra Supply Co. The Supreme Court held that by Section 39, the jurisdiction of the Court under any other law for the time being in force is not saved.
Procedural History
An Arbitration Petition was filed under Section 30 of the Arbitration Act, 1940, challenging an award dated 25 April 1989. During its pendency, the First Petitioner died on 10 December 1997, the Second Petitioner on 9 November 2004, the Third Petitioner on 12 January 2002, and the Second Respondent on 12 June 1997. A Chamber Summons under Order 22 Rule 9 CPC was filed in 2005 to set aside abatement but was withdrawn on 21 December 2005 with liberty to file a fresh one. A fresh Chamber Summons was filed on 22 December 2006. The learned Single Judge dismissed the Chamber Summons on 15 February 2013. The appellants appealed against that order. The appeal was heard on 22 July 2013 and dismissed as not maintainable.
Acts & Sections
- Arbitration Act, 1940: Section 30, Section 39
- Code of Civil Procedure, 1908: Order 22 Rule 9
