Case Note & Summary
The case involves an appeal filed by Home Care Retail Marts Private Limited under Section 37 of the Arbitration and Conciliation Act, 1996, challenging two orders dated 28 July 2015 and 23 October 2015 passed by a learned Single Judge in Arbitration Petition No.715 of 2014, which was filed under Section 34 of the Act. The impugned orders essentially vacated the interim order passed by the arbitrator under Section 17 of the Act, as modified by the court and the Supreme Court, upon the final award rejecting the appellant's claims. The respondent, Haresh N. Sanghavi, raised a preliminary objection that the appeal was not maintainable because the orders under challenge did not set aside or refuse to set aside the arbitral award, which is a prerequisite for an appeal under Section 37. The appellant contended that the orders were passed in the Section 34 proceedings and thus appealable. The court, after hearing both sides, upheld the preliminary objection, holding that an appeal under Section 37 lies only against an order under Section 34 that either sets aside or refuses to set aside the award. Since the impugned orders merely vacated interim relief and did not finally decide the Section 34 petition, the appeal was dismissed as not maintainable. The court did not delve into the merits of the case.
Headnote
A) Arbitration Law - Appeal under Section 37 - Maintainability - Section 37 of the Arbitration and Conciliation Act, 1996 - The court considered whether an appeal lies against an order under Section 34 that does not set aside or refuse to set aside the award. The respondent raised a preliminary objection that the appeal was not maintainable as the impugned orders merely vacated interim relief and did not decide the petition under Section 34. The court upheld the objection and dismissed the appeal as not maintainable. Held that an appeal under Section 37 is maintainable only against orders under Section 34 that set aside or refuse to set aside the arbitral award (Paras 3-5).
Issue of Consideration
Whether an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 is maintainable against an order passed under Section 34 of the Act that does not set aside or refuse to set aside the arbitral award.
Final Decision
The appeal is dismissed as not maintainable. The court upheld the preliminary objection that no appeal lies under Section 37 against an order under Section 34 that does not set aside or refuse to set aside the arbitral award.
Law Points
- Appeal under Section 37 of Arbitration and Conciliation Act
- 1996 is maintainable only against orders under Section 34 that set aside or refuse to set aside an arbitral award
- Interim orders passed under Section 34 not setting aside or refusing to set aside award are not appealable
Case Details
2016 LawText (BOM) (05) 37
APPEAL (L) NO.849 OF 2015 IN ARBITRATION PETITION NO.715 OF 2014
Anoop V. Mohta, A.A. Sayed
Mr. Rajiv Kumar, Senior Advocate a/w Mr. K.G. Munshi, Ms. Shivani Khanna i/b M/s. FZB & Associates for Appellant; Mr. S.U. Kamdar, Senior Advocate a/w Mr. Y.M. Chaudhari i/b Mr. Omkar Kulkarni for Respondent
Home Care Retail Marts Private Limited
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Nature of Litigation
Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 challenging orders passed in a Section 34 petition.
Remedy Sought
The appellant sought to challenge the orders dated 28 July 2015 and 23 October 2015 passed by the learned Single Judge in Arbitration Petition No.715 of 2014.
Filing Reason
The appellant was aggrieved by the orders which vacated the interim order passed by the arbitrator under Section 17 of the Act, as modified by the court and the Supreme Court, upon the final award rejecting the appellant's claims.
Previous Decisions
The learned Single Judge had passed an order on 28 July 2015 admitting the Section 34 petition and vacating the interim order. This order was corrected on 23 October 2015 upon an application for speaking to the minutes.
Issues
Whether the appeal under Section 37 of the Arbitration and Conciliation Act, 1996 is maintainable against orders passed under Section 34 that do not set aside or refuse to set aside the arbitral award.
Submissions/Arguments
Respondent's preliminary objection: The appeal is not maintainable as the impugned orders do not set aside or refuse to set aside the award, which is a prerequisite for an appeal under Section 37.
Appellant's contention: The orders were passed in the Section 34 proceedings and are therefore appealable under Section 37.
Ratio Decidendi
An appeal under Section 37 of the Arbitration and Conciliation Act, 1996 is maintainable only against an order under Section 34 that sets aside or refuses to set aside the arbitral award. Orders that merely vacate interim relief or are procedural in nature do not qualify for appeal under Section 37.
Judgment Excerpts
Learned Senior Counsel for the Respondent raised a preliminary objection and submitted that the Appeal is not maintainable and therefore, the Appeal ought not to be entertained and is required to be dismissed. He submitted that no Appeal lies against an order under section 34 of the Arbitration Act where such order does not set aside or refuses to set aside the Award.
Procedural History
The appellant filed Arbitration Petition No.715 of 2014 under Section 34 of the Arbitration and Conciliation Act, 1996 challenging an arbitral award. The learned Single Judge passed an order on 28 July 2015 admitting the petition and vacating the interim order. This order was corrected on 23 October 2015 upon an application for speaking to the minutes. The appellant then filed the present appeal under Section 37 challenging both orders.
Acts & Sections
- Arbitration and Conciliation Act, 1996: Section 17, Section 34, Section 37
