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PETITIONER: STATE OF WEST BENGAL

       Vs.

RESPONDENT: GAURANGALAL CHATTERJEE

DATE OF JUDGMENT11/05/1993

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) RAMASWAMY, K.

CITATION:  1993 SCR  (3) 640        1993 SCC  (3)   1  JT 1993 (3)   394        1993 SCALE  (2)798

ACT: Arbitration  Act,  1940: Sections 39  (1)  and  (2)--Letters Patent  Jurisdiction Clause 15--An appeal against the  order passed  by  Single  Judge of High  Court  under  Section  39 (1)--Whether  appealable u/s 39 (2) or under Letters  Patent Jurisdiction--Section 39(1) itself lays down when an  appeal could be filed--Appeal held not maintainable.

HEADNOTE: Despite  several  letters  by the respondent  to  the  Chief Engineer  Public works Department the State did not  appoint any Arbitrator as provided in Clause 25 of the agreement. Shri  D.K.  Roy  Choudhry  who  was  appointed  as  a   sole Arbitrator   by  the  learned  Single  Judge  revoking   the authority  of  the Chief Engineer to act  as  an  Arbitrator under the agreement. On  appeal  by the State under Section 39(2) of the  Act  or under  Letters Patent.  The High Court dismissed the  appeal as not maintainable. This appeal is against the judgment of the High Court. Appeal dismissed, HELD:  1.Section  39 of the Arbitration Act  came  upon  for consideration  in U.O.I v. Mohindra Supply  Company  [1962]3 SCC  497 and the Court held that no Second Appeal lay  under section  39(2) against a decision given by a learned  Single Judge   under   Section  39(1).   Arbitration   Act   is   a consolidating  and amending act relating to arbitration,  it must  be construed without any   assumption that it was  not intended  to alter the law relating to appeals.   The  Court held  that  in  view of bar created by  sub-section  (2)  of Section 39 debarring a second appeal from an order passed in appeal  under  sub-section  (1)  that  the  ’conclusion  was inevitable  that it was so done with a view to restrict  the right of appeal within strict limits defined by Section 39’. Therefore  the maintainability of the appeal  under  Letters Patent it stands concluded by this 641 decision. (642-G-H) 2.  Sub-section (1) of Section 39 of the Arbitration Act  is extracted below:-               "(1)  An appeal shall lie from  the  following               orders  passed  under this Act  (and  from  no

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             others) to the Court authorised by law to hear               appeals  from original decisions of the  Court               passing the order.               An order-               (1)   superseding an arbitration;               (ii)  on  an  award stated in the  form  of  a               special case;               (iii) modifying or correcting an award;               (IV)  filing   or   refusing   to   file    an               arbitration agreement;               (v)   staying   or  refusing  to  stay   legal               proceedings  where  there  is  an  arbitration               agreement;               (vi) setting aside or refusing to set aside an               award;               Provided  that the provisions of this  Section               shall not apply to any order passed by a Small               Causes Court._               (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". (643-D-E-GH) provides  that  an  appeal could lie only  from  the  orders mentioned in the sub-Section  itself. Since the order passed by learned Single Judge revoking the authority of the  Chief Engineer  on  his failure to act as an  Arbitrator  was  not covered in either of the six clauses mentioned in Section 39 it  is  obvious that no appeal could be  filed  against  the order of the learned Single Judge. (644- 642

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2544 of 1993. From the judgment and Order dated 7.5. 1992 of the  Calcutta High  Court  in Appeal No. Nil of 1992 in Matter No.  21  of 1991. P.S, Poti, and S.K. Nandy for the Appellant. K.  Parasaran, A.K. Ganouli, G.K. Banerjee and.  Som  Mandal for the Respondent. The Judgment of the Court was delivered by. R.M.  SAHAI, J. The short and the only question of law  that arises for consideration in this appeal is if an appeal  was maintainable  against an order passed by the Learned  Single Judge  under  Section 39(1) of the  Arbitration  Act  either under  Section 39(2) of the Act or under the Letters  patent jurisdiction. Facts  are not in dispute.  Since the State did not  appoint any arbitrator as provided for in clause 25 of the agreement despite  letters  by the respondent to the  Chief  Engineer, Public Works Department (P.W.D) and the Secretary P.W.D. the respondent  approached the High Court and a  Learned  Single Judge  by  order  dated  6th  September,  1991  revoked  the authority of the Chief Engineer to act as an arbitrator  and directed  one  Shri D.K. Roy Chowdhury to act  as  the  sole arbitrator  as  suggested by the respondent.   Against  this order State filed an appeal which has been dismissed by  the Division Bench upholding the objection of the respondent  as not maintainable.  It has been held that the appeal was  not maintainable  either  under Section 39(2) or  under  Letters Patent.   It is the correctness of this view that  has  been assailed in this appeal. Section 39 of the Arbitration Act came up for  consideration

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in Union of India v. Mohindra Supply Company [19621 3 S.C.R. 497.   The  Court  after going  into  detail  and  examining various  authorities  given by different High  [Courts  held that  no, second appeal lay under Section 39 (2)  against  a decision  given  by  a Learned Single  Judge  under  Section 39(1).  In respect of the jurisdiction under Letters  Patent the  Court  observed  that  since  Arbitration  Act  was   a consolidating  and amending act relating to  arbitration  it must  be  construed without any assumption that it  was  not intended  to alter the law relating to appeals.   The  Court held  that  in  view of bar created by  sub-section  (2)  of Section 3 9 debarring an, second appeal from an order passed in appeal under sub-section (1) the ’conclusion was 643 inevitable  that it was so done with a view to restrict  the right of appeal within strict limits defined by Section 39’. Therefore, so far the second part is concerned, namely,  the maintainability of the appeal under Letters Patent it stands concluded by this decision. The Learned counsel for the appellant vehemently argued that since the decision by the Supreme Court was in respect of an appeal directed against an order passed by a Learned  Single Judge in exercise of appellate jurisdiction no second appeal lay but that principle could not be applied where the  order of  Learned  Single  Judge was passed  not  in  exercise  of appellate  jurisdiction  but  original  jurisdiction.    The argument appears to be without any substance as  Sub-section (1) of Section 39 which is extracted below               "(1)  An appeal shall lie from  the  following               orders  passed  under this Act  (and  from  no               others) to the Court authorised by law to hear               appeals  from  original decrees of  the  Court               passing the order:               An order-               (i)   superseding an arbitration;               (ii)  on an award stated in form of a  special               case;               (iii) modifying or correcting an award;               (iv)  filing   or   refusing   to   file    an               arbitration agreement;               (v)   staying   or  refusing  to  stay   legal                             proceedings  where  there  is  an   arbitratio n               agreement;               (vi) setting aside or refusing to set aside an               award               Provided  that the provisions of this  section               shall  not apply to any order passed by  Small               Cause Court.               (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." 644 provides  that  an  appeal could lie only  from  the  orders mentioned in the subsection itself Since the order passed by Learned  Singe  Judge revoking the authority  of  the  Chief Engineer  on  his failure to act as an  arbitrator  was  not covered in either of the six clauses mentioned in Section 39 it  is  obvious that no appeal could be  filed  against  the order of the Learned Single Judge.] Reliance  was placed on certain orders passed by this  Court and it was urged that settlement of dispute under clause  25 of  the  agreement being in exclusive domain  of  the  Chief

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Engineer the High Court was not empowered to appoint  anyone else.   The  submission is devoid of any merit.  It  is  not made  out  from  the agreement.   Rather  clause  25  itself permits  appointment  of  another arbitrator  if  the  Chief Engineer fails or omits to act as such.  Relevant portion of the agreement is extracted below               "Should  the Chief Engineer be for any  reason               unwiling  or unable to act as such  Arbitrator               such questions and disputes shall be  referred               to  an  Arbitrator  to  be  appointed  by  the               Arbitrator  shall  be  final,  conclusive  and               binding on all the parties to this contract." In one of the decisions given by this Court the order of the High  Court was set aside as the dispute being technical  in nature the appointment of anon-technical arbitrator was  not justified.   Here  in this the High Court  has  appointed  a retired  Chief  Engineer and not a  non-technical  man.   No allegation has been made against him.  Therefore, the  order of  the learned Single Judge also does not suffer  from  any infirmity. In  the Circumstances the view taken by the  Division  Bench dismissing the appeal as not maintainable appears to be well founded.  The appeal accordingly fails and is dismissed with costs. S.K.                            Appeal dismissed. 645