Akrati Promoters and Developers vs U.P. Avas Evam Vikas Parishad

Heard Sri S.S. Upadhyaya, Advocate holding brief for Sri Rajneesh Sharma, appearing for the Appellant and Sri C.S. Singh appeared for the Respondent.

The present Appeal has been filed u/s 37 of Arbitration and Conciliation Act, 1996 ( hereinafter referred to as the ''Act'') against the order dated 21st January, 2011 passed by learned District Judge which is quoted below:

21.01.2011- Seen the Munsarim report.

Register as Misc. Case.

Issue notice to the O.P. Steps both ways within a week.

Fix on 04.02.2011 for hearing.

Stay matter shall be heard after appearance of the opposite party.

Sd/

District Judge

21.01.2011

The appeal was taken on 29th January, 2011 when this Court directed the learned Counsel appearing for the Appellant to go through the question as to whether the appeal is maintainable u/s 37 of the Act or not. Today Sri S.S. Upadhyaya, Advocate holding brief for Sri Rajneesh Sharma appearing for the Appellant submitted that the present appeal is maintainable as the impugned order would amount to refusal of grant the measure provided u/s 9 of the Act. He relied upon the decision of the Apex Court in the case of Firm Ashok Traders and Another etc. Vs. Gurumukh Das Saluja and Others etc., . In paragraph 17 of the judgment, the Hon''ble Supreme Court has held that the purpose of enacting Section 9, read in the light of the Model Law and UNCITRAL Rules is to provide '' interim measures of protection.'' The order passed by the Court should fall within the meaning of the expression '' an interim measure of protection '' as distinguished from an all-time or permanent protection. He also relied upon the interim order dated 27th of March, 2009 passed by this Court in First Appeal From Order No. 1012 of 2009, M/s Mahindra & Mahindra Financial Services Limited v. Anil Kumar Tiwari. Under similar circumstances this Court had been pleased to entertain the appeal and to grant an interim order, he, therefore, submitted that the present appeal is maintainable.

We have given our anxious consideration to the various plea raised by learned Counsel for the Appellant and find that u/s 37 of the Act a limited right of appeal has been given. For ready reference Section 37 of the Act is reproduced below:

Appealable orders. -(1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:

(a) granting or refusing to grant any measure u/s 9;

(b) setting aside of refusing to set aside an arbitral award u/s 34.

(2) An appeal shall also lie to a Court from an order granting of the arbitral tribunal (a) accepting the plea referred in Sub-section (2) or Sub-section (3) of Section 16; or (b) granting or refusing to grant an interim measure u/s 17.

(3) 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.

From perusal of the aforesaid provisions we find that an appeal u/s 37 of the Act lies against the order granting or refusing to grant any measure u/s 9. Issuance of notice to the opposite party and fixing the matter on a specific date on an application filed u/s 9 of the Act would not amount to refusing to grant any measure u/s 9 of the Act so as to make the said order appealable.

We are, therefore, of the considered opinion that the present appeal is not maintainable u/s 37 of the Act as a right of appeal is a creature of statute and has to be strictly construed. Nobody has a vested right to file an appeal against any order or every order. So far as the decision of the Hon''ble Supreme Court in the case of Firm Ashok Traders and Anr. (supra) is concerned, it does not lay down any principle which may hold the appeal herein to be maintainable. Similarly in the case of M/s Mahindra & Mahindra Financial Services Limited (supra), the question of maintainability of appeal was not taken up for consideration before the Hon''ble Court and therefore, the order dated 27th March, 2009, granting interim protection in similar circumstances would not be of any help to the Appellant.

In view of the forgoing discussions, we are of the considered opinion, the present appeal is not maintainable and is dismissed as not maintainable. We may, however, mention that the Appellant is not remedy less. He may, if so advised, challenge the order dated 21st January, 2011 by taking recourse to writ proceedings.