Ambika Enterprises vs Trishna Bose and Another

D.K. Seth, J.—The deficit Court fee has since been filed on 7th March, 2003 under filing No.-A-3017 of 2003 the defect is removed. The appeal is in order.

An application u/s 9 of the Arbitration and Conciliation Act, 1996 (Act) was filed by the appellant. In the said proceedings, an appointment of Receiver was obtained. The respondent filed an application for vacating the order. Ultimately, however, the proceeding u/s 9 of the 1996 Act was dismissed for non-prosecution resulting into the discharge of the Receiver. Subsequently, the appellant filed an application u/s 151 of the CPC (CPC) seeking modification of the order of dismissal of the proceedings for non-prosecution discharging of the Receiver. It was sought to be contended that the nature of the application was that of an application for review. But this contention was negatived. The application was found to be one u/s 152 CPC. Therefore, the learned Trial Judge had rejected the application. Against this order, the present appeal has since been filed.

The learned counsel for the appellant insisted that this application, though described as one u/s 151 CPC is in the nature of an application for review, an extended limb of the proceeding u/s 9 of the Act. Therefore, the rejection of the said application is a refusal to grant interim measure appealable within the meaning of Section 37(1)(a) of the Act. Alternatively, the learned counsel contended that if it is treated to be an application for review, then also it is an appealable order. Therefore, the appeal is maintainable.

He had also relied on a decision of this Court in Harbhajan Singh Kaur v. Unimode Finance (P) Ltd., 1997(1) CLJ 57=1998(2) Arb. LR 125 (Cal.). . In the said decision cited by the learned counsel for the appellant, the provisions of Section 9 of the Act was illustrated and measure to protect the properties during the pendency of the arbitral proceedings was held to come within the scope and ambit of the different clauses of Section 9 of the Act.

The proposition is clear and is already a settled principle of law in respect of which no one can have a different opinion. But every proposition has to be considered in the light of the facts and circumstances of each individual case. In the present case, the proceeding u/s 9 of the Act was dismissed for non-prosecution. This order was sought to be modified by an application u/s 151, CPC. It does not appear that any of the test prescribed under Order 47, Rule 1, CPC is present in the said application nor it can be treated to be an application u/s 9 of the Act after the proceeding u/s 9 of the Act has come to an end, and that too due to non-prosecution. After having got the proceedings dismissed for non-prosecution unless the proceeding is restored or it comes within the scope of Section 152, CPC or within the scope and ambit of Order 47, Rule 1, CPC and read with Section 114, CPC, there is no scope for treating an application u/s 151, CPC as an application u/s 9 of the Act which had already stood terminated. Had it been a continuance of the same proceedings, we could have accepted the contention of the learned counsel for the appellant. But by no stretch of imagination the filing of an application u/s 151, CPC could enliven or revive the proceedings which stood terminated and that too for non-prosecution at the instance of the applicant, with whom the carriage of proceeding rested, and as such, it cannot be treated to be an extended limb of the same proceedings. This also does not come within the scope of Section 152. CPC as was rightly pointed out by the learned counsel for the appellant. Even if the application is treated as an application for review under Order 47, Rule 1, CPC, the application having been dismissed, the order is not an appealable one.

In the circumstances, in our view, the order is not an order within the meaning of Section 37(1)(a) of the Act neither this is one u/s 9 of the Act nor an extended limb thereof. The appeal, therefore, cannot be maintained. Accordingly, it is dismissed.

This order will not prevent the appellant to seek any other relief if it is otherwise available in law on changed circumstances or on grounds of fresh cause of action, as the case may be.

R.N. Sinha, J.

I agree.