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Judgment
17 paragraphs · 868 wordsK.L. Manjunath, J.—The appellant is challenging the legality and correctness of the ex-parte judgment passed by the Prl. District Judge, Gulbarga in Arbitration Case No. 1/06 dated 24.8.2006. The facts leading to this case are as hereunder:
The appellant is an Engineering Contractor. Certain works were entrusted by respondents 1 and 2 to him in regard to the execution of the work and payments to be made to the appellant. A dispute arose which resulted in appointing the 3rd respondent as an Arbitrator. Before the Arbitrator, a contention was raised that he has no jurisdiction to entertain the dispute and that the Arbitraral Tribunal cannot entertain the claim. This objection was raised by the respondents. The Arbitrator after hearing the respondents 1 and 2 and the appellant passed an order u/s 16 of the Arbitration and Conciliation Act holding that the Arbitraral Tribunal has no competency to entertain the dispute by his order dated 22.1.2003. Being aggrieved by the order of the Arbitrator in holding that the dispute between the parties is not an arbitrable dispute as there is no arbitral clause, the appellant filed an appeal u/s 37(1) of the Act. The said appeal was preferred by the appellant 3 years and 1 month after the order was passed by the Arbitrator u/s 16 of the Arbitration and Conciliation Act, 1996. The learned District Judge after hearing the appellant has dismissed the appeal mainly on the ground that the appeal filed by the appellant u/s 37(2)(a) of the Act was barred by limitation. Challenging the legality and correctness of the same, the present appeal is filed u/s 37 of the Act again.
Learned Counsel for the appellant contends that since there is no period of limitation prescribed u/s 37 of the Act, the appeal filed u/s 37 before the learned District Judge was maintainable. He further contends that even if the Court was of the opinion that there is delay and laches in not approaching the Court within a reasonable time, the application filed by the appellant explaining the delay and laches could have been considered by the learned District Judge properly.
Per contra, the learned Counsel for the respondents contends that the present appeal filed u/s 37 of the Act itself is not maintainable as it amounts to a second appeal which is prohibited under sub-section (3) of Section 37 of the Act. Therefore, he contends that the present appeal is to be dismissed on the question of maintainability.
In view of the rival contentions, we have to consider whether a second appeal is maintainable u/s 37 of the Arbitration and Conciliation Act, 1996 before this Court?
Section 37 of the Arbitration and Conciliation Act, 1996 reads as hereunder:
Appealable orders,-(1) An appeal shall be from the following orders (and from no others) to the Court authorized 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 or 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.
Admittedly, it is not in dispute that the order passed u/s 16 of the Act was challenged by the appellant by filing an appeal before the learned District Judge invoking the provisions of Section 37 only. The appeal has been dismissed. Again invoking the same provision of law, the present appeal is filed.
It is no doubt true that there is no limitation prescribed u/s 37 to file an appeal. When the respondents point out the maintainability of filing a second appeal, whether the appellant was required to file an appeal u/s 37 before the learned District Judge within a reasonable time or not need not be considered by us as we are required to consider the maintainability of the present appeal.
From sub-section (3) of Section 37 of the Act, it is very clear that no second appeal shall lie from an order passed in appeal u/s 37. The second appeal can be maintained only before the Hon''ble Supreme Court and not before any other Court.
In the instant case, by invoking Section 37 of the Act, the appellant has exhausted the remedy open to him by filing an appeal before the District Court. Again by invoking the same Section, he cannot maintain a second appeal since the present appeal amounts to filing of a second appeal under the provisions of Section 37 of the Act. Therefore, we are of the considered view that the present appeal has to be dismissed as not maintainable without considering the case of the appellant on merits. In the result, the appeal is dismissed as second appeal is not maintainable u/s 37 of the Arbitration and Conciliation Act, 1996.