State of Punjab vs Protos Engineering Co. Pvt. Ltd.

R.S. Pathak, C.J.—This is an appeal under Clause 10 of the Letters Patent against the order of a learned single Judge extending the time for making an award by a period of four months.

The parties entered into an agreement on August 14, 1952, for supervision of the construction of an aerial rope way by the Respondent. Under Clause 10 of the agreement if a question or difference arose between the parties the matter was to be referred to arbitration. A dispute did arise between the parties and it was referred to arbitration. The arbitration proceedings took on a protracted course and because of one reason or another, including the death of the arbitrators, the proceedings could not be concluded and the award made. Consequently an application was made to this Court by the Respondent for extension of time. To that application the Appellants raised a number of objections, among them being that this Court had no jurisdiction to entertain the application. The matter came on for consideration before our brother C.R. Thakur, J. He pointed out that as the agreement between the parties had been entered into at Simla the cause of action arose at Simla, and, therefore, the court at Simla had jurisdiction. He repelled the contention that because on the date of execution of the agreement Simla was situated in the State of Punjab, no court in the State of Himachal Pradesh had jurisdiction. Accordingly, he held that he had jurisdiction to entertain the application for extension of time. By his order dated August 24, 1973, purporting to be u/s 28 of the Arbitration Act, he has allowed the application and extended the time for making the award by four months from the date of order. And now this appeal.

Learned Counsel for the Respondent has raised a preliminary objection. He contends that the appeal is not maintainable. It is urged that Section 39(1) of the Arbitration Act does not contemplate an appeal against an order u/s 28 of the Act extending the time for making an award, and as only those orders under the Act are appealable which are specifically mentioned in Section 39(1) of the Act, the order of the learned single Judge cannot be made the subject of an appeal. In my opinion, there is force in this contention and it must be accepted.

Section 39(1) of the Arbitration Act provides that an appeal shall lie from those orders passed under the Act which are specified in that sub-section, and from no others. The Arbitration Act is, as its preamble indicates, a consolidating and amending statute. It is, therefore, a complete code of the law relating to arbitration. If an appeal lies from any order under the Arbitration Act, it is necessary to refer to some provision of that Act creating such appeal. When Section 39(1) declares that an appeal shall lie from only those orders passed under the Act specified in that provision and from no others it excludes appeals from all other orders passed under the Act. Resort cannot be had to any general right of appeal created under the Letters Patent or other enactments. The present appeal has been filed under Clause 10 of the Letters Patent, but Clause 37 of the Letters Patent makes the provision subject to the legislative powers of the Governor General in Legislative Council. Clause 10 of the Letters Patent is, therefore, subject to Section 39(1) of the Arbitration Act. That is the position in law as laid down by the Supreme Court in the Union of India (UOI) Vs. Mohindra Supply Company, . Inasmuch as an order u/s 28 of the Act extending the time for making an award is not an order for which an appeal is provided by Section 39(1), no appeal can be entertained against such order, and recourse cannot be had to Clause 10 of the Letters Patent for that purpose.

The principle propounded by the Supreme Court in The Union of India (supra) has been followed by this Court in Gopal Singh and Ors. v. Union of India 1972 Sim. 77 , where a Division Bench held that neither Section 10 of the Delhi High Court Act nor Clause 10 of the Letters Patent can be invoked. The same principle was followed in The Balde Pentaiah Vs. Balaganti Mallaiah, where another Division Bench of this Court has held that an order granting an interim injunction by virtue of Section 41(b) of the Arbitration Act is not appealable u/s 39(1) of the Act and Clause 10 of the Letters Patent cannot be resorted to for sustaining an appeal. In Balde Pentaiah Vs. Balaganti Mallaiah, the Andhra Pradesh High Court has held that reference cannot be made to the Letters Patent for the purpose of determining whether a right of appeal exists against orders made under the Arbitration Act. A Full Bench of the Delhi High Court in Union of India Vs. A.S. Dhupia and Another, has declared that Section 39(1) of the Arbitration Act alone can be read for the purpose of determining whether an order under that Act is appealable, and that so far as Section 10 of the Delhi High Court Act is concerned it could be referred to only for the purpose of determining the forum of appeal.

The learned Advocate General, appearing for the Appellants, contends that the learned single Judge had no jurisdiction to entertain the application for extension of time, and therefore, the order under appeal cannot be construed as an order under that Act. Not being an order under the Act, he says, the bar of Section 39(1) cannot be invoked and, therefore, reference is permissible to Clause 10 of the Letters Patent for sustaining the appeal. Now, the learned single Judge has held that he had jurisdiction to entertain the application and he made the impugned order in the purported exercise of jurisdiction u/s 28 of the Act. For the purpose of determining whether an appeal lies against an order, what is relevant is the jurisdiction under which the order purports to have been passed and not the jurisdiction under which it could have been passed. That principle is well settled, and reference may be made to Kammela Somasundaramma v. Kammela Seshagirrao alias Giri Rao and Ors ILR 1947 Mad. 378. In the present case, as the order was made in the purported exercise of jurisdiction u/s 28 of the Arbitration Act, the order must be considered as one made under that Act for the purpose of determining whether an appeal lies against it.

It was faintly contended by the learned Advocate General that what was stated by the Supreme Court in The Union of India (supra) in regard to the construction of Section 39(1) of the Arbitration Act is by way of a general observation only and, therefore, he says, it is not binding on this Court. In this connection reliance is placed upon Raval and Co. Vs. K.G. Ramachandran and Others, It seems to me clear that the observations to which the learned Advocate General refers constitute the very basis of the decision rendered by the Supreme Court in that case, and must therefore, be taken as laying down the law binding on the High Courts. It was so understood by the High Courts in the case mentioned above, and I do not think that a contrary view is permissible.

The learned Advocate General then urges that the application for extension of time entertained by the learned single Judge should be deemed to be a plaint, and that in holding that he had jurisdiction to entertain it the learned single Judge should be taken to have made an order refusing to return a plaint. On that assumption, the learned Advocate General says, an appeal lies against the order. In my opinion, an application for extension of time can in no circumstance be considered as a plaint. A plaint is a document which institutes a substantive proceeding. An application for extension of time for making an award does not. That being so, the observations of the Allahabad High Court in Shri Krishen and Anr. v. Radha Kishen and Anr. AIR 1952 All. 692, on which the learned Advocate General relies have no relevance.

There was some controversy whether an order extending the time for making an award is a "judgment" within the meaning of Clause 10 of the Letters Patent, and a number of cases were cited by the learned Advocate General to show that such an order is a "judgment". In the view that Clause 10 of the Letters Patent cannot be invoked at all, I consider it unnecessary to enter into this point.

Accordingly, the appeal fails and is dismissed with costs.

D.B. Lal J.

I agree.