LexARUN DEV UPADHYAYA versus INTEGRATED SALES SERVICE LTD & ANR.
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A B c D E F G H (2016] 7 S.C.R. 976 ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE LTD & ANR. Civil Appeal Nos. 8475-76 of2016 SEPTEMBER 30, 2016 [DIPAK MISRA AND C. NAGAPPAN, JJ.J Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015: s.13(1) - international arbi1ration - Letters Patent Appeal to the Division Bench of High Court agaimt the judgment of the Si11gle Judge for enforcement of jiJre ign award - Maintainability of - Held: s.13 of the Commercial Courts Act bars an appeal under Letters Patent unless an appeal is provided under the 1996 Act - s.13 has to be read in conjunction with s.5 of the Act - s.5 clearly lays down that a forum is created i.e. Commercial Appellate Division -Letters Patent Appeal cannot be invoked if s.50 of the 1996 Act does not provide for an appeal - But it does provide for an appeal - s.50 of 1996 Act provides that appeal can lie if an order is passed refusing to refer the parties lo arbitration as engrafted under s.45 of 1996 Act or to enforce a foreign award as envisaged under s.48 of the said Act -A conspectus reading of ss.5 and 13 of the Commercial Courts Act and s.50 of lhe 1996 Act which has remained unamended leads to the irresistible conclusion that a Letters Patent Appeal is maintainable before the Division Bench - it has to be treated as an appeal under s.50(l)(b) of the 1996 Act and has to be adjudicated l1;ithin the said parameters - Arbitration and Conciliation Act, 1996 - s.50 - Appeal - Letters Patent - Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeal.i) Act, 1896 - s.3(1). Dismissing the appeals, the Court HELD: Section 50 of 1996 Act shows that appeal can lie if an order is passed refusing to refer the parties to arbitration as engrafted under Section 45 of the 1996 Act or to enforce a foreign award as envisaged under Section 48 of the said Act. In the case at hand, the proceeding was initiated before the District Judge. During the pendency of the proceeding, the E~planation of sub- 976 ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE LTD & ANR. section (2) of Section 47 of the 1996 Act was amended. In spite of the amendment, the District Judge passed an order. However, the respondent moved the High Court and it was accepted by both the parties before the Single Judge that the District Judge had no jurisdiction (in view of amendment) and thereafter the Single Judge took up the matter and passed the order. The Division Bench in the impugned order has referred to Section 13(1) of the Act. A perusal of section 13(1) shows that an appeal would lie if it is in accordance with the provisions of the Act. The said provision has to be read in conjunction with Section 5 of the Act. Section 5 clearly lays down that a forum is created, i.e., Commercial Appellate Division. Section 50(l)(b) of the 1996 Act provides for an appeal. Section 50(1)(b) has not been amended by the Act that has come into force on 23.10.2015. Thus, an appeal under Section 50(1)(b) of the 1996 Act before the Division Bench is maintainable. Thus analysed, the impugned judgment of the Single Judge under Section 50(l)(b) of the 1996 Act is passed in the original side of the High Court. Be that as it may, under Section 13 of the Act, the single Judge has taken the decision. Section 13 bars an appeal under Letters Patent unless an appeal is provided under the 1996 Act. Such an a1>peal is provided under Section 5 of the Act. The Letters Patent Appeal could not have been invoked if Section 50 of the 1996 Act would not have provided for an appeal. But it docs provide for an appeal. A conspectus reading of Sections 5 and 13 of the Act and Section 50 of the 1996 Act which has remained unamended leads to the irresistible conclusion that a Letters Patent Appeal is maintainable before the Division Bench. It has to be treated as an appeal under Section 50(l)(b) of the 1996 Act and has to be adjudicated within the said parameters. [Paras 13, 20, 21, 22, 24) (984-F-G; 990-A, C-D, G; 991-B-E] Padamshri Purushottam Vyas & Ors. v. Tusar Dhansukhlal Shah 2016 SCC ONLINE BOM 255; Fuerst Day Lawson Limited v. Jindal Exports Limited (2011) 8 SCC 333 : 2011 (11) SCR 1; Jamshed N. Guzdar v. State of Maharashtra and Ors. (2005) 2 SCC 591:2005 (1) SCR 223; Jet Air (India) Ltd. v. Subrata Roy Sahara 2011 SCC Online Bom 1379; Shin-Etsu Chemical Compa
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