Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015:
s.13(1) – Appeal under – Against enforcement of foreign award – Maintainability of – Commercial Division of High Court passed order enforcing foreign award – Appeal against u/s. 13(1) – Dismissed on the ground that since an appeal did not lie from a judgment enforcing a foreign award under s. 50 of Arbitration Act, no such appeal would be maintainable under Commercial Courts Act – On appeal, held: s.50 is a provision contained in a selfcontained code on matters of arbitration – s.13(1) is a general provision vis-a-vis arbitration – Applying the doctrine of harmonious construction of both the statutes, they are best harmonised by giving effect to the special statute i.e. Arbitration Act vis-a-vis the more general statute i.e. Commercial Courts Act – Therefore, an appeal not maintainable u/s. 50 of Arbitration Act would not be maintainable u/s. 13(1) of Commercial Courts Act – An interpretation contrary to this would be directly contrary to the object sought to be achieved by Commercial Courts Act viz. speedy resolution of disputes – Arbitration and Conciliation Act 1996 – s.50 – Interpretation of Statutes – Doctrine of Harmonious Construction. Dismissing the appeals, the Court
HELD: 1. Section 50 of Arbitration and Conciliation Act, 1996 is a provision contained in a self-contained code on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in*Fuerst Day Lawson* case that appeals which are not mentioned in the Act, are not permissible. This being the case, it is clear that Section 13(1) of the Commercial Court, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Commercial Courts Act) being a general provision vis-à-vis arbitration relating to appeals arising out of commercial disputes, would obviously not apply to cases covered by Section 50 of the Arbitration Act. [Para 21] [933-B-D]
2. The question still arises as to why Section 37 of the Arbitration Act was expressly included in the proviso to Section 13(1) of the Commercial Courts Act, which is equally a special provision of appeal contained in a self-contained code, which in any case would be outside Section 13(1) of the Commercial Courts Act. One answer is that this was done ex abundanti cautela. Another answer may be that as Section 37 itself was amended by the Arbitration Amendment Act, 2015, which came into force on the same day as the Commercial Courts Act, Parliament thought, in its wisdom, that it was necessary to emphasise that the amended Section 37 would have precedence over the general provision contained in Section 13(1) of the Commercial Courts Act. Incidentally, the amendment of 2015 introduced one more category into the category of appealable orders in the Arbitration Act, namely, a category where an order is made under Section 8 refusing to refer parties to arbitration. Parliament may have found it necessary to emphasize the fact that an order referring parties to arbitration under Section 8 is not appealable under Section 37(1)(a) and would, therefore, not be appealable under Section 13(1) of the Commercial Courts Act. Whatever may be the ultimate reason for including Section 37 of the Arbitration Act in the proviso to Section 13(1), the ratio decidendi of the judgment in *Fuerst Day Lawson case would apply, and this being so, appeals filed under Section 50 of the Arbitration Act would have to follow the drill of Section 50 alone. [Para 22] [933-E-H; 934-A]
3. This, follows from the language of Section 50 itself. In all arbitration cases of enforcement of foreign awards, it is Section
50 alone that provides an appeal. Having provided for an appeal, the forum of appeal is left “to the Court authorized by law to hear appeals from such orders”. Section 50 properly read would, therefore, mean that if an appeal lies under the said provision, then alone would Section 13(1) of the Commercial Courts Act be attracted as laying down the forum which will hear and decide such an appeal. [Para 23] [934-B]
4. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison d’être for the enactment of the Commercial Courts Act is that commercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if an additional appeal is provided when Section 50 does away with an appeal so as to speedily enforce foreign awards, it would be turning the Arbitration Act and the Commercial Courts Act on their heads. [Para 28] [935-G-H; 936-A]
5. If the amount contained in a foreign award to be enforced in India were less than Rs. one crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs.one crore or more, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial Courts Act. Any such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act, viz., speedy resolution of disputes of a commercial nature involving a sum of Rs.1 crore and over. For this reason also, Section 13(1) of the Commercial Courts Act must be construed in accordance with the object sought to be achieved by the Act. Any construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. [Para 28] [936-B-D]
6. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute i.e. the Arbitration Act, vis-à-vis the more general statute, namely the Commercial Courts Act, being left to operate in spheres other than arbitration. [Para 28] [936-D-E]
*Fuerst Day Lawson Limited v. Jindal Exports Limited (2011) 8 SCC 333 : [2011] 11 SCR 1 ; Sumitomo Corporation vs. CDC Financial Services (Mauritius) Ltd. and Ors. (2008) 4 SCC 91 : [2008] 3 SCR 309 ; Arun Dev Upadhyaya v. Integrated Sales Service Ltd. (2016) 9 SCC 524 : [2016] 7 SCR 976 – relied on. CIT v. Indo-Mercantile Bank Ltd. [1959] 2 Suppl. SCR
256 ; Union of India v. Mohindra Supply Company [1962] 3 SCR 497– referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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