Juggilal Kamlapat Vs. General Fibre
Dealers Ltd. [1961] INSC 352 (12 December 1961)
WANCHOO, K.N.
SHAH, J.C.
CITATION: 1962 AIR 1123 1962 SCR Supl. (2)
101
ACT:
Arbitration-Award set aside-Reference to
arbitration not superseded-Second reference to arbitration, if
permissible-Arbitration Act. 1940 (10 of 1940), s. 19.
HEADNOTE:
Disputes which arose between the parties with
respect to carrying out a contract were referred to the arbitration of the
Bengal Chamber of Commerce in accordance with an agreement to refer disputes as
and when they arose to the arbitration of the Chamber. The award of the
Tribunal of Arbitration was set aside by the High Court. On an application for
referring the matter for arbitration de novo another tribunal was constituted
which made a fresh award. The questions which arose for decision were whether
after the first award was set aside the reference to arbitration was exhausted
and the arbitrator had become functus offcio and whether without a fresh arbitration
agreement it was not possible to have the same dispute decided again by the
arbitrator.
HELD, that the arbitrator became functus
officio after he gave the award but that did not mean that in no circumstances
could there be further arbitration proceedings where an award was set aside or
that the same arbitrator could never have anything to do with the award with
respect to the same dispute.
Section 19 of the Arbitration Act empowered
the Court not to supersede the reference and to leave the arbitration agreement
effective even when it set aside the award and thereupon it would depend upon
the terms of the arbitration agreement whether the arbitration proceedings
could go on with respect to the same dispute or with respect to some other
dispute arising under the arbitration agreement.
Barangore Jute Factory v. Hulas Chand
Rupchand. (1958) 62 C.W.N. 734, Rallis India Ltd. v. B. V. Manickam Chetty,
A.I.R. 1956 Mad. 369, and Firm Gulab Rai Girdhari Lal v. Firm Bansi Lal
Hansraj, A.I.R. 1959 Punj. 102, approved.
Morder v. Paimer, (1870) 6 Ch. App. 22 and Sutherland and Co . v. Hannevig Bros. Ltd. [1921] 1. K. B. 336, referred
to.
In the present case the first award was set
aside but as the reference had not been superseded and the arbitration 102 agreement
subsisted it was open to the Chamber to appoint another tribunal under r. X of
the Chamber Rules.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 309 and 525 of 59.
Appeals by special leave from the judgment
and orders and decree dated August 27, 1958, November 24, 1958, and March 10, 1958 of the Calcutta High Court, in Award Case No. 103 of 1955 and Appeal
from Original order No. 26 of 1956 respectively.
N. C. Chatterjee and B. P. Maheshwari, for
the appellant (in C. A. No. 309 of 59).
H.N. Sanyal, Additional Solicitor-General of
India, S. K. Gupta and D. N. Mukherjee, for respondent (in C A. No. 309 of 59).
N. C. Chatterjee, M. G. Poddar. and S.N. Mukerji,
for the appellant (in C. A. No. 525 of 59).
H. N. Sanyal, Additional Solicitor General of
India A N. Sinha and P.K. Mukherjee, for the respondent (in C. A. No. 525 of
59).
1961. December 12. The Judgment of the Court
was delivered by WANCHOO J.-These two appeals by special leave from the
judgments of the Calcutta High Court raise a common question of law and will be
dealt with together. It will be convenient to set out the facts of appeal 309
and deal with them in connection with the point raised on behalf of the
appellant. These facts are that a contract was entered into between the parties
for supply of cornsacks on August 29, 1951. The contract contained an
arbitration clause in the following terms:
"All matters, questions, disputes,
difference and/or claims arising out of and/or concerning and/or in connection
with and/or in consequence of or relating to this contract whether or not the
obligation of either or both 103 parties under this contract be subsisting at
the time of such dispute and whether or not this contract has been terminated
or purported to be terminated or completed shall be referred to the arbitration
of the Bengal Chamber of Commerce under the rules of its Tribunal of
Arbitration for the time being in force and according to such rules the
arbitration shall be conducted." Disputes arose with respect to carrying
out of the contract and on October 25, 1951, the respondent referred these
disputes to the arbitration of the Bengal Chamber of Commerce (hereinafter
referred to as the Chamber). That case was numbered 217 of 1951 in the
Chamber's records. On April 17, 1952, the tribunal of Arbitration made an award
disallowing the claim of the respondent. This award was filed in the High
Court. On May 25, 1953, the award was set aside on the ground of misconduct on
the part of the arbitrators by a learned Single Judge. That order was taken in
appeal and on July 8, 1954 L the appeal was dismissed. Later, leave to appeal
to this Court was refused and thus the order of the learned Single Judge
setting aside the award finally stood.
Soon after the award had been set aside by
the learned Single Judge, the respondent addressed a letter to the Chamber on
September 7, 1953. It was said in this letter that as the award in case No.
217-G of 1951 had been set aside by the High Court, the respondent begged to
refer the matter for arbitration de novo and enclosed its statement of the
case. Thereupon another tribunal was constituted under the rules of the Chamber
to decide the dispute afresh. The appellant appeared before the tribunal and
contended that it had no jurisdiction to make an award on a second references
in the same dispute. The tribunal, however, proceeded to decide the reference
and made the award on 104 March 15, 1955. This time the award was in favour of
the respondent. Thereupon on August 4, 1955, the appellant made an application
to the High Court praying that the award be set aside. In the alternative, the
appellant prayed that the award be declared null and void and the arbitration
agreement between the parties be superseded on the ground that the second
reference was incompetent.
The application was opposed by the respondent
and its contention was that this was not a second reference, and what the
respondent wanted was that the Chamber should in the event that had happened
take up the dispute again and make a proper award.
Reliance in support of the plea that such a
course was permissible was placed on behalf of the respondent on the decision
of the Calcutta High Court in The Barangore Jute Factory Co. Ltd. v.
Messrs. Hulas Chand Rupchand (1).
The learned Single Judge relied on the
decision in The Barangore Jute Factory (1) and held that from what that
respondent said to the Chamber its letter of September 7, 1953, it was
reasonably clear that all that it wanted was that the Chamber should in the
event that had happened take up the dispute again and make a proper award.
It could not therefore be held because of
some language used in the letter that the respondent was making a fresh
reference. Consequently, it was held that the Chamber had jurisdiction to
decide the dispute after the earlier award had been set aside and what the
respondent had asked for was for the continuance of the original reference,
which had not been superseded. The learned Single Judge then went into the
question whether there was such misconduct as would justify setting aside the
award and held that there were no grounds made out which would justify the
setting aside of the award. Consequently, the application for setting aside the
award was dismissed. Thereafter the appellant came to this Court for special 105
leave, which was granted; and that is how the matter has come up before us.
The main question that has been argued before
us is that the first award was set aside on May 25, 1953, the reference was
exhausted and the arbitrator had become functus officio and it was therefore
not possible without a fresh arbitration agreement to have the same dispute
decided again by the arbitrator, irrespective of whether the letter of
September 7, 1953, amounted to a second reference or was a mere request for
continuation of the proceedings in the original reference, which had proved
abortive as the award originally made had been set aside. Reliance in this
connection is placed on what are called certain fundamental principles
governing all arbitrations.
It is urged that once an award is wholly set
aside, the arbitrator is functus offico and thereafter he cannot function again
to decide the same dispute. This is said to be a fundamental principle of all
arbitrations, and reliance is placed on a passage in "Russel on Arbitration"
(15th Edn., p. 298), where the effect of setting aside an award is stated thus-
"If an award is wholly set aside, the arbitrator is functus officio."
Reliance is also placed on Morduse v. Palmer (1), where it was held- "An
arbitrator having signed his award is functus officio and cannot alter the
slightest error in it, even though such error has arisen from the mistake of
the clerk in copying the draft. The proper course in such a case is to obtain
an order to refer the award back to the arbitrator." Reliance is also
placed on Sutherland and Company v. Hannevig Brothers Limited(2). That was a
case under the English Arbitration Act of 1889 which provided that an
arbitrator could correct in an award any clerical mistake or error from any 106
accidental slip or omission and had thus varied the rule laid down in Mordue's
case(1). It was however held in that case that the correction made by the
arbitrator was not justified under the Arbitration Act. These cases in our
opinion have not much bearing on the question before us. It is true that
generally speaking, an arbitrator is functus officio after he has made the
award; but this only means that no power is left in the arbitrator to make any
change of substance in the award that he had made (except in certain
circumstances which have been provided in the law). What we have to see however
are the scheme and the provisions of the Arbitration Act, No. X of 1940
(hereinafter called the Act), which govern the proceedings in arbitration in
this case. These provisions are to be found in Chap. II of the Act which deal
with "arbitration without intervention of Court." Sections 3 to 7
deal with various aspects of arbitration agreements with which we are not
concerned in the present case. Sections, 8, 11 and 12 deal with the power of a
court to appoint or remove arbitrators or umpire. Sections 9 and 10 deal with
the right of a party to appoint a new arbitrator or sole arbitrator and also
with the appointment of an umpire. Section 13 deals with the power of the
arbitrator and s. 14 provides for the signing of the award and giving notice in
writing to the parties of the making and signing of the award and filing the
same in court. Section 15 gives power to the court to modify the award in the
circumstances mentioned therein. Section 16 gives power to the court to remit
the award for reconsideration under certain circumstances.
Section 17 provides for delivery of judgment
in terms of the award where the court sees no cause to remit the award or to
set it aside. Section 18 provides for making interim orders. Section 30 which
is in Chap. V sets out the grounds on which an award may be set aside.
107 Finally, we come to s. 19, which is the
section on the interpretation of which the decision of this case depends.
Section 19 reads as follows:- "Where an award has become void under
sub-section(3) of section 16 or has been set aside, the court may by order
supersede the reference and shall thereupon order that the arbitration
agreement shall cease to have effect with respect to the difference
referred." Before we consider what s. 19; provides we might advert to two
matters. In the first place, it is not disputed before us that the English
Arbitration Act does not contain a provision similar to s. 19; the consequence
of this is that the decisions on English Courts may not be of much assistance
on this particular aspect of the matter before us. Secondly, there was a
parallel provision in para. 15(2) of Sch. II of the Code of Civil Procedure
before 1940 as to the order to be passed by the court when setting aside an
award, which was in these terms:- "(2) Where an award becomes void or is
set aside under clause (1), the court shall make an order superseding the
arbitration and in such case shall proceed with the suit." It will be seen
from this provision that when a court set aside an award under Sch. II the
reference had to be superseded also, and the court was enjoined to proceed with
the suit, the provision being contained in that part of Sch. II which dealt
with arbitration in suits. But the provision also applied to cases covered by
para.
17 read with para. 19 and also by implication
to arbitrations outside court under para 21. But s. 19 of the Act has clearly
made a departure from the parallel provision contained in Sch. II, para.
15 (2) and we have therefore to see what is
the extent of the departure made by it.
It is clear from s. 19 that there are three
matters which have to be borne in mind in arbitration 108 proceedings. There is
first the arbitration agreement. Next comes the reference to arbitration and
lastly the award. Section 19 provides inter alia that where an award has been
set aside, the court may by order supersede the reference and shall thereupon
order that the arbitration agreement shall cease to have effect with respect to
the difference referred. The section therefore leaves it to the discretion of
the court when it decides to set aside an award, whether to supersede the
reference or not. It may not supersede the reference at all in which case
though the award may be set aside the reference will continue. But if it
supersedes the reference it has also inconsequence to order that the
arbitration agreement on the basis of which the reference was made would cease
to have effect with respect to the difference referred. It is only therefore
when the court orders supersession of the reference that the consequence
follows that the arbitration agreement ceases to have effect with respect to
the subject matter of the reference. The intention of the legislature in making
this change in the consequences to follow the setting aside of an award is
clear in as much as the provision recognises that there may be different kinds
of arbitration agreements, some of which might be exhausted by the reference
already made and the award following thereon which has been set aside while
others may be of a more comprehensive nature and may contemplate continuation
of the reference relating to the same dispute or successive references relating
to different disputes covered by the arbitration agreement. The legislature has
therefore given discretion to the court under s. 19 to decide when it sets
aside an award what the consequences of its order setting aside the award will
be. If the court finds that the arbitration agreement is of the kind which
exhausts itself after the first reference is made or if it finds on account of
the reasons 109 which have impelled it to set aside the award that there should
be no further reference of the dispute to arbitration, the court has the power
to supersede the reference and thereupon order that the arbitration agreement
shall cease to have effect with respect to the difference referred. On the
other hand if the court finds that the arbitration agreement is of a general
nature and contemplates continuation of the reference with respect to the same
dispute or successive references with respect to different disputes arising
under the terms of the arbitration agreement it may not supersedes the
reference with the result that the reference as well as the arbitration
agreement on which it is based survives. In such a case there can in our
opinion be no doubt that there the reference and the arbitration agreement
survive the same dispute may go before the arbitrators again provided there is
machinery provided in the arbitration agreement which makes this possible. It
will thus be seen that the discretion vested in the court under s. 19 depends
upon the nature of the arbitration agreement in particular cases and it is on a
consideration of those terms that the court may decide in one case to supersede
the reference and order the arbitration agreement to cease to have effect after
taking into account the reasons which have impelled it to set aside the award
and another not to set aside the reference with the result that the reference
and the arbitration agreement subsist; and if the arbitration agreement
provides for machinery to have further arbitration on the same dispute or other
disputes arising under the arbitration agreement it is permissible to have
further arbitration on the same dispute or other disputes. The same discretion
is given to the court with respect to arbitration under Chap. III of the Act
dealing with "arbitration with intervention of a court where there is no
suit pending," as s. 20(5) provides that after the arbitration agreement
has been ordered to be filed, the arbitration shall proceed 110 in accordance
with, and shall be governed by, the other provisions of the Act so far as they
can be made applicable. Further we find that the same discretion has been given
to the court in the matter of arbitration in suits provided under Chap. IV, was
s. 25 provides that "the provisions of the others Chapters shall, so far
as they can be made applicable, apply to arbitration under this Chapter."
The proviso to s. 25 gives discretion to the court in any of the circumstances
mentioned in ss. 8, 10, 11 and 12, instead of filling up the vacancies or
making the appointments, to make an order superseding the arbitration and
proceed with the suit, and where the court supersedes the arbitration under s.
19 it shall proceed with the suit. The scheme of the Act therefore is whether
the arbitration is under Chap. II, Chap. III or Chap. IV, to give discretion to
the court to decide whether to supersede the reference or not. Where it decides
to supersede the reference it has to order that the arbitration agreement shall
cease to have effect with respect to the difference referred;
but where it decides not to supersede the
reference and the reference and the arbitration agreement subsist and if there
is machinery provided in the arbitration agreement for making a further
reference or for continuing the same reference, further arbitration can take
place. The contention therefore urged on behalf of the appellant that once the
award is set aside the arbitrator becomes functus officio and consequently
there can be no further reference with respect to the dispute decided by the
award which is set aside, must fail in view of the specific provisions of s. 19
of the Act.
We have already said that generally speaking,
the arbitrator becomes functus officio after he has given the award; but that
does not in our opinion mean that in no circumstances can there be further
arbitration proceedings where an award 111 is set aside or that the same arbitrator
can never have anything to do with the award with respect to the same dispute.
Section 13 (d), for example, gives power to the arbitrator to correct in an
award any clerical mistake or error arising from any accidental slip or
omission. Further s. 16 gives power to the court; to remit the award to the
arbitrator for reconsideration. Therefore, when it is said that the arbitrator
is generally functus officio after he has made the award, it only means that he
cannot change that award in any matter of substance himself. But that does not
take away the court's power to remit the award for reconsideration under s. 16
or to refuse to supersede the reference even though the award is set aside
leaving it to the parties to take such further action under the arbitration
agreement for further arbitration if it is possible so to do under the terms of
a particular arbitration agreement. We are therefore of opinion that whatever
may be the position in the absence of a provision similar to s. 19 of the Act
there can be no doubt that s. 19 gives power to the court not to supersede the
reference and so leave the arbitration agreement effective even when it sets
aside award and thereupon, it will depend upon the terms of the arbitration
agreement whether arbitration proceedings can go on with respect to the same
dispute or with respect to some other disputes arising under the arbitration
agreement.
This was the view taken in the Barangore Jute
Factory case(1). Similar view has been taken in Rallis India Ltd. v. B.V. Manickam
Chetti & Co.(2) and in Firm Gulab Rai Girdhari Lal v. Firm, Bansi Lal
Hansraj(3). We think that this view is correct.
It is not in dispute that the reference was
not superseded in this case when the award was set aside in May 1953. It will
therefore depend upon 112 the terms of the arbitration agreement in this case
whether it was possible to have further arbitration with respect to the same
dispute. We have already set out the term in the contract relating to
arbitration and it is clear that term is very wide in its amplitude and
contemplates reference of disputes as and when they arise between the parties
to the Chamber. Further as the Chamber is constituted the arbitrator in this
term of the contract and as the Chamber consists of a large number of members
and has its own rules for constituting arbitral tribunals. It is in our opinion
quite possible on the terms of such an arbitration agreement to constitute
another tribunal to decide the same dispute, where the reference remains
pending and has not been set aside under s. 19, provided there is machinery for
appointing different persons as arbitrators under the rules of the Chamber. It
is however urged that this is a second reference of the same dispute and this
at any rate is not contemplated by the term relating to arbitration in the
contract. We are not impressed by this argument. Stress in this connection has
been laid on the letter of September 7, 1953, in which the respondent said that
it begged to refer the matter for arbitration de novo. Those words do not in
our opinion show that a second reference was being made of the dispute. The
letter begins by saying that the Chamber was aware that the previous award had
been set aside. It was in those circumstances that the respondent told the
Chamber that it begged to refer the matter for arbitration de novo. In the
context this can only mean that the respondent was asking the Chamber to take
up the reference again as the reference had not been superseded and arrange to
continue the arbitration proceedings further. The only question therefore 113
that will arise is whether under the rules of the Chamber it was possible to
constitute another tribunal to consider this dispute again. If that is
possible, we fail to see why the arbitration proceedings should not go on
further as the reference was not superseded in this case, and the arbitration
agreement subsisted.
This brings us to the rules of the Chamber
relating to the appointment of arbitral tribunal.
It is urged on behalf of the appellant that
there is no provision in these rules for appointment of an arbitral tribunal
where an award made by an earlier tribunal is set aside say, for misconduct.
If this contention is a justified it will
certainly not be possible to appoint another arbitral tribunal to decide the
reference after the award made on it by the earlier tribunal set aside.
Reliance however is placed on behalf of the respondent on rr. V, VII and X made
by the Chamber for the appointment of arbitral tribunals. It appears that no
reliance was placed on r. V in the High Court; reliance however was placed on
rr. VII and X in the High Court. The High Court held that r. VII justified the
appointment of the tribunal in the present case, though it was of the view that
r. X would not justify it. The appellant on the other hand contends that none
of the three rules authorises the appointment of a fresh tribunal after an
award is set aside and therefore there is no machinery under the terms of the
arbitration agreement by which the arbitration can be further carried on, it
being not disputed that the earlier tribunal whose award had been set aside on
account of misconduct could not be again appointed.
Rule V(1) provides for an application for
arbitration. Rule V(2) lays down that "on receipt of such application the
Registrar shall constitute a court for the adjudication of the dispute."
It is urged on 114 behalf of the respondents that a fresh tribunal could be
constituted under r. V (2) after the award of the earlier tribunal had been set
aside, as the Registrar is authorised to constitute a court on receipt of an
application by the Chamber under r. V (1). We are of opinion that this
contention is not well founded. Rule V(2) applies to the first appointment
after the receipt of the application and that appointment was made in this case
and the award of the tribunal appointed under r. V (2) was set aside. Rule V
(2) does not in our opinion contemplate a second appointment after the award of
the court appointed under it on receipt of the application has been set aside.
The respondent cannot sustain the appointment of a fresh tribunal under r.
V(2).
Rule VII has been pressed into service by the
High Court in this connection and it has been held on the basis of the
Barangore Jute Factory's case (1) that r. VII justified the appointment of a
fresh tribunal in a case where an award made by the earlier tribunal is set
aside. In that case the High Court was conscious that it was stretching the
rule in applying it to the situation where an award is set aside. Rule VII says
that "if the Court have allowed the time or extended time to expire
without making any award, and without having signified to the Registrar that
they cannot agree, the Registrar shall constitute in manner aforesaid another
Court which shall proceed with the arbitration and shall be at liberty to act
upon the record or the proceedings as then existing and on the evidence, if
any, then taken in the arbitration or to commence the arbitration de
novo." Rule XXV makes provision that the award shall be made within four
months or within such extended time as may be agreed to between the parties to
the reference. Rule VII obviously refers to a case where the time or the
extended time 115 allowed to the tribunal has been allowed to expire; it cannot
refer to a case where the tribunal has made the award within the time fixed but
later that award is set aside by court. It would in our opinion be stretching
the language of r. VII too far to make it applicable to a case like the
present. We cannot therefore agree with the High Court that r. VII justified
the appointment of a fresh tribunal in the present case.
This brings us to r. X. The High Court
thought that this rule could not apply. Rule X is in these terms:- "If any
appointed arbitrator or umpire neglects or refuses to act or dies or become
incapable of acting the Registrar shall substitute and appoint a new arbitrator
or umpire as the case may be in manner aforesaid and the Court so reconstituted
shall proceed with the arbitration with liberty to act on the record of the
proceedings as then existing and on the evidence, if any then taken in the
arbitration, or to commence the proceedings de novo." We are of opinion
that it was open to the Registrar under this rule to appoint a fresh tribunal
because the earlier tribunal had become incapable of acting in view of the fact
that its award had been set aside on the ground of misconduct. It has been
urged on behalf of the appellant that the words "becomes incapable of
acting" apply only to physical inability to act and in particular stress
is laid on the collocation of words where these words follow the word
"dies". We are however of opinion that these words cannot take their
colour from the word "dies" and are a separate category by themselves
and must be interpreted on their own. Now there is no doubt that generally
speaking an arbitrator may become incapable of acting because of some physical
cause, for example, he may fell ill or may go mad and so 116 on. But we do not
think that these words only refer to physical incapacity; in our opinion, they
refer to any kind of incapacity, which may supervene after the appointment of
the arbitrators, even to an incapacity from before but which was not known to
the parties, or in this case to the Chamber before they are appointed. We may
in this connection refer to the opinion of Russel ("Russel on
Arbitration", 15th Edn, p.7), where dealing with similar words in s. 10(b)
of the English Arbitration Act of 1950, it has been said as follows:- "It
would appear that the word 'incapable' in section 10(b) must refer to some
incapacity arising after the date of the appointment, or not known to the
parties at that date." Clearly therefore, the words "becomes
incapable of acting" do not merely refer to physical incapacity but to any
kind of incapacity which arises after the appointment or which was there before
the appointment but was not known to the parties or to the Chamber in this
case. Take, for example, the case of persons appointed by the Chamber to decide
a dispute; after the appointment, one arbitratior acquires an interest in the
subject-matter of the dispute. Obviously such a person must be held to have
become incapable of acting even though there is no question of any physical
incapacity on his part. We are therefore of opinion that the words
"becomes incapable of acting" in r. X are of wide amplitude and do
not refer to cases only of physical incapacity but to any kind of incapacity
arising after the appointment or even before the appointment provided it was
not known to the parties, or to the Chamber in the present case. We cannot
therefore agree with the High Court that r. X will not apply to the present
case.
What has happened in this case is that the
previous tribunal made an award. That award has 117 been set aside on account
of misconduct. In the circumstances we are of opinion that the previous
tribunal has become incapable of acting as arbitrator to decide this dispute
because of its misconduct. Further as the reference has not been superseded and
the arbitration agreement subsists, it was in our opinion open to the Chamber,
on the request of the respondent, to appoint another arbitral tribunal under r.
X. Therefore, as there is a machinery by which fresh arbitrators can be
appointed according to the terms of the arbitration agreement read with the
rules of the Chamber and as the reference has not been superseded, the
appointment of a fresh tribunal and the carrying on of the arbitration further
were within the terms of the arbitration agreement.
No other point has been urged on behalf of
the appellant in this appeal to challenge the correctness of the decision of
the High Court.
Therefore, appeal No. 309 must fail.
Turning now to appeal No. 525, it is enough
to say that it is similar to appeal No. 309 in all respects except one. The
difference is that in this case the appellant objected to the appointment of a
fresh tribunal and an application was made under s. 33 of the Act paying for
the relief that no arbitration agreement existed after the earlier award had
been set aside and therefore there could be no further arbitration. For reasons
which we have already given this contention must fail, for it is not in dispute
that this appeal also when the earlier award was set aside there was no
supersession of the reference and the arbitration agreement is in the same
terms as in the other appeal. What happened in this case was that the learned
Single Judge allowed the application and revoked the authority of the Chamber
to arbitrate. There was then an appeal by the present respondent 118 which was
allowed on the basis of the Barangore Jute Factory case (1). Thereupon the
present appeal has been brought to this Court by special leave. It has been
contended on behalf of the appellant that the order under s. 33 was not
appealable in view of the provisions of s. 39 of the Act and therefore the High
Court had no jurisdiction in appeal to set aside the order of the learned
Single Judge. This point as to jurisdiction was not taken before the appeal
court nor has it been taken in the special leave petition to this Court or in
the statement of case. It seems that the appeal was entertained in the High
Court on the view that an appeal lay under the Letters Patent from an order of
a Single Judge. Even if we were to entertain this argument the respondent will
be entitled to ask for special leave to appeal against the order of the Single
Judge and we will be justified having regard to the course of events and the
view expressed in the companion appeal in granting leave after condoning the
delay and in passing the same order which has been passed by the High Court in
appeal. Technical requirements of procedure may of course be fulfilled by
following the course suggested but no useful purpose will be served thereby.
For reasons which we have already given the order of the appeal court is right.
There is no reason to interfere with it and this appeal will also have to be
dismissed.
We therefore dismiss the appeals with costs-
one set of hearing costs.
Appeal dismissed.
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