M/S.
I.T.I. Ltd. Vs. M/Nse.Tswioermkenlstd Public Communications [2002] Insc 275 (20 May 2002)
N. Santosh
Hegde Santosh Hegde, J.
Leave
granted.
This
appeal is filed directly to this Court against the judgment and order of the
10th Addlitional City Civil Judge, Bangalore made in Misc. Appeal No.6 of 2002 dated 18th April, 2002.
The
appeal before City Civil Judge was against an interim order made by the
arbitral tribunal and that appeal was filed under Section 37(2)(b) of the
Arbitration and Conciliation Act, 1996 (the 'Act'). The learned Civil Judge
dismissed the said appeal.
The
principal question that arises for our consideration is whether a revision
petition under Section 115 of the Civil Procedure Code (the 'Code') lies to the
High Court as against an order made by a civil court in an appeal preferred
under Section 37 of the Act. If so, whether on the facts and circumstances of
this case, such a remedy by way of revision is an alternate and efficacious
remedy or not.
Mr. K.
Parasaran, learned senior counsel appearing for the appellants submitted that
the right of second appeal is specifically taken away under Section 37(2) of
the Act.
Therefore,
by implication it should be held that even a revision is not maintainable under
Section 115 of the Act. He pointed out that under Section 5 of the Act, there
is a bar against judicial intervention by any judicial authority unless the
same is specifically provided under Part I of the Act. It is his contention
that since a revision is not specifically provided for and the Code not being
made applicable to proceedings arising under the Act, a revision to the High
Court does not lie. Therefore, he contends that the appellant's only remedy is
to approach this Court by way of this appeal. He sought to take support from a
decision of the Privy Council in the case of R.M.A.R.A. Adaikappa Chettiar
& Anr. vs. R.Chandrasekhara Thevar (AIR 1948 PC 12) and two decisions of
this Court in the case of Shankar Ramchandra Abhyankar vs. Krishnaji Dattatreya
Bapat (1969 (2) SCC 74) and M/s. Central Coal Fields Ltd. & Anr. vs. M/s.Jaiswal
Coal Co. & Ors. (1980 Supp. SCC 471).
Mr. P.Chidambaram,
learned counsel appearing for the respondent in reply contended that under
Section 37 of the Act an appeal is provided to a civil court as defined under
Section 2(e) of the Act. He pointed out that though there is no specific
reference as to the application of the Code to the proceedings arising under
Section 37, there is no express exclusion of the Code either. Therefore, in the
absence of any such express exclusion, the appeal being provided to a civil
court, the Code should apply to the proceedings before the civil court. He also
argues that this question of availability of an alternate remedy by way of
revision to the High Court is no more res integra because the same is concluded
by a recent order of this Court though rendered at SLP stage in the case of Nirma
Ltd. v. M/s. Lurgi Lentjes Energietechnik GMBH & Anr. made in SLP No.22106
of 2001 dated 14.1.2002.
Mr. K.Parasaran's
reliance on the case of Adaikappa Chettiar (supra) is misplaced because the
judgment does not support the case of the appellant, what was held by the Privy
Council in that case was when an appeal lies under Section 96 of the Code of
Civil Procedure the High Court cannot entertain an application for revision
under Section 115 of the Code because the High Court has no jurisdiction to
entertain a revision where an appeal lies. In the said case, the Privy Council
overruling an earlier Full Bench judgment of the Madras High Court held that an
appeal against an order made by the civil court under the Madras
Agriculturists' Relief Act, 1938 is maintainable, therefore, the High Court
could not have entertained a revision under Section 115 of the Act which
finding, in our opinion, does not help the appellant in the present case. Mr. Parasaran
has also relied on a judgment of this Court in Shankar Ramchandra Abhyankar
(supra) wherein this Court held that a revision in effect is in the nature of
an appeal.
Mr. Parasaran
relying on this judgment argued that if revision is in effect an appeal then
the Act having prohibited a second appeal, any proceeding which is in the
nature of an appeal will also be barred. We think this observation of this
Court in the case of Abhyankar (supra) also does not apply to the facts of the
present appeal before us. In the case of Abhyankar, this Court noticed that the
trial court had granted a decree for possession of certain rooms in the
petition scheduled premises which order of eviction was confirmed by the appellate
court on the ground of equity. Against the said judgment of the appellate
court, the aggrieved party had preferred a revision petition before the High
Court which came to be dismissed by a Single Judge.
Having
suffered an adverse order in the revision the aggrieved party then filed a writ
petition under Articles 226 and 227 of the Constitution of India challenging
the very same appellate order which was confirmed in revision. On those facts,
this Court held that a writ petition ought not to have been entertained by the
High Court when the party had already chosen the remedy of filing a revision
before the High Court under Section 115 of the Code. In these circumstances,
this Court held that if there are two modes for invoking jurisdiction of the High
Court and one of those modes having been chosen and exhausted, it would not be
proper for the High Court to entertain another proceeding in respect of the
same impugned order under Articles 226 and 227. It is while discussing the
propriety of entertaining a writ petition this Court had held that the
aggrieved party had already exhausted a remedy by way of revision which is in
the nature of an appeal. We do not think the observations made by this Court in
the case of Abhyankar (supra) can be usefully applied to the facts of this
case.
The
question still remains as to whether when a second appeal is statutorily barred
under the Act and when the Code is not specifically made applicable, can it be
said that a right of revision before the High Court would still be available to
an aggrieved party ? As pointed out by Mr. Chidambaram, this Court in the case
of Nirma Ltd. (supra) while dismissing an SLP by a reasoned judgment has held :
"In our opinion, an efficacious alternate remedy is available to the
petitioner by way of filing a revision in the High Court under Section 115 of
the Code of Civil Procedure. Merely because a second appeal against an
appellate order is barred by the provisions of sub- section (3) of Section 37,
the remedy of revision does not cease to be available to the petitioner, for
the City Civil Court deciding an appeal under sub-section (2) of Section 37
remains a court subordinate to the High Court within the meaning of Section 115
of the C.P.C." But Mr. Parasaran contended that the said order is based on
an earlier reported judgment of this Court in the case of Shyam Sunder Agarwal
& Co. vs. Union of India (1996 (2) SCC 132). According to Mr. Parasaran,
the Court in the case of Nirma Ltd. (supra) has erroneously founded its
conclusion on the said judgment in Shyam Sunder Agarwal's case. Learned counsel
argued that the case of Shyam Sunder Agarwal (supra) arose under the
Arbitration Act, 1940 which Act had made the provisions of the Code
specifically applicable to proceedings arising under the said Act in the civil
court whereas in the present Act such provision making the Code applicable is
not found. Therefore, there is a substantial difference in law between the
cases of Shyam Sunder Agarwal (supra) and Nirma Ltd. (supra). Therefore, the
order of this Court in Nirma Ltd. (supra) is not a good law, hence, requires
reconsideration.
We do
not agree with this submission of the learned counsel. It is true in the
present Act application of the Code is not specifically provided for but what
is to be noted is : Is there an express prohibition against the application of
the Code to a proceeding arising out of the Act before a civil court ? We find
no such specific exclusion of the Code in the present Act. When there is no
express exclusion, we cannot by inference hold that the Code is not applicable.
It has
been held by this Court in more than one case that the jurisdiction of the
civil court to which a right to decide a lis between the parties has been
conferred can only be taken by a statute in specific terms and such exclusion
of right cannot be easily inferred because there is always a strong presumption
that the civil courts have the jurisdiction to decide all questions of civil
nature, therefore, if at all there has to be an inference the same should be in
favour of the jurisdiction of the court rather than the exclusion of such
jurisdiction and there being no such exclusion of the Code in specific terms
except to the extent stated in Section 37(2), we cannot draw an inference that
merely because the Act has not provided the CPC to be applicable, by inference
it should be held that the Code is inapplicable. This general principle apart,
this issue is now settled by the judgment of a 3-Judge Bench of this Court in
the case of Bhatia International vs. Bulk Trading S.A. & Anr. in
C.A.No.6527/2001 decided on 13.3.2002 wherein while dealing with a similar
argument arising out of the present Act, this Court held : "While
examining a particular provision of a statute to find out whether the
jurisdiction of a Court is ousted or not, the principle of universal
application is that ordinarily the jurisdiction may not be ousted unless the
very statutory provision explicitly indicates or even by inferential conclusion
the Court arrives at the same when such a conclusion is the only
conclusion." In the said view of the matter, we are in respectful
agreement with the view expressed by this Court in the case of Nirma Ltd.
(supra) and reject the argument of Mr. Parasaran on this question.
We
also do not find much force in the argument of learned counsel for the
appellant based on Section 5 of the Act.
It is
to be noted that it is under this Part, namely, Part I of the Act that Section
37(1) of the Act is found, which provides for an appeal to a civil court. The
term 'Court' referred to in the said provision is defined under Section 2(e) of
the Act. From the said definition, it is clear that the appeal is not to any
designated person but to a civil court. In such a situation, the proceedings
before such court will have to be controlled by the provisions of the Code,
therefore, the remedy by way of a revision under Section 115 of the Code will
not amount to a judicial intervention not provided for by Part I of the Act. To
put it in other words, when the Act under Section 37 provided for an appeal to
the civil court and the application of Code not having been expressly barred,
the revisional jurisdiction of the High Court gets attracted. If that be so,
the bar under Section 5 will not be attracted because conferment of appellate
power on the civil court in Part I of the Act attracts the provisions of the
Code also.
Mr. Parasaran
then contended that since it is an accepted fact that this Court also has the
jurisdiction to entertain an appeal, this appeal should not be rejected on the
sole ground that there is a remedy available by way of a revision before the
High Court. In support of this contention, he relied on the judgment of this
Court in the case of Ram Shankar (supra) wherein it is noticed that this Court
had entertained an appeal directly against a judgment and decree of a trial
court bypassing the High Court. It is true that the power of this Court to
entertain an appeal directly is not taken away merely because another remedy is
available but then the question is, should this Court encourage litigants to
indulge in hop, skip and jump to reach this Court either for the reason that
the remedy from this Court would be quick or more efficacious ? The answer, in
our opinion, should be no. The judgment of this Court in M/s. Central Coal
Fields (supra) does not, in any way, take a contra view from what is expressed
by us hereinabove. In that case, because of the peculiar fact-situation, this
Court entertained an appeal without the party first appreciating the High Court
but then it should be noticed that this Court did not entertain the appeal to
decide the same itself, it did so to refer the matter to arbitration
proceedings and when an award made by the learned arbitrator was acceptable to
all parties then the same was made a rule of this Court. Such is not the
situation in the present case.
Therefore,
we do not think the appellant can take much support from the above case of this
Court.
Learned
counsel for the appellant next contended that assuming that the remedy of
revision is available even then the same is not an efficacious alternate remedy
because this appeal involves a very sensitive issue pertaining to the security
of the country and which, according to the appellant, requires extreme urgency
in deciding the same and the said requirement will not be possible if the
appellant has to approach the High Court. We are not impressed with this
argument addressed on behalf of the appellant because we notice from the record
that the arbitration proceedings have started as far back as in the year 2001
and the parties instead of getting the arbitration concluded, have been
litigating on interim applications till date. If indeed urgency was there then
the party which feels the necessity of quick disposal would have concentrated
more on completing the arbitral proceedings rather than spending its time in
court inviting orders of the High Court on interlocutory applications.
Therefore,
we are of the opinion that there is no such urgency which requires us to treat
this case differently. In regard to the sensitivity of the matter and the
national security involved, we do not think that these factors will, in any
manner, be compromised by approaching the High Court; more so in the background
of the fact that the parties had already approached the High Court nearly three
times without raising any objection as to its jurisdiction or in view of its
apprehension as to the security of the State. If the facts involving such
sensitive matter could be handled by the High Court three times earlier, we think
the appellant can very well trust the High Court to protect such interest of
the country in future proceedings also.
Therefore,
this argument of sensitivity or urgency, in our opinion, will not improve the
appellant's case so as to make an exception or permit the appellant to take a
short-cut to this Court. Therefore, the above argument of the appellant should
also be rejected.
For
the aforesaid reasons, while holding that this Court in an appropriate case
would entertain an appeal directly against the judgment in first appeal, we
hold that the High Court also has the jurisdiction to entertain a revision
petition, therefore, in the facts and circumstances of this case, we direct the
appellant to first approach the High Court. For the said reasons, this appeal
fails and the same is hereby dismissed. We, however, make it clear that should
the appellant present a revision petition within 30 days from today, the same
will be entertained by the High Court without going into the question of
limitation, if any.
J.
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