Section 37 Of The Arbitration & Conciliation Act 1996 R/W Section 13 Of The Commercial Courts Act 2015 Excludes The Applicability Of Clause 15 Of Letters Patent: Calcutta HC

The Division Bench of Justice I.P. Mukerji and Justice Aniruddha Roy relied on the decision of the Apex Court in Union of India v. Simplex Infrastructures, (2017) 14 SCC 225, to hold that the Arbitration Act is a self-contained code and no appeal lies against an order which does not fall within the four corners of S. 37 of the Arbitration Act.

The Appellant filed a latent patent appeal against an order of the Single Judge in Section 36(2) & (3) application directing the appellant to furnish security for the purpose of staying the award.

The counsel for the appellant argued that an appeal under Clause 15 of the Letter Patent is maintainable against an order made under S. 36 of the Arbitration Act. The Court observed that the appeal provided under the Letters Patent is a constitutional power of the High Court which could only be avoided in cases where there is an express exclusion under the law.

The Court held that an order passed under Sections 36(2) and (3) of the Arbitration Act is not an order contemplated under Section 37 of the Arbitration Act r/w S. 13 of the Commercial Courts Act. The Court also held that an order which is not appealable under S. 37 of the Arbitration Act, is also not appealable under S. 13 of the Commercial Courts Act and that S. 13 expressly excludes the applicability of Clause 15 of Letters Patent to orders which are not appealable under S. 13, therefore, there is an express exclusion against the exercise of power under the provisions of Letters Patent to hear appeals against an order not appealable under S. 37 of the Arbitration Act.

The Court relied on its decision in Damodar Valley Corpn. v. Reliance Industries, MANU/WB/0903/2021, to clarify that just because an application is styled as having been made under Section 36, it does not follow that all orders passed thereunder must have been made strictly within the four corners of Section 36 and when an order is passed by a Court on an application made under S. 36 of the Act but the stage of S. 36 has not yet arrived, the Court would be exercising power under S. 9 of the Act and that order would be appealable.

However, in the present case, the court was satisfied that the impugned order was only passed by the Court exercising jurisdiction under S. 36 of the Act. Accordingly, the Court dismissed the appeal.

Case Title: APL Metals Ltd. v. Mountview Tracom LLP & Ors, LPA 1 of 2022

Case Citation: 2022 LiveLaw (Cal) 113

Date: 05.04.2022

Counsel for the Appellant: Mr. Ahin Choudhury, Senior Advocate, Mr. Gopal Pahari and Ms. Mandeep Kaur.

Counsel for the Respondents: Mr. Abhrajit Mitra, Senior Advocate, Mr. Jishnu Choudhary, Ms. Radhika Singh and Mr. Chayan Gupta.