KANDLA EXPORT CORPORATION & ANR.versusM/S OCI CORPORATION & ANR.

                         [2018] 1 S.C.R. 915                            915


          KANDLA EXPORT CORPORATION & ANR.                              A

                                 v.

                M/S OCI CORPORATION & ANR.

               (Civil Appeal Nos. 1661-1663 of 2018)                    B

                       FEBRUARY 07, 2018

          [R. F. NARIMAN AND NAVIN SINHA, JJ.]

      Commercial Courts, Commercial Division and Commercial             C
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) –
                                                                        D
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 self-
contained code on matters of arbitration – s.13(1) is a general
provision vis-a-vis arbitration – Applying the doctrine of harmonious   E
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
                                                                        F
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                                 G
      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*
                                                                        H
                                 915
916            SUPREME COURT REPORTS                      [2018] 1 S.C.R.


A     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
B
      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
C     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
D     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
E     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
F     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
G     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
H
    KANDLA EXPORT CORPORATION & ANR. v. M/S OCI                         917
               CORPORATION & ANR.

appeals from such orders”. Section 50 properly read would,              A
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       B
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            C
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;               D
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          E
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       F
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        G
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   H
918            SUPREME COURT REPORTS                      [2018] 1 S.C.R.


A     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
B           (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.
C
            CIT v. Indo-Mercantile Bank Ltd. [1959] 2 Suppl. SCR
            256 ; Union of India v. Mohindra Supply Company
            [1962] 3 SCR 497– referred to.

                             Case Law Reference
D
      [2011] 11 SCR 1                relied on               Para 8

      [1959] 2 Suppl. SCR 256        referred to             Para 14

      [1962] 3 SCR 497               referred to             Para 20
E
      [2008] 3 SCR 309               relied on               Para 24

      [2016] 7 SCR 976               relied on               Para 25

            CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1661-
F     1663 of 2018.

            From the Judgment and Order dated 28.09.2017 of the High Court
      of Gujarat at Ahmedabad in First Appeal Nos. 3096, 3097 and 3098 of
      2017.
G           V. Giri, Sr. Adv, Mahesh Agarwal, Archit Jani, Kirti Kumar
      Thakkar, Rishabh Parikh, Nishant Rao, Rajesh Kumar, E. C. Agrawala,
      Advs for the Appellants.

           Tejas Karia, Ms. Ananya Aggarwal, Ms. Surabhi Lal, Ravinder
H     Nijhawan, S. S. Shroff, Advs for the Respondents.
    KANDLA EXPORT CORPORATION & ANR. v. M/S OCI                               919
               CORPORATION & ANR.

      The Judgment of the Court was delivered by                              A
      R. F. NARIMAN, J. 1. Leave granted.
      2. The present appeals raise an important question as to whether
an appeal, not maintainable under Section 50 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as “the Arbitration Act”),
is nonetheless maintainable under Section 13(1) of the Commercial             B
Courts, Commercial Division and Commercial Appellate Division of High
Courts Act, 2015 (hereinafter referred to as “the Commercial Courts
Act”).
       3. The brief facts necessary to decide the aforesaid issue are as
follows. On 28th April, 2014, an arbitration award was passed pursuant        C
to Arbitration Rule No.125 of the Grain and Feed Trade Association
(GAFTA) directing the Appellants, who were the sellers, to pay the
Respondents, who were the buyers, a sum of US$ 846,750 together
with compound interest at the rate of 4% calculated at quarterly rests.
In appeal, by an order dated 16th April, 2015, the Appellate Tribunal
directed the appellants to pay a sum of US$ 815,000 together with             D
compound interest at the rate of 4% calculated at quarterly rests.
       4. Being aggrieved by the Appellate Award, the Appellants filed
an appeal before the Queen’s Bench. However, the said appeal came
to be rejected on 14th July, 2015, on the ground that the award passed by
the Appellate Tribunal was not obviously wrong. Against the aforesaid         E
judgment, the Appellants filed an appeal before the Queen’s Bench
Division, Commercial Court, which was rejected on 15th September, 2015.
The Appellants, undeterred, filed yet another appeal before the Court of
Appeal, Civil Division, in U.K. The Court of Appeal refused to grant
leave to appeal on the ground that the award was not obviously wrong.         F
       5. Meanwhile, an Execution Petition, being E.P. No.167 of 2015,
was filed under Section 48 of the Arbitration Act on 29th June, 2015 by
the Respondents before the District Court, Gandhidham-Kutch. On 7th
March, 2016, the Appellants filed their objections to the said petition. On
12th September, 2016, the Respondents preferred an application before
                                                                              G
the High Court of Gujarat, under Section 15(5) of the Commercial Courts
Act, for an appropriate order to transfer the execution petition to the
High Court. By an order dated 11th November, 2016, the High Court
transferred the aforesaid execution petition to the Commercial Division
of the High Court of Gujarat, and a Special Leave Petition against the
said order was dismissed by this Court on 3rd March, 2017.                    H
920            SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A            6. On 8th August, 2017, the High Court of Gujarat dismissed the
      objections that were filed by the Appellants and allowed the execution
      petition filed by the Respondents. Being aggrieved by this judgment, the
      Appellants filed an appeal under the Commercial Courts Act, which
      was dismissed by the impugned judgment dated 28th September, 2017,
      stating that the Commercial Courts Act did not provide any additional
B
      right of appeal which is not otherwise available to the Appellants under
      the provisions of the Arbitration Act. Considering the fact that Section
      50 of the Arbitration Act only provided for an appeal in case a petition to
      enforce a foreign award was rejected, the High Court held, keeping in
      view the legislative policy of the Arbitration Act, (which was to speedily
C     determine matters relating to enforcement of foreign awards) that since
      an appeal did not lie from a judgment enforcing a foreign award under
      the said section, no such appeal would be maintainable under the
      Commercial Courts Act.
             7. Shri V. Giri, learned senior counsel appearing on behalf of the
D     Appellants, has taken us through the Commercial Courts Act in
      painstaking detail. He relied upon Sections 3 to 7 of the said Act and
      then took us to Section 13. According to the learned counsel, Section
      13 provided an appeal to any person aggrieved by the decision of a
      Commercial Division of a High Court, and as Section 50 of the Arbitration
      Act found no place in the proviso to Section 13(1) of the Commercial
E     Courts Act, it is clear that the wide language of Section 13(1) would
      confer a right of appeal, notwithstanding anything contained in Section
      50 of the Arbitration Act. This, according to him, became even clearer
      when read with Section 21, which provides that the provisions of the
      Commercial Courts Act shall have effect notwithstanding anything
F     inconsistent contained in any other law for the time being in force. He
      argued that Section 37 of the Arbitration Act, which is expressly
      mentioned in the proviso to Section 13(1) of the Commercial Courts Act,
      specifically speaks of the enumerated appeals in the said provision,
      together with the expression “and no others”, which expression is
      conspicuous by its absence in Section 50 of the Arbitration Act. He
G     also argued that the language of Section 13(1) of the Commercial Courts
      Act is extremely wide – it embraces “decisions”, “judgments” and/or
      “orders” by the Commercial Division of a High Court, and that this being
      so, the impugned judgment of 8th August, 2017, allowing the execution
      petition filed by the Respondents, would certainly be a “decision” and/or
H     “judgment” which would expressly be covered by the wide terms
    KANDLA EXPORT CORPORATION & ANR. v. M/S OCI                                 921
       CORPORATION & ANR. [R.F. NARIMAN, J.]

contained in Section 13(1) of the Commercial Courts Act. He also relied         A
upon Section 13(2) to state that, after the coming into force of the
Commercial Courts Act, appeals lie only in the manner indicated in the
aforesaid Act and not otherwise than in accordance with the provisions
of the Act. According to the learned counsel, the scheme of the Act
would show that, in all matters over Rs.1 crore, the legislative intent is to
                                                                                B
provide an appeal, given the stakes involved, which will, under Section
14, be expeditiously disposed of within a period of 6 months from the
date of filing of such appeal. Learned counsel also referred us to Section
5 of the Arbitration Act, which contains a non-obstante clause insofar
as Part I of the Arbitration Act is concerned, and stated that the absence
of a similar non-obstante clause, so far as Part II of the Arbitration Act      C
is concerned, is significant. Therefore, this is not even a case where
there are competing non-obstante clauses and, therefore, Section 21 of
the Commercial Courts Act must be given full play. According to him,
Section 49 of the Arbitration Act also makes it clear that the award shall
be deemed to be a decree of the Court that enforces it. This being the
                                                                                D
case, an appeal from such decree is provided by Section 13(1) of the
Commercial Courts Act, which, as has been argued by him, speaks of
“decisions”, “judgments” and “orders”. He relied upon several judgments
of this Court and the High Courts to buttress his submissions.
       8. Shri Tejas Karia, learned counsel appearing on behalf of the
Respondents, on the other hand, relied strongly upon Sections 10 and 11         E
of the Commercial Courts Act. According to the learned counsel, the
Explanation to Section 47 of the Arbitration Act, when read with Section
11 of the Commercial Courts Act, would make it clear that the non-
obstante clause contained in Section 21 of the Commercial Courts Act
has to give way to Section 11, and that since Section 50 of the Arbitration     F
Act impliedly bars appeals against an application allowing execution of a
foreign award, Section 13 would be out of harm’s way, insofar as his
client is concerned. He relied strongly on the judgment of this Court in
Fuerst Day Lawson Limited v. Jindal Exports Limited, (2011) 8
SCC 333, and stated that the Arbitration Act is a self-contained Code on
all matters pertaining to arbitration, which would exclude the applicability    G
of the general law contained in Section 13 of the Commercial Courts
Act. Also, according to him, the object of both the Acts is to speedily
determine matters pertaining to arbitration and/or commercial disputes
and, the providing of an extra appeal by the Commercial Courts Act,
which is impliedly excluded by the Arbitration Act, would militate against      H
922            SUPREME COURT REPORTS                          [2018] 1 S.C.R.


A     the object of both Acts. He also relied upon various other judgments of
      this Court and the High Courts to buttress these submissions. The learned
      counsel further argued that in cases of enforcement of foreign awards
      of an amount below Rs.1 crore, admittedly, no appeal would lie. However,
      merely because the amount contained in the foreign award in question
      was above Rs.1 crore, it does not stand to reason that an extra appeal
B
      would be provided. That is not the intention of the Commercial Courts
      Act. He also exhorted us to dismiss the present appeals, stating that the
      present attempt by the Appellants was one more attempt to delay the
      inevitable, and referred us to the various proceedings in the U.K. as well
      as proceedings in this country to submit that we should dismiss the appeal
C     on this ground alone.
            9. Having heard learned counsel for both parties, it is interesting
      to note that both the Commercial Courts Act as well as the detailed
      Arbitration Amendment Act of 2015, were brought into force on the
      same day, i.e. 23rd October, 2015, as a result of two reports of the Law
D     Commission of India.
            10. The Statement of Objects and Reasons for the Commercial
      Courts Act, inter alia, provides:
            “The proposal to provide for speedy disposal of high value
            commercial disputes has been under consideration of the
E           Government for quite some time. The high value commercial
            disputes involve complex facts and questions of law. Therefore,
            there is a need to provide for an independent mechanism for their
            early resolution. Early resolution of commercial disputes shall
            create a positive image to the investor world about the independent
F           and responsive Indian legal system.
            xxx
            6. It is proposed to introduce the Commercial Courts, Commercial
            Division and Commercial Appellate Division of High Courts Bill,
            2015 to replace the Commercial Courts, Commercial Division and
G           Commercial Appellate Division of High Courts Ordinance, 2015
            which inter alia, provides for the following namely:—
            (i) constitution of the Commercial Courts at District level except
            for the territory over which any High Court is having ordinary
            original civil jurisdiction;
H
    KANDLA EXPORT CORPORATION & ANR. v. M/S OCI                             923
       CORPORATION & ANR. [R.F. NARIMAN, J.]

      (ii) constitution of the Commercial Divisions in those High Courts    A
      which are already exercising ordinary civil jurisdiction and they
      shall have territorial jurisdiction over such areas on which it has
      original jurisdiction;
      (iii) constitution of the Commercial Appellate Division in all the
      High Courts to hear the appeals against the Orders of the             B
      Commercial Courts and the Orders of the Commercial Division
      of the High Court;
      (iv) the minimum pecuniary jurisdiction of such Commercial Courts
      and Commercial Division is proposed as one crore rupees; and
      (v) to amend the Code of Civil Procedure, 1908 as applicable to       C
      the Commercial Courts and Commercial Divisions which shall
      prevail over the existing High Courts Rules and other provisions
      of the Code of Civil Procedure, 1908 so as to improve the
      efficiency and reduce delays in disposal of commercial cases.
       7. The proposed Bill shall accelerate economic growth, improve       D
the international image of the Indian Justice delivery system, and the
faith of the investor world in the legal culture of the nation.”
      11. The relevant provisions of the Commercial Courts Act for the
purpose of deciding these appeals are as follows:
      “2. Definitions. (1) In this Act, unless the context otherwise        E
      requires, _
      (i) “Specified Value”, in relation to a commercial dispute, shall
      mean the value of the subject-matter in respect of a suit as
      determined in accordance with section 12 which shall not be less
      than one crore rupees or such higher value, as may be notified by
                                                                            F
      the Central Government.
      4. Constitution of Commercial Division of High Court. - (1)
      In all High Courts, having ordinary civil jurisdiction, the Chief
      Justice of the High Court may, by order, constitute Commercial
      Division having one or more Benches consisting of a single Judge
      for the purpose of exercising the jurisdiction and powers conferred   G
      on it under this Act.
      (2) The Chief Justice of the High Court shall nominate such Judges
      of the High Court who have experience in dealing with commercial
      disputes to be Judges of the Commercial Division.
                                                                            H
924      SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A     5. Constitution of Commercial Appellate Division. -(1) After
      issuing notification under sub-section (1) of section 3 or order
      under sub-section (1) of section 4, the Chief Justice of the
      concerned High Court shall, by order, constitute Commercial
      Appellate Division having one or more Division Benches for the
      purpose of exercising the jurisdiction and powers conferred on it
B
      by the Act.
      (2) The Chief Justice of the High Court shall nominate such Judges
      of the High Court who have experience in dealing with commercial
      disputes to be Judges of the Commercial Appellate Division.
C     7. Jurisdiction of Commercial Divisions of High Courts. -
      All suits and applications relating to commercial disputes of a
      Specified Value filed in a High Court having ordinary original civil
      jurisdiction shall be heard and disposed of by the Commercial
      Division of that High Court:
D     Provided that all suits and applications relating to commercial
      disputes, stipulated by an Act to lie in a court not inferior to a
      District Court, and filed or pending on the original side of the High
      Court, shall be heard and disposed of by the Commercial Division
      of the High Court:
E
      Provided further that all suits and applications transferred to the
      High Court by virtue of sub-section (4) of section 22 of the Designs
      Act, 2000 or section 104 of the Patents Act, 1970 shall be heard
      and disposed of by the Commercial Division of the High Court in
      all the areas over which the High Court exercises ordinary original
F     civil jurisdiction.
      10. Jurisdiction in respect of arbitration matters.-Where the
      subject-matter of an arbitration is a commercial dispute of a
      Specified Value and––

G     (1) If such arbitration is an international commercial arbitration,
      all applications or appeals arising out of such arbitration under the
      provisions of the Arbitration and Conciliation Act, 1996 that have
      been filed in a High Court, shall be heard and disposed of by the
      Commercial Division where such Commercial Division has been
      constituted in such High Court.
H
KANDLA EXPORT CORPORATION & ANR. v. M/S OCI                                 925
   CORPORATION & ANR. [R.F. NARIMAN, J.]

 (2) If such arbitration is other than an international commercial          A
 arbitration, all applications or appeals arising out of such arbitration
 under the provisions of the Arbitration and Conciliation Act, 1996
 that have been filed on the original side of the High Court, shall be
 heard and disposed of by the Commercial Division where such
 Commercial Division has been constituted in such High Court.
                                                                            B
 (3) If such arbitration is other than an international commercial
 arbitration, all applications or appeals arising out of such arbitration
 under the provisions of the Arbitration and Conciliation Act, 1996
 that would ordinarily lie before any principal civil court of original
 jurisdiction in a district (not being a High Court) shall be filed in,
 and heard and disposed of by the Commercial Court exercising               C
 territorial jurisdiction over such arbitration where such Commercial
 Court has been constituted.
 11. Bar of jurisdiction of Commercial Courts and
 Commercial Divisions. - Notwithstanding anything contained
 in this Act, a Commercial Court or a Commercial Division shall             D
 not entertain or decide any suit, application or proceedings relating
 to any commercial dispute in respect of which the jurisdiction of
 the civil court is either expressly or impliedly barred under any
 other law for the time being in force.
 13. Appeals from decrees of Commercial Courts and                          E
 Commercial Divisions. - (1) Any person aggrieved by the
 decision of the Commercial Court or Commercial Division of a
 High Court may appeal to the Commercial Appellate Division of
 that High Court within a period of sixty days from the date of
 judgment or order, as the case may be:                                     F
 Provided that an appeal shall lie from such orders passed by a
 Commercial Division or a Commercial Court that are specifically
 enumerated under Order XLIII of the Code of Civil Procedure,
 1908 as amended by this Act and section 37 of the Arbitration and
 Conciliation Act, 1996.                                                    G
 (2) Notwithstanding anything contained in any other law for the
 time being in force or Letters Patent of a High Court, no appeal
 shall lie from any order or decree of a Commercial Division or
 Commercial Court otherwise than in accordance with the
 provisions of this Act.
                                                                            H
926      SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A     14. Expeditious disposal of appeals. - The Commercial
      Appellate Division shall endeavour to dispose of appeals filed
      before it within a period of six months from the date of filing of
      such appeal.
      15. Transfer of pending cases. - (1) All suits and applications,
B     including applications under the Arbitration and Conciliation Act,
      1996, relating to a commercial dispute of a Specified Value pending
      in a High Court where a Commercial Division has been constituted,
      shall be transferred to the Commercial Division.
      (2) All suits and applications, including applications under the
C     Arbitration and Conciliation Act, 1996, relating to a commercial
      dispute of a Specified Value pending in any civil court in any district
      or area in respect of which a Commercial Court has been
      constituted, shall be transferred to such Commercial Court:
      Provided that no suit or application where the final judgment has
D     been reserved by the Court prior to the constitution of the
      Commercial Division or the Commercial Court shall be transferred
      either under sub-section (1) or sub-section (2).
      (3) Where any suit or application, including an application under
      the Arbitration and Conciliation Act, 1996, relating to a commercial
E     dispute of Specified Value shall stand transferred to the
      Commercial Division or Commercial Court under sub-section (1)
      or sub-section (2), the provisions of this Act shall apply to those
      procedures that were not complete at the time of transfer.
      (4) The Commercial Division or Commercial Court, as the case
F     may be, may hold case management hearings in respect of such
      transferred suit or application in order to prescribe new timelines
      or issue such further directions as may be necessary for a speedy
      and efficacious disposal of such suit or application in accordance
      with Order XIV-A of the Code of Civil Procedure, 1908:
      Provided that the proviso to sub-rule (1) of Rule 1 of Order V of
G
      the Code of Civil Procedure, 1908 shall not apply to such transferred
      suit or application and the court may, in its discretion, prescribe a
      new time period within which the written statement shall be filed.
      (5) In the event that such suit or application is not transferred in
      the manner specified in sub-section (1), sub-section (2) or sub-
H
    KANDLA EXPORT CORPORATION & ANR. v. M/S OCI                                927
       CORPORATION & ANR. [R.F. NARIMAN, J.]

      section (3), the Commercial Appellate Division of the High Court         A
      may, on the application of any of the parties to the suit, withdraw
      such suit or application from the court before which it is pending
      and transfer the same for trial or disposal to the Commercial
      Division or Commercial Court, as the case may be, having territorial
      jurisdiction over such suit, and such order of transfer shall be final
                                                                               B
      and binding.
      21. Act to have overriding effect. - Save as otherwise provided,
      the provisions of this Act shall have effect, notwithstanding
      anything inconsistent therewith contained in any other law for the
      time being in force or in any instrument having effect by virtue of
      any law for the time being in force other than this Act.”                C

       12. The Arbitration and Conciliation Act, 1996, repealed the
Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act,
1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961.
Its long title reads as follows:
                                                                               D
      “An Act to consolidate and amend the law relating to domestic
      arbitration, international commercial arbitration and enforcement
      of foreign arbitral awards as also to define the law relating to
      conciliation and for matters connected therewith or incidental
      thereto.”
                                                                               E
       The said Act is in four parts. Part I, with which we are not
concerned in the present appeals, speaks of domestic as well as
international commercial arbitration that takes place in India. Part II,
with which we are directly concerned, speaks of enforcement of foreign
awards. A foreign award is defined in Section 44 as meaning an arbitral
award on differences between persons arising out of legal relationships        F
considered commercial, inter alia, in pursuance of an agreement in
writing for arbitration to which the New York Convention set forth in the
First Schedule applies. Sections 49 and 50, with which we are directly
concerned, read as under:
      “49. Enforcement of foreign awards.—Where the Court is                   G
      satisfied that the foreign award is enforceable under this Chapter,
      the award shall be deemed to be a decree of that Court.
      50. Appealable orders.—(1) An appeal shall lie from the order
      refusing to –
                                                                               H
928            SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A           (a) refer the parties to arbitration under section 45;
            (b) enforce a foreign award under section 48, to the court authorised
            by law to hear appeals from such order.
            (2) No second appeal shall lie from an order passed in appeal
            under this section, but nothing in this section shall affect or take
B           away any right to appeal to the Supreme Court.”
            13. By the Amendment Act of 2015, pursuant to a Law
      Commission Report, large scale amendments were made to various
      provisions contained in Part I. So far as Part II is concerned, an
      explanation was added to Section 47 which reads as under:
C
            “Explanation.—In this section and in the sections following in
            this Chapter, “Court” means the High Court having original
            jurisdiction to decide the questions forming the subject-matter of
            the arbitral award if the same had been the subject-matter of a
            suit on its original civil jurisdiction and in other cases, in the High
D           Court having jurisdiction to hear appeals from decrees of courts
            subordinate to such High Court.”
             14. Section 13(1) of the Commercial Courts Act, with which we
      are immediately concerned in these appeals, is in two parts. The main
      provision is, as has been correctly submitted by Shri Giri, a provision
E     which provides for appeals from judgments, orders and decrees of the
      Commercial Division of the High Court. To this main provision, an
      exception is carved out by the proviso. The primary purpose of a proviso
      is to qualify the generality of the main part by providing an exception,
      which has been set out with great felicity in CIT v. Indo-Mercantile
F     Bank Ltd., 1959 Supp (2) SCR 256 at 266-267, thus:
            “The proper function of a proviso is that it qualifies the generality
            of the main enactment by providing an exception and taking out
            as it were, from the main enactment, a portion which, but for the
            proviso would fall within the main enactment. Ordinarily it is foreign
            to the proper function of a proviso to read it as providing something
G
            by way of an addendum or dealing with a subject which is foreign
            to the main enactment. “It is a fundamental rule of construction
            that a proviso must be considered with relation to the principal
            matter to which it stands as a proviso”. Therefore it is to be
            construed harmoniously with the main enactment. (Per Das, C.J.
H
    KANDLA EXPORT CORPORATION & ANR. v. M/S OCI                                     929
       CORPORATION & ANR. [R.F. NARIMAN, J.]

      in Abdul Jabar Butt v. State of Jammu & Kashmir [(1957) SCR                   A
      51, 59]). Bhagwati, J., in Ram Narain Sons Ltd. v. Assistant
      Commissioner of Sales Tax [(1955) 2 SCR 483, 493] said:
          “It is a cardinal rule of interpretation that a proviso to a particular
          provision of a statute only embraces the field which is covered
          by the main provision. It carves out an exception to the main             B
          provision to which it has been enacted as a proviso and to no
          other.”
      Lord Macmillan in Madras & Southern Maharatta Railway
      Co. v. Bezwada Municipality [(1944) LR 71 IA 113, 122] laid
      down the sphere of a proviso as follows:                                      C
          “The proper function of a proviso is to except and deal with a
          case which would otherwise fall within the general language
          of the main enactment, and its effect is confined to that case.
          Where, as in the present case, the language of the main
          enactment is clear and unambiguous, a proviso can have no                 D
          repercussion on the interpretation of the main enactment, so
          as to exclude from it by implication what clearly falls within its
          express terms.”
      The territory of a proviso therefore is to carve out an exception to
      the main enactment and exclude something which otherwise would                E
      have been within the section. It has to operate in the same field
      and if the language of the main enactment is clear it cannot be
      used for the purpose of interpreting the main enactment or to
      exclude by implication what the enactment clearly says unless
      the words of the proviso are such that that is its necessary effect.
      (Vide also Corporation of City of Toronto v. Attorney-General                 F
      for Canada [(1946) AC 32, 37] .)”
       15. The proviso goes on to state that an appeal shall lie from such
orders passed by the Commercial Division of the High Court that are
specifically enumerated under Order XLIII of the Code of Civil Procedure
Code, 1908, and Section 37 of the Arbitration Act. It will at once be               G
noticed that orders that are not specifically enumerated under Order
XLIII of the CPC would, therefore, not be appealable, and appeals that
are mentioned in Section 37 of the Arbitration Act alone are appeals that
can be made to the Commercial Appellate Division of a High Court.
                                                                                    H
930             SUPREME COURT REPORTS                             [2018] 1 S.C.R.


A            16. Thus, an order which refers parties to arbitration under Section
      8, not being appealable under Section 37(1)(a), would not be appealable
      under Section 13(1) of the Commercial Courts Act. Similarly, an appeal
      rejecting a plea referred to in sub-sections (2) and (3) of Section 16 of
      the Arbitration Act would equally not be appealable under Section 37(2)(a)
      and, therefore, under Section 13(1) of the Commercial Courts Act.
B
            17. So far, so good. However, it is Shri Giri’s main argument that
      Section 50 of the Arbitration Act does not find any mention in the proviso
      to Section 13(1) of the Commercial Courts Act and, therefore,
      notwithstanding that an appeal would not lie under Section 50 of the
      Arbitration Act, it would lie under Section 13(1) of the Commercial Courts
C     Act.
             18. To answer this question, it is necessary to advert to the judgment
      in Fuerst Day Lawson (supra). The common question that arose for
      consideration in the batch of cases before the Court was whether an
      order, though not appealable under Section 50 of the Arbitration Act
D     would, nevertheless be subject to appeal under the Letters Patent of the
      High Court. In answering this question, this Court exhaustively reviewed
      the authorities and then stated, in paragraph 36, that the decisions noticed
      so far lay down certain broad principles. We are directly concerned
      with the principle laid down in sub-section (vii), which reads as under:
E           “(vii) The exception to the aforementioned rule is where the special
            Act sets out a self-contained code and in that event the applicability
            of the general law procedure would be impliedly excluded. The
            express provision need not refer to or use the words “letters
            patent” but if on a reading of the provision it is clear that all further
F           appeals are barred then even a letters patent appeal would be
            barred.”
                                                                     (at page 350)
             19. One of the submissions made before this Court in that case is
      the identical submission made by Shri Giri before us that Section 37
G     contains the expression “and from no others” which is conspicuous by
      its absence in Section 50 of the Arbitration Act. This was answered by
      the Court as follows:
            “60. It is also evident that Part I and Part II of the Act are quite
            separate and contain provisions that act independently in their
H
    KANDLA EXPORT CORPORATION & ANR. v. M/S OCI                                931
       CORPORATION & ANR. [R.F. NARIMAN, J.]

      respective fields. The opening words of Section 2 i.e. the definition    A
      clause in Part I, make it clear that meanings assigned to the terms
      and expressions defined in that section are for the purpose of that
      part alone. Section 4 which deals with waiver of right to object is
      also specific to Part I of the Act. Section 5 dealing with extent of
      judicial intervention is also specific to Part I of the Act. Section 7
                                                                               B
      that defines “arbitration agreement” in considerable detail also
      confines the meaning of the term to Part I of the Act alone. Section
      8 deals with the power of a judicial authority to refer parties to
      arbitration where there is an arbitration agreement and this
      provision too is relatable to Part I alone (corresponding provisions
      are independently made in Sections 45 and 54 of Chapters I and           C
      II, respectively of Part II). The other provisions in Part I by their
      very nature shall have no application insofar as the two chapters
      of Part II are concerned.
      61. Once it is seen that Part I and Part II of the Act are quite
      different in their object and purpose and the respective schemes,        D
      it naturally follows that Section 37 in Part I (analogous to Section
      39 of the 1940 Act) is not comparable to Section 50 in Part II of
      the Act. This is not because, as Mr Sundaram contends Section
      37 has the words in parenthesis “and from no others” which are
      not to be found in Section 50 of the Act. Section 37 and Section
      50 are not comparable because they belong to two different               E
      statutory schemes. Section 37 containing the provision of appeal
      is part of a much larger framework that, as seen above, has
      provisions for the complete range of law concerning domestic
      arbitration and international commercial arbitration. Section 50 on
      the other hand contains the provision of appeal in a much limited        F
      framework, concerned only with the enforcement of the New
      York Convention Awards. In one sense, the two sections, though
      each containing the appellate provision belong to different statutes.”
                                                       (at pages 356-357)
      The Court then went into the legislative policy which led to the         G
enactment of Section 50 of the Arbitration Act. It found that under the
erstwhile Foreign Awards Act, a formal decree had to be passed in
terms of the foreign award, and there was a possibility that such decree
may be in excess of or not in accordance with the award. It was for this
                                                                               H
932            SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A     reason that an appeal lay under Section 6(2) of the Foreign Awards Act
      even against a decree enforcing the foreign award. However, this was
      done away with in the Arbitration Act, by enacting Section 49, which
      makes a radical change by which the foreign award itself is deemed to
      be a decree of the Court. The exclusion of an appeal in such cases has
      thus to be understood in the light of the change in law introduced by
B
      Section 49 of the Act (see paragraphs 74 and 75 of the judgment). It
      may be added that the aforesaid amendment has speeded up the process
      of enforcing foreign awards by taking away the right of appeal in cases
      where the Single Judge decides in favour of enforcing a foreign award.
            20. The Court went on to discuss this Court’s judgment in Union
C     of India vs. Mohindra Supply Company, (1962) 3 SCR 497, and
      ultimately concluded:
            “89. It is, thus, to be seen that the Arbitration Act, 1940, from its
            inception and right through to 2004 (in P.S. Sathappan [(2004) 11
            SCC 672]) was held to be a self-contained code. Now, if the
D           Arbitration Act, 1940 was held to be a self-contained code, on
            matters pertaining to arbitration, the Arbitration and Conciliation
            Act, 1996, which consolidates, amends and designs the law relating
            to arbitration to bring it, as much as possible, in harmony with the
            Uncitral Model must be held only to be more so. Once it is held
E           that the Arbitration Act is a self-contained code and exhaustive,
            then it must also be held, using the lucid expression of Tulzapurkar,
            J., that it carries with it “a negative import that only such acts as
            are mentioned in the Act are permissible to be done and acts or
            things not mentioned therein are not permissible to be done”. In
            other words, a letters patent appeal would be excluded by the
F           application of one of the general principles that where the special
            Act sets out a self-contained code the applicability of the general
            law procedure would be impliedly excluded.
            90. We, thus, arrive at the conclusion regarding the exclusion of a
            letters patent appeal in two different ways; one, so to say, on a
G           micro basis by examining the scheme devised by Sections 49 and
            50 of the 1996 Act and the radical change that it brings about in
            the earlier provision of appeal under Section 6 of the 1961 Act
            and the other on a macro basis by taking into account the nature
            and character of the 1996 Act as a self-contained and exhaustive
H           code in itself.
    KANDLA EXPORT CORPORATION & ANR. v. M/S OCI                                 933
       CORPORATION & ANR. [R.F. NARIMAN, J.]

      91. In light of the discussions made above, it must be held that no       A
      letters patent appeal will lie against an order which is not appealable
      under Section 50 of the Arbitration and Conciliation Act, 1996.”
                                                              (at page 371)
       21. Given the judgment of this Court in Fuerst Day Lawson
(supra), which Parliament is presumed to know when it enacted the               B
Arbitration Amendment Act, 2015, and given the fact that no change
was made in Section 50 of the Arbitration Act when the Commercial
Courts Act was brought into force, it is clear that Section 50 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     C
in paragraph 89 of Fuerst Day Lawson (supra) that appeals which are
not mentioned therein, are not permissible. This being the case, it is
clear that Section 13(1) of the 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.                                                            D

       22. However, 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             E
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              F
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      G
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 (supra) would apply, and this being so, appeals            H
934             SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A     filed under Section 50 of the Arbitration Act would have to follow the
      drill of Section 50 alone.
             23. This, in fact, 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
B     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.
C           24. In fact, in Sumitomo Corporation vs. CDC Financial
      Services (Mauritius) Ltd. and Ors., (2008) 4 SCC 91, this Court
      adverted to Section 50 of the Arbitration Act and to Sections 10(1)(a)
      and 10F of the Companies Act, 1956, to hold that once an appeal is
      provided for in Section 50, the Court authorized by law to hear such
      appeals would then be found in Sections 10(1)(a) and 10F of the
D     Companies Act. The present case is a parallel instance of Section 50 of
      the Arbitration Act providing for an appeal, and Section 13(1) of the
      Commercial Courts Act providing the forum for such appeal. Only, in
      the present case, as no appeal lies under Section 50 of the Arbitration
      Act, no forum can be provided for.
E            25. A recent judgment of this Court in Arun Dev Upadhyaya v.
      Integrated Sales Service Ltd., (2016) 9 SCC 524 at 537 was adverted
      to by counsel for both sides. On facts, in this case, the Single Judge had
      refused to enforce a foreign award in favour of the appellants. The
      Respondents, in that case, claimed that an appeal from the Single Judge
F     was not maintainable in view of the abolition of the letters patent appeal
      by a Maharashtra Act of 1986. This Court, following Fuerst Day
      Lawson (supra), repelled the aforesaid contention in the following
      terms:
            “25. The aforesaid provision clearly lays down that a forum is
G           created i.e. Commercial Appellate Division. Section 50(1)(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.

H
    KANDLA EXPORT CORPORATION & ANR. v. M/S OCI                                  935
       CORPORATION & ANR. [R.F. NARIMAN, J.]

       26. Thus analysed, we find that the impugned judgment [Integrated         A
       Sales Services Ltd. v. DMC Management Consultants Ltd.,
       2016 SCC OnLine Bom 4445] of the learned Single Judge under
       Section 50(1)(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
                                                                                 B
       under the Letters Patent unless an appeal is provided under the
       1996 Act. Such an appeal 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
       does provide for an appeal. A conspectus reading of Sections 5
       and 13 of the Act and Section 50 of the 1996 Act which has                C
       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(1)(b) of the 1996
       Act and has to be adjudicated within the said parameters.”
      26. What is important to note is that it is Section 50 that provides       D
for an appeal, and not the letters patent, given the subject matter of
appeal. Also, the appeal has to be adjudicated within the parameters of
Section 50 alone. Concomitantly, where Section 50 excludes an appeal,
no such appeal will lie.
       27. In this view of the case, it is unnecessary to advert to Shri         E
Giri’s arguments based on Section 21 of the Commercial Courts Act.
Section 21 would only apply if Section 13(1) were to apply in the first
place, which, as has been found, cannot be held to apply for the reasons
given hereinabove. Equally, it is unnecessary to advert to the arguments
of the learned counsel for the Appellants based on Section 11 of the
Commercial Courts Act.                                                           F

       28. The matter can be looked at from a slightly different angle.
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            G
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 we were to provide an additional appeal,
                                                                                 H
936             SUPREME COURT REPORTS                          [2018] 1 S.C.R.


A     when Section 50 does away with an appeal so as to speedily enforce
      foreign awards, we would be turning the Arbitration Act and the
      Commercial Courts Act on their heads. Admittedly, 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
B
      enforcement of foreign awards. However, if, in the same fact
      circumstance, a foreign award were to be for Rs.one crore or more, if
      the Appellants are correct, 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
C     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, we feel
      that 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
D
      lead to further delay, instead of an expeditious enforcement of a foreign
      award must, therefore, be eschewed. 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
E     Act, being left to operate in spheres other than arbitration.
             29. The appeals are, therefore, dismissed with no order as to costs.


      Kalpana K. Tripathy                                        Appeals dismissed.

F




G




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