MAHANAGAR TELEPHONE NIGAM LTD.versusM/S. APPLIED ELECTRONICS LTD.

                        (2016] 11 S.C.R. 227



           MAHANAGAR TELEPHONE NIGAM LTD.                                A
                                 v.
              M/S. APPLIED ELECTRONICS LTD.
                 (Civil Appeal No(s).11584of2016)
                       NOVEMBER 24, 2016                                 B
           [DIPAK MISRA AND AMITAVA ROY, JJ.]
      Arbitration and Conciliation Act, 1996 - ss.5, 34, 37 - Code
of Civil Procedure, 1908 - Applicability of - To appeal u/s. 37 of
the 1996 Act - Cross objection by respondent, if maintainable -
Held: The 1996 Act is a complete code and s.5 of the same in
                                                                         c
categorical terms along with other provisions, lead to definite
conclusion that no other provision can be attracted - Thus, in the
scheme of the 1996 Act, the application of CPC' is not conceived of
and, therefore, as a natural corollary, a cross objection cannot be
entertained - Distinction from the scheme of 1940 Act, s../ 1 of which   D
states that the procedure of CPC would be applicable to appeals -
The Arbitration Act, 19./0 - s.41.
      HELD: 1. The Arbitration and Conciliation Act, 1996 as it
manifests, provides restrictions for challenging the award. It also
lays the postulate to assail the award and thus emphasis is on           E
expeditious disposal. It does not permit a second appeal to be
entertained as per the language employed in Section 37(3) and
also under Section 5 of the 1996 Act. [Para 25) [241-D)
      2. On perusal of s.41(a) of the Arbitration Act, 1940 in
juxtaposition with the provisions contained in the Arbitration and       F
Conciliation Act, 1996, it seems that the legislature has
intentionally not kept any provision pertaining to the appl!cability
of the CPC. On the contrary, section 5 of 1996 Act lays the
postulate, that notwithstanding anything contained in any other
law for the time being in force in matters covered by Part-I of the
1996 Act, no judicial authority shall intervene except so provided       G
whereve1· under this Act. Section 5 of the 1996 Act which
commences with a non-obstante clause clearly stipulates that no
judicial authority shall interfere except where so provided in
Part 1 of the 1996 Act. It is clearly perceived, the 1996 Act is a
complete Code and Section 5 in categorical terms along with other        H
                                 227
228            SUPREME COURT REPORTS                       [2016) 11 S.C.R.


A     provisions, lead to a definite conclusion that no other provision
      can be attracted. Thus, the application of ePC is not conceived
      of and, therefore, as a natural corollary, the cross-objection cannot
      be entertained. [Paras 11, 281 [234-E; 242-G-H]
            MCD v. International Security & Intelligence Agency
 B          Ltd. (2004) 3 sec 250 : 2003 (1) SCR 951 -
            distinguished.
            !TI Ltd. v. Siemens Public Co111111u11ications Network Ltd.
            (2002) 5 SCC 510 : 2002 (3) SCR 1122 - held needs
            re-consideration.
 c          Satpal P. Malhotra & Ors. v. Puneet Malhotra & Ors.
            Arbitration Appeal No. 12 of 2010 decided on 141h
            June, 2013 by the Delhi High Court ; SBP & Co. '"
            Patel Engineering Ltd. & Am: (2005) 8 SCC 618 : 2005
            (4) Suppl. SCR 688; Pandey & Co. Builders (P) Ltd.
 D          v. State of Bihar & Am: (2007) 1 sec 467 : 2006 (8)
             Suppl. SCR 997; Fuerst Day Lawsoi1 Ltd. v. Jindal
            Exports Ltd. (2011) 8 sec 333 : 2011 (11) SCR 1;
            Jamshed Hormu~ji Wadia v. Board of Trustees, Port of
            Mumbai & Am: (2004) 3 sec 214 : 2004 (1) SCR 483;
            P.S. Sathappan (dead) by Lrs. 1( Andhra bank Ltd. And
 E          Others (2004) 11 SCC 672 : 2004 (5) Sup11I. SCR 188;
            Arun Dev Upadhyaya v. Integraied Sales Service Ltd.
            and Am: 2016 (9) SCALE 427 - referred to.
                             Case Law Reference
 F    2003 (1) SeR 951                 distinguished          Para 15
      2002 (3) SCR 1122                held needs
                                       re-consideration       Para4
      2005 (4) Suppl. SCR 688          referred to            Para 22
      2006 (8) Suppl. SCR 997          referred to            Para4
G
      2011 (11) SCR 1                  referred to            Para4
      2004 (1) SCR 483                 referred to            Para4
      2004 (5) Suppl. SCR 188          referred to            Para 20
      2016 (9) SCALE 427               referred to            Para 26
H
    MAHANAGAR TELEPHONE NIGAM LTD. v. MIS. APPLIED                            229
                 ELECTRONICS LTD.

     CJV!L APPELLATE JURISDICTION : Civil Appeal No. 11584                     A
of2016.
     From the Judgment and Order dated 28.07.2014 of the High Court
ofDelhi inC.M.No.15530of2013.
     Neeraj Kishan Kaul, ASG, Saket Sikri, Ajay Pal,
Ms. N. Annapoorani, Advs. for the Appellant.                                   B
      Arun Kr. Varma, Sr. Adv., Puneet Singh Bindra, Ashish Joshi,
Advs. for the Respondent.
         The Judgment of the Court was delivered by
         DIPAK MISRA, J. I. Leave granted.
       2. The present appeal, by special leave, calls in question the legal
                                                                               c
tenability of the order dated 28'" July, 2014 passed by the High Court of
Delhi wherein a Division Bench in CM No. 15530 of2013 placing reliance
on S(ltpa/ P. Malhotra & Ors. vs. Pu11eet Malhotra & Ors. 1 tlu~t has
fol lowed the decision in MCD vs. Intern(lfional Security & l11tcllige11ce
Agency Ltd. 1 has expressed the view that the Code of Civil Procedure,         D
1908 (for short 'the CPC') would be applicable to the proceedings under
the Arbitration and Conciliation Act, 1996 (for short 'the 1996 Act). Be
it stated, while expressing the view that the CPC is applicable to an
appeal preferred under Section 3 7 of the Act, the High Court has in the
impugned order opined thatthe cross objection preferred by the respondent
                                                                                E
herein was maintainable and accordingly entertained the sa111e after
condoning the delay.
       3. Assailing the said order, it is submitted by Mr. N.K. Kaul,
teamed Additional Solicitor General, appearing forthe appellant, that the
scheme of the 1996 Act does not grant any space or make any provision
as regards the applicability ofCPC unlike the Arbitration Act, 1940 (for        F
short 'the 1940 Act') and in the absence of any express provision, the
legislative intendment is not to make it applicable. It is hk; further
submission that Sections 5, 34, 37 and 50 of the 1996 Act constitute a
complete code and it clearly provides the measures for adjudging or
deciding the validity of an award or even to adjudge the defensibility of       G
an interim order. It is urged by him that recourse to any other mode
under the CPC to challenge an order or the award passed under the Act
would create an anomalous situation and frustrate the intention of the
legislature.
1
    Arbitration Appeal No. 12 of2010 decided on 14th Jun~. 2013
2 (2004) 3    sec 250                                                          H
230             SUPREME COURT REPORTS                            [2016] 11 S.C.R.



A             4. Learned senior counsel would submit that the pronouncement
      in the ITI Ltd. vs. Siemens Public Conmumimtions Network Ltd. 3
      holds that the applicability ofCPC is not prohibited and, therefore, Section
      5 of the 1996 Act would not be attracted and the High Court can exercise
      the revisional power to rectify an order passed by the District Cou1t, but
      the said verdict runs counter to the decision of the larger Bench renoered
 B
      in SBP & Co. vs. Patel Engineering Ltd. & Anr." and other decisions,
      namely, Pandey & Co. Builders (P) Ltd. vs. State of Biliar & Anr.;
      and Fuerst Day Lawson Ltd. vs. Jindal Exports Ltd. 6 • According to
      Mr. Kaul, the aggrieved person can prefer an appeal under Section 3 7
      exercising his independent right but cannot be allowed to take rec::iurse
 c    to file cross objection to advance his right that has been denied to him by
      the Court in exercise of power under Section 34 of the 1996 Act. For
      the said purpose he has drawn immense inspiration from the authority in
      Jams/zed Hormusji Wadia vs. Board of Trustees, Port of Mumbai &
      Anr. 7•
 D           5. Mr. Arnn Kumar Varma, learned senior counsel appearing for
      the respondent, per contra, would contend that the decision rendered in
      ITI Ltd. (supra) is absolutely unquestionable and a binding precedent on
      this Court. According to him, the principle stated in Jams/zed Hormusji
      Wadia (supra) is not applicable, inasmuch as it deals with an appeal
      preferred after obtaining special leave under Article 136 of the
 E    Constitl!tion. It is further propounded by him that the High Court of
      Bombay as well as the High Court of Delhi has correctly relied on the
      principle enunciated by the three-judge Bench in International Security
      Inte[iJ(eJ!ce AJ(ency Ltd. (supra).
             6. In course of hearing, we have been apprised that the decision
 F    rendered by the High Court of Bombay has been challenged before this
      Court and leave has been granted, and the matter is pending for
      adjudication. However, we intend to express our view with regard to the
      submissions advanced at the Bar. The statement of objects and reasons
      of the 1996 Act read as fol lows:-
 G            "l11e law on arbitration in India is at present substantially contained
              in three enactments, namely, the Arbitration Act, 1940, the
      -----
      3(2002i s sec s10
      ' (2005) s sec 618
      ' (2007) 1 sec 467
      ' (2011) s sec 333
 H    1
        (2004) 3 sec 214
MAHANAGAR TELEPHONE NIGAM LTD. v. M/S. APPLIED                            231
      ELECTRONICS LTD. [DIPAK MISRA, J.]

    Arbitration (Protocol and Convention)Act, 1937 and the Foreign         A
    Awards (Recognition and Enforcement) Act, 1961. It is widely
    feltthatthe 1940 Act, which contains the general law ofarbitration,
    has become outdated. The Law Commission of India, several
    representative bodies of trade and industry and experts in the
    field of arbitration have pro-posed amendments to this Act to
                                                                           B
    make it more responsive to contemporary requirements. It is
    also recognised that our economic reforms may not become fully
    effective ifthe law dealing with settlement of both domestic and
    international commercial disputes remains out of tune with such
    reforms. Like arbitration, conciliation is also getting increasing
    worldwide recognition as an instrument for settlement of disputes.     c
    There is, however, no general law on the subject in India.
    2. The United Nations Commission on International Trade Law
    (UNCITRAL) adopted in 1985 the Model Law on International
    Commercial Arbitration. The General Assembly of the United
    Nations has recommended that all countries give due                    D
    consideration to the said Model Law, in view of the desirability
    of uniformity of the law ofarbitral procedures and the specific
    needs of international commercial arbitration practice. The
    UNCITRAL also adopted in 1980 a set of Conciliation Rules.
    The General Assernbly of the United Nations has recommended
    the use of these Rules in cases where the disputes arise in the         E
    context of international commercial relations and the parties seek
    amicable settlement of their disputes by recourse to conciliation.
    An important feature of the said UNCITRAL Model Law and
    Rules is that they have harmonised concepts on arbitration and
    conciliation of different legal systems of the world and thus           F
    contain provisions which are designed for universal application.
    3. Though the said UNCITRAL Model Law and Rules are
    intended to deal with international commercial arbitration and
    conciliation, they could, with appropriate modifications, serve as
    a model for legislation on domestic arbitration and conciliation.       G
    The present Bill seeks to consolidate and amend the law relating
    to domestic arbitration, international commercial arbitration,
    enforcement of foreign arbitral awards and to define the law
    relating to conciliation, taking into account the said UNCITRAL
    Model Law and Rules.
                                                                            H
232           SUPREME cm Kl Rt~PORTS                               [2016111 S.C.R.


 A          4. The main objectives of the Bill are as under:--
            ( i) to cornprt:hcnsivcly cover international and commercial
            arbitration and conciliation as also domestic arbitration and
            conci Ii at ion;
             (ii) to make provision for an arbitral procedure which is fair,
 B           efficient and capable of meeting the needs of the specific
             arbitration;
             (iii) to provide ciiat the arbitral tribunal gives reasons for its arbitral
             award;
 C           (iv) to ensure that the arbitral tribunal remains within the limits
             of its jurisdiction;
            (v) to minimise the supervisory role of cou11s in the arbitral
            process;
             (vi) to permit an arbitral tribunal to use mediation, conciliation or
 D           other procedures during the arbitral proceedings to encourage
             settlement of disputes;
             (vii) to provide that eve1y final arbitral award is enforced in the
             same manner as if it were a decree of the cou11;
             (viii) to provide that a settlement agreement reached by the parties
 E
             as a result of conciliation proceedings will have the same status
             and effect as an arbitral award on agreed terms on the substance
             of the dispute rendered by an arbitral tribunal; and
             (ix) to provide that, for purposes of enforcement of foreign
             awards, every arbitral award made in a country to which one of
 F           the two international Conventions relating to foreign arbitral
             awards to which India is a pa11y applies, will be treated as a
             foreign award.
             5. The Bill seeks to achieve the above objects."

 G          7. Section 5 of the 1996 Act provides the extent of judicial
      intervention. It reads as follows:-
             " Extent of judicial intervention.-Notwithstanding anything
             contained in any other law for the time being in force, in matters
             governed by this Part, no judicial authority shall intervene except
             where so provided in this Part."
 H
 MAHANAGAR TELEPHONE NIGAM LTD. v. M/S. AP?LIED                                 233
       ELECTRONICS LTD. [DlPAK MISRA, .I.]

       The aforesaid provision is specific and has a definite purpose.           A
The language employed in the aforesaid provision provides the exclusive
path for judicial intervention and does not countenance any other method.
The same would be clearly demonstrable when we appreciate the scheme
of the Act.
       8. Section 9 of the 1996 Act provides for interim measures etc.           13
by Court. Section 11 of the 1996 Act deals with appointment of
Arbitrators. Chapter 4 that contains Sections 16 & 17 deals with
jurisdiction of the Arbitral Tribunals. Section 34 provides for application
for setting aside arbitral Award. Section 3 7 stipulates about the appealable
orders. It reads as follows:-
                                                                                 c
        "3 7. Appealable orders-( l) An appeal shall lie from the following
        orders (and from no others) to the Cou1t authorised l:y law to
        hear appeals from original decrees of the Court passing the order,
        namely:-
        (a)refusing to refer the parties to arbitration under section 8;         D
        (b )granting or refusing to grant any measure under section 9;
        ( c )setting aside or refusing to set aside an arbitral award under
        section 34.
        (2) An appeal shall also lie to a Court from an order granting of
                                                                                 E
        the arbitral tribunal.-
        ( a) accepting the plea referred in sub-section (2) or sub-section
        (3) of section 16; or
        (b) granting or refusing to grant an interim measure under section
        17.                                                                      F
        (3) No second appeal shall lie from an order passed in appeal
        under this section, but nothing in this section shall affect or take
        away a,ny right to appeal to the Supreme Cou1t."
      9. Part 11 of the 1996 Act provides for enforcement of certain
Foreign Awards. Section 50 of the said part provides for appealable              G
orders. The said provision reads as follows:-
        "50. Appealable orders.-(!) An appeal shall lie from the order
        refusing to-
        (a) refer the parties to arbitration under section 45;
                                                                                 H
234             SUPREME COURT REPORTS                          f20161 11 S.C.R.



A             (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
              away any right to appeal to the Supreme Court."
 B            I 0. Relying on the aforesaid provisions, it is proponed by Mr. Kaul
      that it is a complete code from all angles and hence, the CPC would not
      have any application and once CPC is not applicable, entertaining a cross
      objection under Order XL! Rule 22 is totally impermissible. In this context,
      we may usefully refer to Section 41 (a) of the 1940 Act. The said provision
 c    dealt with procedure and powers of court. For the sake of completeness,
      we extract the same:-
              "41 Procedure and powers of court-Subject to the provisions
              of this Act and of rules made thereunder -
              (a) the provisions of the Code of Civil Procedure, 1908, shall
 D            apply to all proceedings before the Court, and to all appeals,
              under this Act, and
              (b) ······
             11. On a perusal of the said provision, in juxtaposition with the
      provisions contained in 1996 Act, it seems to us that the legislature has
 E    intentionally not kept any provision pertaining to the applicability 0fthe
      CPC. On the contrary, Section 5 of 1996 Act lays the postulate, that
      notwithstanding anything contained in any other law for the time be;ng in
      force in matters covered by Part I, no judicial authority shall intervene
      except so provided wherever under this Act.

 F           12. In /Tl Lttf. (supra) the assail was to the judgment and order
      of the I Q1h Additional City Civil Judge, Bangalore passed in a Misc.
      Appeal. The said appeal was preferred against an interim order passed
      by the arbitral tribunal. The principal question that emerged for
      consideration before this court is whether a revision petition under Section
      115 of the CPC lies to the High Court against an order made by the Civil
 G    Court in an appeal preferred under Section 37 of the Act. It is necessary
      to note here that the appellant therein instead of moving the High Court
      had approached this comt directly. Be that as it may. Hegde, J in his
      opinion, analysing the scope of Section 5 has opined thus:-
              ''We also do not find much force in the argument of learned
 H            counsel for the appellant based on Section 5 of the Act. It is to
MAHANAGAR TELEPHONE NIGAM LTD. v. M/S. APPLIED                               235
      ELECTRONICS LTD. [DIPAK MISRA, J.]

    be noted that it is under this Part, namely, Part I of the Act that       A
    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
    civi I court. In such a situation, the proceedings before such court
                                                                              B
    will have to be controlled by the provisions of the Code, foerefore,
    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        c
    of the High Court gets attracted. If that be so, the bar under
     Section 5 will not be attracted because conferment of r.ppellate
    power on the civil court in Part I of the Act attracts the provisions
    of the Code also."
   13. Thereafter the learned judge has expressed as follows:-                D
    "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          E
    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 oflimitation, ifany."
                                                                               F
   14. Dharmadhikari, Jin his concurring opinion stated that:-
    "Provisions of Section 3 7 of the Act of 1996 bar second appeal
    and not revision ).mder Section 115 of the Code of Civil Procedure.
    The power of appeal under Section 37(2) of the Act against
    order of the Arbitral Tribunal granting or refusing to grant an            G
                                                                1

    interim measure is conferred on the court. "Court" is defined in
    Section 2(e) meaning the "Principal civil court of original
    jurisdiction" which has ''.jurisdiction to decide the question forming
    the subject matter of the arbitration if the same had been the
    subject-matter of· the suit". The power of appeal having
    conferred on a civi I court all procedural provisions contained in         H
:236            SUPREME COURT REPORTS                          j2016J l 1 S.C.R.



 A            the Code would apply to the proceedings in appeal. Such
              proceedings in appeal are not open to second appeal as the same
              is clearly barred under sub- section(3) of Section 3 7. But I agree
              with the conclusion reached by Brother 1-Iegde . .I. that the
              supervisory and revisional jurisdiction of the 1-1 igh Court under
              Section 115 of the Code of Civil Procedure is neither expressly
 B
              nor impliedly barred either by the provisions of Section 37 or
              Section 19( I) of the Act. Section 19( I) under Chapter V of Part
              I of the Act merely states that the Arbitral Tribunal shall not be
              bound by the Code of Civil Procedure. The said action has 110
              application to the proceedings before the civil court in exercise
 c            of powers in appea I under Section 39(2) of the Act."
              15. In /11ternatio1111/ Security & illtellige11ce Agency Ltd.
       (supra), a three-Judge bench was dt:aling with maintainability ofa cross
       objection under Order XL! Rule 22 of the CPC. It is apt to mention here
       that the controversy arose in the context of 1940 Act. While dealing
 D     with the same, the three-Judge bench ruled thus:-
              " 14.Right of appeal is creature of statute. There is no inherent
              right of appeal. No appeal can be filed, heard or determined on
              merits unless the statute confers right on the appel Iant and power
              on the Court to do so. Section 39 of the Act confers right to file
 E            appeal, in so far as the orders passed under this Act are
              concerned, only against such of the orders as fall within one or
              other of the descriptions given in clauses (i) to (vi) of sub-Section
              (I) of Section 39. The Parliament has taken care to specifically
              exclude any other appeal being filed, against any order passed
              under the Act but not covered by clauses (I) to (vi) abovesaid,
 F            by insetting the expression "and from no others" in the text of
              sub-Section (I). Clause (a) of Section 41 extends applicability of
              all the provisions contained in the Code of Civil Procedure, 1908
              to (i) all proceedings before the Court under the Act, and (ii) to
              all the appeals. under the Act. However, the applicability of
 G            such of the provisions of the Code of Civil Procedure shall be
              excluded as may be inconsistent with the provisions of the Act
              and/or of rules made thereunder. A bare reading of these
              provisions show that in all the appeals filed under Section 39, the
              provisions of the Code of Civil Procedure, 1908 would be
              applicable. This would include the applicability of Order 41
 H
 MAHANAGAR TELEPHONE NIGAM LTD. v. M/S. APPLIED                                237
       ELECTRONICS LTD. [DIPAK MISRA, J.]

       including the right to take any cross objection under Rule 22            A
       thereof to appeals under Section 39 of the Act.
       15. Right to prefer cross objection partakes of the right to prefer
       an appeal. When the impugned decree or order is partly ;n favour
       of one party and partly in favour of the other, one party may rest
       contended by his partial success with a view to giving a quietus         B
       to the litigation. However, he may like to exercise his right of
       appeal ifhe finds that the other party was not interested in burying
       the hatchet and proposed to keep the lis alive by pursuing the
       same before the appellate forum. He too may in such
       circumstances exercise his right to file appeal by taking cross
       objection. Thus taking any cross objection to the decree or order
                                                                                c
       impugned is the exercise of right of appeal though such right is
       exercised in the form of taking cross objection. The substantive
       right is the right of appeal; the form of cross objection is a matter
       of procedure.
       20. Once we hold that by taking cross objection what is being            D
       exercised is the right of appeal itself, it follows that the subject-
       matter of cross objection and the relief sought therein must
       conform to the requirement of Section 39(1 ). In other words, a
       cross objection can be preferred if the applicant cou Id have sought
       for the same relief by filing an appeal in conformity with the           E
       provisions of Section 39(1) of the Act. If the subject-matter of
       the cross objection is to impugn such an order which does not
       fall within the purview of any of the categories contemplated by
       clauses (i) to (vi) of sub-Section(!) of Section 39 oftheAct, the
       cross objection shall not be maintainable."
                                                                                F
         16. After so stating, the Court adverted to the fate of cross-
objections ifthe appeal itself is held not competent or not maintainable.
We are not concerned with the aforesaid delineation and, therefore,
construe it inessential to advert to the said facet. Suffice it to mention
that the decision was rendered in the backdrop of 1940 Act and hence,
it is distinguishable.                                                          G

      17. In Pandey & Co. Builders (P) Lt<I. (supra), the Court
reproduced a passage from the treatise "Law and Practice ofArbitration
and Conciliation" wherein the learned authors have stated thus:-
        "In the context of this Act, Section 37(3) barring second appeal
                                                                                H
238            SUPREME COURT REPORTS                           [2016] 11 S.C.R.


A             against an appellate order under Section 37(1) and (2) is really
              superfluous. This Act has not enacted any provision analogous
              to s 41 of the previous Act. It is radically different from the Act
              of 1940. Therefore, the Code of Civil Procedure 1908 proprio
              vi gore does not apply to the proceedings before the court in its
              original or appellate jurisdiction. Section 5 imposes a blanket
 B
              ban on judicial intervention of any type in the arbitral process
              except 'where so provided under Part I of this Act. Pursuant to
              this provision, Section 37(1) provides appeals against certain
              orders of the court, whiles 37(2) provides appeal against certain
              orders of the arbitral tribunal. However, Section 37(3) prohibits
 c            a second appeal against the appellate order under Section 3 7( I)
              and (2). However, in view of the provisions of s 5, a second
              appeal against the appellate order under s 3 7(1) and (2) would
              not be permissible, even ifs 37(3) had not been enactt>d. It
              was, therefore, not really necessary to enact this provision, and
              it seems to have been enacted by way of abundant caution."
 D
             18. We may immediately state that Mr. Kaul has commended the
      said passage to highlight that the same has been given the stamp of
      approval by this Court. We have referred to the said passage only to
      emphasise the effect and impact of Section 5 of 1996 Act. In the said
      decision, it has also been ruled that even ifthe bar under Section 37(3)
 E    of 1996 Act would not have been provided by the legislature, Section 5
      would have been adequate enough to bar a second appeal.
             19. In Fuerst Day Lawson Limited (supra), the issue that arose
      for consideration is whether an order, though not appealable under Section
      50 of the 1996 Act, could nevertheless be subject to appeal under the
 F    relevant provisions of the Letters Patent of the High Court. We are
      absolutely conscious that the said judgment was delivered in the context
      of Part II of the Act. Section 5, as noticed earlier, does not relate to Part
      II. However, analysing various authorities relating to maintainability of
      Letters Patent Appeal, the court pointed out the distinction between the
 G    language of the 1940 Act and the I 996Act. In this context, it is profitable
      to quote para 89 in its entircty:-
              "89. It is thus, to be seen that Arbitration Act, 1940, from its
              inception and right through to 2004 (in P.S. Sathappan) was held
              to be a self-contained code. Now, if the Arbitration Act, 1940
 H            was held to be a self-contained code, on matters pertaining to
  MAHANAGAR TELEPHONE NIGAM LTD. v. M/S. APPLIED                                239
        ELECTRONICS LTD. [DIPAK MISRA, J.]

         arbitration, the Arbitration and Conciliation Act, 1996, which          A
         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 that the
         Arbitration Act is a self-contained code and exhaustive, then it
         must also be held, using the lucid expression ofTulzapurkar, J.,
                                                                                 B
         that it carried 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
         application of the one of the general principles that where the
         special Act sets out a self-contained code the applicability of the     c
         general law procedure would be impliedly excluded."
         20. Slightly earlier, we have mentioned that the court has referred
  to a series of decisions with regard to the maintainability of a Letters
  Patent Appeal. The two-Judge Bench has referred to the Constitution
. Bench decision in P.S. S<ttlwppan (deatl) by Lrs. vs. Antllzra bank            D
  Ltd. And Ot/1ers8 and other decisions. In paragraph 36 of the judgment,
  the Court has culled out certain principles. For the present case, the sub
  clause (vii) of paragraph 36 is significant. It reads as follows:
         "36(vii) The exception to the aforementioned rule is where the
         special Act sets out a self-contained code and in that event the        E
         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 appeals are barred then even a letters patent
         appeal would be baITed."
                                                                                 F
       21. It is interesting to note that in ITI Ltd. (supra) the two-Judge
 bench has held that solely because a second appeal is not maintainable,
 it would not debarthe exercise of jurisdiction under Section 115 of the
 CPC, because under Section 115 of the CPC the court exercises its
 power of supervisory or revisional jurisdiction.
                                                                                 G
        22. In Patel Engineering Ltd. (supra) the majority, while dealing
 with the power under Articles 226 and 227 of the Constitution, has ruled
 that:-
         "45. It is seen that some High Courts have proceeded on the
 " (2004) 11 sec 672                                                             H
240            SUPREME COURT REPORTS                           [2016] 11 S.C.R.



 A            basis that any order passed by an arbitral tribunal d:iring
              arbitration, would be capable of being challenged under Article
              226 or 227 of the Constitution of India. We see no warrant for
              such an approach. Section 37 makes certain orders of the arbitral
              tribunal appealable. Under Section 34, the aggrieved party has
              an avenue for ventilating his grievances against the award
 8
              including any in-between orders that might have been passed by
              the arbitral tribunal acting under Section 16 of the Act. The party
              aggrieved by any order of the arbitral tribunal, unless has a right
              of appeal under Section 37 of the Act, has to wait until the P.ward
              is passed by the Tribunal. This appears to be the scheme of the
 c            Act. The arbitral tribunal is after all, the creature of a contract
              between the parties, the arbitration agreement, even though if
              the occasion arises, the Chief Justice may constitute it based on
              the contract between the parties. But that wou Id not alter the
              status of the arbitral tribunal. It will still be a forum chos'en by
              the parties by agreement. We, therefore, disapprove of the stand
 D
              adopted by some of the High Courts that any order passed by
              the arbitral tribunal is capable of being corrected by the High
              Court under Article 226 or 227 of the Constitution oflndia. Such
              an intervention by the High Courts is not permissible.
              46. The object of minimizingjudicial intervention while the matter
 E            is in the process ofbeing arbitrated upon, will certainly be defeated
              if the High Court could be approached under Article 227 of the
              Constitution oflndia or under Article 226 of the Constitution of
              India against every order made by the arbitral tribunal. Therefore,
                                               1
              it is necessary to indicate that once the arbitration has
 F            commenced in the arbitral tribunal, parties have to wait until the
              award is pronounced unless, of course, a right of appeal is
              available to them under Section 37 of the Act even at an earlier
              stage."
             23. We are absolutely conscious that the principle stated in the
 G    aforesaid verdict pertaining to interference of exercise of jurisdiction
      was in relation to any order passed by the arbitral tribunal. However, we
      have referred to the same to exposit and underline the stress on the
      minimal intervention of the court. In essence it has to be rememlJered
      that the concept of dispute resolution under the law of arbitration, rests
      on the folcrum of promptitude.
 H
    MAHANAGAR TELEPHONE N!GAM LTD. v. M/S. APPLIED                               241
          ELECTRONICS LTD. [DIPAK MISRA, J.)

       24. In /Tl Ltd. (supra), it has been held that the jurisdiction of the     A
civil court to which a right to decide a /is between the parties has been
conferred can only be taken away by a statute in specific terms and
exclusion of such right cannot be inferred because there is always a
strong presumption, that the civil courts have the jurisdiction to clecide all
questions of civil nature and on that basis the court held that it cannot
                                                                                   B
draw inference merely because the Act has not provided CPC to be
applicable and thus it should be held that the CPC is inapplicable.
        25. In Fuerst Dlly Lllwson Ltd. (supra), the two-Judge Bench
placing reliance on a series of authorities has drawn a distinction between
the 1940 Act and 1996 Act and has opined that once the 1996 Act is
regarded as a self contained and exhaustive code, it should be !1eld that
                                                                                   c
it carries with it a negative import that only such acts either mentioned in
the Act are permissible to be done and acts or things not mentioned
therein are not permissible to done. The 1996 Act, as it manifests,
provides restrictions for challenging the award. It also lays the postulate
to assail the award and thus emphasis is on expeditious disposal. It does          D
not permit a second appeal to be entertained as per the language employed
in Section 37(3) and also under Section 5 of the 1996 Act. 1:-he two-
Judge Bench has reproduced a lucid expression of Tulzapurkar, J. to
make home the point -- "a negative import that only such acts as are
mentioned in the Act are pennissible to be done and acts or things not
                                                                                   E
mentioned therein are not permissible to be done".
      26. In Aru11 Dev Upadliyllyll vs. I11tegrltted Sltles Service Ltd.
andA11r. 9 , the issue that arose for consideration is whether an arbitration
appeal was maintainable from an order passed by the learned single
Judge pertaining to execution of the award. It was urged before the
Division Bench of the High Court, that an appeal under Clause I 0 was              F
not available in arbitration matters and Section 13 of the Commercial
Courts, Commercial Division and Commercial Appellate Division of the
High Coutts Act, 2015 would not be applicable to an arbitration appeal.
The High Court opined that the appeal was maintainable. A two-Judge
Bench of the Court analyzing various provisions and the earlier precedents         G
came to hold that:-
          "23. The aforesaid provision clearly lays down that a forum is
          created, i.e., Commercial Appellate Division. Section 50(1)(b)
          of the 1996 Act provides for an appeal. Section 50( 1)(b) has not
9
    2016 (9) SCALE 427                                                             H
242             SUPREME COURT REPORTS                          f2016111 S.C.R.


A             been amended by the Act that has come into force on 23.10.2015.
              Thus, an appeal under Section 50(l)(b) of the !996Act before
              the Division Bench is maintainable.
              24. Thus analysed, we find that the impugned judgment of the
              learned Single Judge under Section 50( I )(b) of the 1996 Act is
 B            passed in the original side of the High Comt. Be that as it may,
              under Section 13 of the Act, the single Judge has taken the
              decision. Section 13 bars an appeal under Letters Patent unless
              an appeal is provided under the 1996 Act. Such an appeal is
              provided under Section 50 of the Act. The Letters Patent Appeal
              could not have been invoked if Section 50 of the 1996Act would
c             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 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
D             under Section 50(1) (b) of the 1996Actand has to be adjudicated
              within the said parameters."
             The said decision was rendered in respect of appeal under Section
      50 which occurs in Part II but emphasis has been laid with regard to
      adjudication of an appeal within the parameters of Section 50(1 )(b) of
 E    the l 996 Act.
            27. As is manifest, a person grieved by the award can file objtction
      under Section 34 of the 1996 Act, and ifaggrieved on the order passed
      thereon, can prefer an appeal. The court can set aside the award or
      deal with the award as provided by the 1996 Act. If a corrective measure
 F    is thought of, it has to be done in accordance with the provision as
      contained in Section 37 of the 1996 Act, for Section 37(1) stipulates for
      an appeal in case of any grievance which would include setting aside of
      an arbitral award under Section 34 of the Act.
             28. Section 5 which commences with a non-obstante clause
G     clearly stipulates that no judicial authority shall interfere except where
      so provided in Part I of the 1996 Act. As we perceive, the 1996 Act is
      a complete Code and Section 5 in categorical terms along with other
      provisions, lead to a definite conclusion that no other provision can be
      attracted. Thus, the application ofCPC is not conceived of and, therefore,
      as a natural corollary, the cross-objection cannot be entertained. Though
H     we express our view in the present manner, the judgment rendered in
 MAHANAGAR TELEPHONE NIGAM LTD. v. M/S. APPLIED                                   243
       ELECTRONICS LTD. [DIPAK MISRA, J.]

IT/ Ltd. (supra) is a binding precedent. The three-Judge Bench decision            A
in b1tern"tionlll Security & Intellil(ence Al(ency Ltd. (supra) can be
distinguished as that is under the 1940 Act which has Section 41 which
clearly states that the procedure ofCPC would be applicable to appeals.
The analysis made in IT/ Ltd. (supra) to the effect that merely because
the 1996 Act does not provide CPC to be applicable, it should not be
                                                                                   B
inferred that the Code is inapplicable seems to be incorrect, for the scheme
of the 1996 Act clearly envisages otherwise and the legislative intendment
also so postulates.
      29. As we are unable to follow the view expressed in /TI Ltd.                     ,
(supra) and we are of the considered opinion that the said decision
deserves to be re-considered by a larger Bench. Let the papers be                  c
placed before the Hon'ble the Chief Justice oflndia for constitution of
an appropriate larger Bench.
      30. The interim order to continue.
Ankit Gyan                                           Interim order to continue.