Holding

The High Court had jurisdiction to file the award, and the order refusing to recall was not an appealable order under Section 39, so the appeal was not maintainable.

Summary

The Union of India entered into supply contracts with respondents and, after disputes, arbitrators were appointed by the Calcutta High Court. The arbitrators filed their award in the Calcutta High Court, and the court made the award a rule of court despite the Union’s claim that it should have been filed in the Asansol district court. The Union later applied to recall the ex‑parte decree making the award a rule of court, alleging prior applications to the Assistant District Judge, Asansol, but the High Court dismissed the application on the ground that no objections to the award had been filed. The Union appealed, contending that the High Court lacked jurisdiction and that the order refusing to recall was appealable under Section 39 of the Arbitration Act, 1940. The Supreme Court held that the Calcutta High Court had proper jurisdiction, that filing the award there was lawful, and that the order refusing to recall was not an appealable order under Section 39; consequently, the appeal was not maintainable. The appeals were dismissed.

Issues considered

The High Court’s jurisdiction to file the arbitration award in Calcutta rather than Asansol.
Whether the order refusing to recall the ex‑parte decree is appealable under Section 39 of the Arbitration Act, 1940.
Whether the appeal is barred as a second appeal under Section 39(2) and the applicability of Section 41 of the Arbitration Act to CPC provisions.

Legislation cited

Arbitration Act, 1940s. 14(2), s. 17, s. 28, s. 39, s. 41
Code of Civil Procedure, 1908s. Order 43 clause (c), s. Order 9 Rule 13, s. Section 104

Subjects

ArbitrationAward filingJurisdictionAppealabilitySection 39 Arbitration ActSection 41 Arbitration ActEx‑parte decreeRule of CourtCivil Procedure Code

Judgment

UNION OF INDIA AND ORS. A
v.
ARADHANA TRADING CO. AND ORS.

APRIL I, 2002.

[B.N. KIRPAL, K.G. BALAKRISHNAN AND BRIJESH KUMAR, JJ.] B

Arbitration Act, 1940-Sections 14(2), 17,28,39 and 41.

Code of Civil Procedure, I 908 : Order 9 Rule I 3 and Section I 04.
c
Arbitration-Agreement between Union of India and a Company For
supply of items to Railways at Asansol-Dispute-Appointment of Arbitrator
by High Court Order-Time extended by Calcutta High Court to give Award
with consent of parties-Award filed in High Court-Despite notice of filing
Union of India neither appearing nor filing objections-Award made Rule of D
• Court-Application for reca/ling High Court's Order-Rejection of-Contention
that Award should not have been filed in Calcutta High Court rejected--
Order rejecting application for recalling High Court Order held not an order
refusing to set aside Award-Appeal against such an order-Maintainability
ef E
Appellant-Union of India entered into agreements with respondents for
supply of certain items to the Railways viz. Chitranjan Locomotives situated
at Asansol. Disputes having arisen regarding payment, the respondents filed
""" writ petitions in the High Court of Calcutta and Arbitrators were appointed
pursuant to orders passed by the High Court. Since the time to make Award F
had expired, the High Court extended time with consent of parties including
the appellant On 11.11.1997 the Arbitrators filed the Award in the Calcutta
High Court Despite service of notice of filling of the Award upon appellants
nobody appeared on their behalf nor any objections were preferred against
the Award. On 27.1.1998 the High Court passed decree in terms of the Award G
making the same Rule of Court On 24.2.1998 the appellant moved an
application for recalling the order dated 27.1.1998 passed by the High Court,
explaining its absence on the date of hearing and stating that on 29.9.1997 it
had moved an application under Section 14(2) of the Arbitration Act, 1940
before the Assistant District Judge, Asanso~ praying for a direction to the H
Arbitrators to file Awards in the Asansol Court, therefore, award could not
847
848 SUPREME COURT REPORTS [2002] 2 S.C.R.

A be filed in the High Court. By its order dated 23.4.1998 the High court
dismissed.the application on the ground tha~ no objections were filed against
the award. Therefore, the Court had to pass the orders making the Award
Rule of the Court in accordance with Section 17 of the Arbitration Act It
also held that Decree cannot be said to have been passed ex-parte as it was
B with due notice to the appellant It further found that Award was rightly filed
in High Court. The Division Belich dismissed the appeals preferred by
appellant repelling the objections tha~ the High Court could not entertain the
matter. It also held that the appeal was not maintainable before the Divi~ion
Bench against the order of Single Judge of the High Court. Hence these
appeals.
c
Dismissing the appeals, the Court

HELD : 1. No fault can be found with the finding of the High Court
negating the plea raised by the appellant that Arbitrators should have filed
D the Award in the Asansol Courts and not in the High Court of Calcutta.
Calcutta. High Court exercises its original civil jurisdiction as well. The
appellant had not come up with the case that there was any inherent lack of
jurisdiction in the High Court of Calcutta to entertain such suit or
proceedings. The appellant itself had submitted to the jurisdiction of the High
Court while moving application for extension of time under Section 28 of the
E Arbitration Act Despite service of notice, the appellant did not seem to have
moved any application informing the High Court or the respondents that they
had already moved an application before Assistant District Judge, Asansol "·
for a direction to the ArbitratOrs to file the Award in that Court or indicating
any reservation about filing of the Award in the High Court. It has now here
F been indicated by the appellant that the Court of Assistant District Judge,
Asansol had ever issued any notice on the application filed by Union of India
or any direction to the Arbitrators as prayed. The orders were passed by the
High Court on 24.2.1997 and 28.7.1997 extending the time that is to say much
before the appellant moved application in the Court of the Assistant District
Judge, Asansol for a direction to the Arbitrator to file the Award in Asansol.
G In the above circumstances, it cannot be said that the High Court of Calcutta
could not entertain the filing of the Award and to proceed with making it a
Rule of the Court. [853-A-B; 852-G-H]

2. Section 39 of the Arbitration Act enumerates the orders against which
H alone an appeal would lie and against no other order. Prohibition against
appeal is provided in two ways - one where it is indicated that appeal would
U.0.1. v. ARADHANA TRADING CO. 849
·~ lie against given orders and from no other orders and secondly under sub- A
section (2) of Section 39 that n~ second appeal shall lie from an order passed
. in appeal under Section 39 of the Arbitration Act (854-D-E; 855-BJ

3. In the present case it is not a further appeal or a second appeal but
an appeal against an order passed by Single Judge under order IX Rule 13
CPC. It would however be relevant for the purpose that restriction on appeal B
under Section 39 of Arbitration Act shall be applicable to appeals under any
provision of law, may be CPC or Letters Patent (856-A-BJ

4. A Court while exercising power by virtue of Section 41 of the
Arbitration Act shall have all other related powers of the ordinary civil court C
subject to the constraints contained in the special Act itself. Normally, an
appeal would be maintainable but there are two constraints as provided under
the Special Act namely, it should not be a second appeal as provided under
sub-section (2) of Section 39 of the Act There is yet another constraint as
provided under sub-section (1) of Section on 39 of the Arbitration Act itself
and it is emphatic too when it says that appeal shall lie against the orders D
indicated in the provision and from no other order. Section 41 of the
Arbitration Act makes the provision of CPC applicable subject to the
provisions of the Arbitration Act and the rules framed thereunder. Therefore,
the nature of an order against which an appeal may lie must conform to the
nature of the order as enumerated under sub-section (1) of Section 39 of the
Arbitration Act If it does not amount to such an order as enumerated under E
sub-section (1) of section 39, the prohibition as contained in this sub-section
("against no other order") itself, would become operative, subject to which
alone provisions of CPC apply under Section 41 of the Act
(858-G-H; 859-A-BJ
F
5. An order refusing to recall an order passed by the Court will not
amount to refusal to set aside the award under clause (vi) of sub-section (1)
of Section 39 of the Arbitration Act as no objections to set aside the award
have ever been filed with or without application for condonation of delay,
challenging the award. Admittedly, the appellant did not file any appeal
against the order dated 27.1.1998. No objections to the award had been filed G
despite due notice, nor even subsequently while counsel is said to have been
attending the Court on two dates fixed in the case. The order passed by Single
Judge rejecting the application for recalling/setting aside ex-part order dated
27.1.1998 cannot be treated as an order refusing to set aside the award.
[859-B-C; 857-CJ H
850 SUPREME COURT REPORTS [2002) 2 S.C.R.

A Neelkantha Shidramappa Ningashetti 'v. K_ashinath Somanna Ningashetti and
Ors., [1962) 2 SCR 551 and Union ofIndia v. Mahindra Supply Company, [1962)
3 SCR 497, relied on.

Natio'rzal Sewing Thread Company Ltd v. James Chadwick and Bros. Ltd
[1953) SCR 1028, distinguished.
B
State of West Bengal v. Gouranga/al Chetterjee, [1993) 3 SCC 1; Union
ofIndia and Ors. v. Manager, Mis Jain and Associates. [2001) 3 SCC 277; Essar
Constructions v. Ramakrishna Reddy [2000) 6 SCC 94 and Vinita M Khanolkar
v. Pragna M Pal and Ors., [1998) 1 SCC 500, referred to.

C CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 981-993
of 2000.

From the Judgment and Order dated 19.3.99 of the Kolkata High Court
in A.P.O.T. No. 30 to 42/98 in G.A. No. 3477 and 3493 to 3504 of 1998.

Mukul Rohtagi, Additional Solicitor General and Ranjit Kumar, Ms.
D Binu Tamta, Ms. Niranjana Singh and Ms. Anil Katiyar for the Appellants.

Jaideep Gupta and K.V. Vijaya Kumar for the Respondents.

The Judgment of the Court was delivered by :

BRIJESH KUMAR, J. These appeals arise out of the judgment and
E Order dated 19 .3 .1999 passed by the Division Bench of Calcutta High Court
in a bunch of appeals preferred by the present appellant before us.

We have heard the learned counsel for the parties. The main question
that falls our consideration in these appeals is about the maintainability of
appeal before the Division Bench against the judgment and order of the
F learned Single Judge of the Calcutta High Court, rejecting the application
under order 9. Rule 13 CPC for setting aside the ex-parte decree making the
Award Rule of the Court. The other question is as to whether the High Court
was justified in entertaining the proceedings for making the award Rule of
the Court since the District Courts of Asansol had also been moved by the
G appellant to issue notice to the Arbitrator, under Section 14(2) of the Arbitration
Act 1940, for filing of the award in the Asansol Court.

It appears that the appellant, namely the Union of India entered into
agreements with the respondents for supply of certain items to the Railways
viz Chittranjan Locomotives. After the supplies, the Department felt that the
H bills of exorbitant amount were being raised by the respondents and an enquiry
U.0.1. v. ARADHANA TRADING CO. [BRIJESH KUMAR, J.] 851

was also set up in that connection. Since however, payments were not being A
made, the respondents filed writ petitions in Calcutta High Court for direction
to the Government to make payment of bills. The High Court passed a common
order dated 24.11.1995 in the writ petitions, directing the General Manager
to appoint arbitrators to settle the disputes, consequently on December 12, 1995
four Arbitrators were appointed. Parties filed their respective claims before
the Arbitrators and put forth their pleas and placed the interim report of the B
Committee regarding rates of 42 items involved in various purchases made
under different agreements. Since the time to make the Award had expired,
- -' the High Court on being approached by the parties, extended time with their
consent; for a period of two months, by order dated 4 .2.1997. The Awards
were published by Arbitrators on 14.8.1997 sending notices of the same to C
the parties. The Awards had been filed by the Arbitrators in the Calcutta
High Court on l l.11.1997. Notices of the filing of the Award had also been
issued by the High Court which were served upon the appellants on 11.12.1997.
The appellants did not file any objection against the Award. The case was
fixed on 27.1.1998. It appears that nobody appeared on behalf of the Appellant
>-- despite notice and since no objections too, were preferred by them against the D
award, the High court passed Decree in terms of the Award making the same
Rule of the Court.

The Appellant moved an application on 24.2.1998 for recalling the
order dated 27. l.1998 passed by the High Court, explaining its absence on E
the date of hearing and stating that it had moved an application on 29.9.1997
under section 14(2) of the Arbitration Act 1940 before the Assistant District
Judge, Asansol, praying for a direction to the Arbitrators to file Awards in
the Asansol Courts, therefore awards could not be filed in the High Court.

It may be noted that no appeal was preferred against order and decree F
dated 27 .1.1998 passed by the learned Single Judge. The High Court however,
dismissed the application by order dated 23.4.1998, finding that since no
objections were filed against the Award, the court had to pass the Orders
making the Award Rule of the Court in accordance with Section 17 of the
Arbitration Act It also had been observed that Decree cannot be said to have

- been passed ex-parte as it was with due notice to the appellant and that on G
passing of the order according to Section 17 of the Arbitration Act, the Court
had become functus officio. It was also found that Award was rightly filed
in High Court. The appellant then filed appeals before the Division Bench
against the order dated 23 .4.1998 passed by the single Judge. The Division
Bench dismissed the appeals repelling the objections that the High Court H
852 SUPREME COURT REPORTS (2002] 2 S.C.R.

. A could not entertain the matter and also found that the appeal was not
maintainable before the Division Bench against the order of Single judge of
the High Court.

Coming to the question as to whether the arbitrators could file the
award under Section 14(2) of the Arbitration Act 1940 in the High Cowt of
B Calcutta or not, it has been submitted on behalf of the appellant that the
subject-matter of arbitration viz. supplies, have been made to Chitranjan
Locomotive which is situate in District of Asansol. Therefore, it was only
appropriate for the arbitrator to have filed the award in the District Court of.
Asansol. A reference has again been made to the application dated 24.9.1997
C moved before the Assistant District Judge, Asansol for directions to the
Arbitrators requiring them to file the award in original with all records' and
documents within the time as may be fixeg by the Court in Asansol. It has
no where been indicated by the appellant that the Court of Assistant District
Judge, Asansol had ever issued any notice on the aforesaid application or any
direction to the Arbitrators as prayed. On the other hand, the award was
D undisputedly filed in the High Court on 11.11.1997 in respect whereof notice
was issued, which was received by the appellant on 11.12.1997. Despite
service of notice, the appellant did not seem to have moved any application
infonning the High Court or the respondents that they had already moved
any application before Assistant District Judge, Asansol for a direction to the
E Arbitrators to file the award in that Court or indicating any reservation about
filling of the award in the High Court.

Besides the above. it is to be noticed that the Arbitrators were appointed
in pursuance of an order passed by the High Court on the writ petitions filed
by the respondents as a consequence whereof the Arbitrato~s proceeded in
F the matter and finally published the award. On two occasions earlier, the
parties including the appellant had approached the High Court only for
extension of time for making the award. The orders were passed by the High
Court on 24.2.1997 and 28.17.1997 extending the time is to say much before
the appellant moved application in the Court of the Assistant District Judge,
Asansol for a direction to the Arbitrator to file the award in Asansol. In the '·
G above circumstances, it is too late in the day for the appellant to tum around
and say that the High Court of Calcutta could not entertain the filing of the .,,.,-·
award and to proceed with making it a rule of the court. Needless to mention
that Calcutta High Court exercises its original civil jurisdiction as well.
Therefore, perhaps the appellant has not come up with the case that there was
..
H any inherent lack of jurisdiction in the High Court of Calcutta to entertain
U.0.1. v. ARADHANA TRADING CO. [BRIJESH KUMAR, J.] 853

such suit or proceedings. As indicated earlier the appellant itself had submitted A
to the jurisdiction of the High Court while moving application for extension
of time under Section 28 of the Arbitration Act. We therefore do not find any
fault in the finding of the High Court negating the plea raised by the appellant
that Arbitrators should have filed the Award in the Asansol courts and not in
the High Court.
B
We may next consider the nature of the application moved by the
appellant for recalling the order dated 27.1.1998 passed by the learned Single
Judge of the Calcutta High Court. The application dated February 24, 1998
does not· indicate the provision of law under which it was moved. The
averments made i.n the application are to the effect that the appellant had C
received a notice from the Registry of the High Court in the original civil
jurisdiction informing that January 21, 1998 was fixed in the case. The case
however, it is stated, was fixed on 22.1.1998. The counsel for the appellant
remained in the Court concerned throughout the day but the matter was not
taken up. The next date fixed was January 27, 1998 on which date also the
counsel for the appellant was present in Court up to 12 Noon whereafter he D
got engaged in another Court. Therefore, he could not be present at the time
when the case ·was called out and the order was passed by the Court. The
counsel for the appellant made a mention about the matter in the Court on
4.2.1998 and later moved an application in that behalf stating that there was
sufficient ground for not being present at the time, the matter was called E
upon on 27.1.1998 and ex-parte order was passed.

The following prayers were made in the application:

(a) The order dated 27th January 1998 passed ex-parte may be
recalled;
F
(b) Case may be restored to its file and may be fixed for hearing as
"Judgment upon Award" in suitable date which is convenient for
your lordship so that the petitioner may take necessary steps to
challenge the Award;
(c) Any other order or orders as yours lordships may deem fit and G
proper"
It is submitted that it would be treated as an application under Order IX, Rule

- 13 C.P.C. in view of Section 41 of the Arbitration Act which reads as under:

"41. Procedure and powers of the Court,-Subject to the provisions
of this Act and of rules made thereunder- H
-
85.4 SUPREME COURT REPORTS [2002] 2 S.C.R.

A {a) the provisions of the Code of Civil Procedure, 1908 shall apply
to all proceedings before the Court, and to all appeals, under this
Act, and

(b) the Court shall have, for the purpose of, and in relation to,
arbitration proceedings, the same power of making orders in
B respect of any of the matters set out in the Second Schedule as
it has for the purpose of, and in relatiQ.n to, any. proceedings
before the Court:

Provided that nothing in clause (b) shall be taken to prejudice any
power which may be vested in an arbitrator or umpire for making
c orders with respect to any of such matters."

It is thus submitted that subject to the provisions of the Arbitration Act,
provisions of the Code of Civil Procedure would apply to all proceeding
before the Court and the appeals under the Act. Even taking it to be so, the
rival contention of the Respondents is that no appeal will lie against the order
D of the Single Judge dated 23.4.1998. rejecting the application. Section 39 of
the Arbitration Act enumerates the orders against which alone an "appeal
would lie and agains? no other order. Section 39 of the Arbitration Act 1940
reads as under:

"39 Appealable orders.-(1) An appeal shall lie from the following
E
orders passed under this Act (and from no others) to the Court
authorised by law to hear appeals from original decree of the Court
passing the orders:- ·

An order-
F (i) superseding an arbitration;
(ii) on an award stated in the form of a special case;
(iii) modifying or correcting an award;
G (iv) filing or refusing to file an arbitration agreement;
(v) staying or refusing to stay legal proceedings where there is an
arbitration agreement;
(vi) setting aside or refusing to set aside an award.

H Provided that the pr,ovisions of this section shall not apply to any
U.O.l. v. ARADHANA TRADING CO. [BR!JESH KUMAR, J J 855
order passed by a Small Cause Court. A
(2) No second appeal shall lie from an order passed under this section
but nothing in this section shall affect or take away any right to
appeal to [the Supreme Court]".

We find that prohibition against appeal is provided in two ways-One B
where it is indicated that appeal would lie against given orders and from no
other orders and secondly under sub-section (2) of Section 39 that no second
- 4. appeal shall lie from an order• passed in appeal under Section 39 of the
Arbitration Act. In the alternate, the Appellants' contention is that in any case
a Letters Patent Appeal would lie against the original orders of the Single C
Judge of the High Court to a Division Bench. A number of decision have
been relied upon by the learned counsel for the parties in support of their
rival contentiOns.

Learned counsel for the Respondents has placed reliance upon a decision
reported in [1962] 2 SCR 551 Neeilkantha Shidramappa Ningashetti v. D
Kashinath Somanna Ningashetti and Ors. It is a decision by a Bench of Four
Judges. The parties knew about the filing of the award in the Court and on
the date fixed the case was adjourned for "the parties' say to the arbitrator's
report". No notice in writing was issued by the Court of the filing of the
award or objections thereto. The objections were filed late beyond the time E
prescribed by limitation. The court made the award rule of the Court. The
plea which was taken was that the period of limitation would start from the
date of service in writing of filing of the award. Such a contention was not
accepted by the court and it was held that notice in writing was not necessary
as the information to the parties of the award having been filed and date
adjourned for their say to the arbitrator's report was sufficient notice. It was F
held that award was not liable to be set aside and no appeal was maintainable
under Section 39(/) (vi) of the Arbitration Act. In State of West Bengal v.
Gourangalal Chatterjee, [1993] 3 S.C.C. 1 the appeal under Section 39 was
held to be not maintainable against an order passed by the Single Judge
appointing a new arbitrator since the order was not covered under any of the
clauses of Section 39 nor even Letters Patent Appeal was held to be G

-
maintainable. In Union of India v. Mahindra Supply Company, [ 1962] 3
S.C.R. 497, a decision by a Bench of Four Judges, held that Section 39
applies to the ·appeals to superior courts as well as to intra-court against the
decree passed in terms of the award but against the order passed in appeal,
a Letters Patent Appeal was held to be barred under sub-section (2) of Section H
856 SUPREME COURT REPORTS [2002] 2 S.C.R.

A 39 of the Arbitration Act according to which no second appeal lies against
an order passed under Section 39(1) of the Act. It was further held that in
view of the said provision, appeal under Section 100 CPC was also prohibited.
We, however, find that so far as this case is concerned, it stands on a different
footing since in the present case it is not a further appeal or a second appeal
but an appeal against an order passed by the learned Single Judge under
B Order IX Rule 13 CPC. It would however be relevant for the purpose that
restriction on appeal under Section 39 of Arbitration Act shall be applicable
to appeals under any provision of law, may be CPC or Letters Patent.

So far the appellants are concerned they placed reliance on a case
C reported in [l 953) S.C.R. 1028 National Sewing Thread Company Limited v.
James Chadwick and Bros. Ltd. It is a decision by a three Judge Bench. In
this case the proceedings related to the Trade Marks Act containing a provision
of appeal of the High Court under Section 76(1) of the Act against an order
of the Registrar. It however contained no provision regarding procedure to be
followed by the High Court or as to whether the order passed by the High
D Court was further appealable or not. It was held that the High Court was to
exercise the appellate power in the same manner as it exercise its other
appellate jurisdiction and where such jurisdiction was exercised by a Single
Judge, his judgment was appealable under clause 15 of the Letters Patent.
The Court relied upon (1913) A.C. 546 quoting therefrom. "When a question
E is stated to be referred to established Court without more-Ordinary instance
of the procedure of that court are to attach and also that any general right of
appeal from its decision like-wise attaches." It also refers to (1947) 74 I.A.
Page 264 quoting. "Where a legal right is in dispute and the ordinary courts
of the country are seized of such dispute, the courts are governed by the
ordinary rules of procedure applicable there to and an appeal lies if authorised
F by such rules, notwithstanding that the legal right claimed arises under a
special statute, which does not, in terms confer a right of appeal". In Union
of India and Ors. v. Manager, Mis. Jain & Associates, [2001] 3 SCC 277 it
was held that by virtue of Section 41 of the Arbitration Act, Order IX of the
C.P.C. would be applicable and an application under Order IX, Rule 13 CPC
G would lie and delay could be condoned under Section 5 of the Limitation Act
in filing objections under Section 30 of the Arbitration Act. The refusal to
condone the delay amounts to refusal to set aside the award and the orders
become appealable under Section 39 (I)( vi) of the Act. A similar view was
taken in Essar Constructions v. Ramakrishna Reddy, [2000]·6 SCC 94.

H On behalf of the appellant, reliance has also been placed in Vinita M
U.O.l. v. ARADHANA TRADING CO. [BRIJESH KUMAR, J.] 857

Khanolkar v. Pragna M Pal and Ors., [1998] I S.C.C. 500. In this case the A
:-- >( High Court had passed an order in exercise or its original jurisdiction under
-,
Section 6 of the Specific Relief Act. An appeal filed before the Division
Bench was held to be maintainable under Clause 15 of the Letters Patent as
it was held that such powers are vested in the High Courts of Madras, Bombay
and Calcutta which are not whittled down by statutory provisions of Section
6 (3) of the Specific Relief Act. It was observed that power is in pursuance B
of Section I 08 of the Govt. of India Act. It is a decision by a Bench of two
learned Judges.
-
"' So far the question as to whether the order passed by the learned Single
Judge rejecting the application for recalling/setting aside ex parte order dated
27 .1.1998 is concerned, it cannot be treated as an order refusing to set aside
c
the award. This position would stand covered by the decision in the case of
Neeilkantha Shidramappa Ningashetti (supra) as it has been held if there was
no objection before the court for setting aside the award, no question of
refusal to set it aside could arise. Hence no appeal under Section 39(l)(vi)
of the Arbitration Act would be maintainable. The ground of challenge of the D
award was that the limitation to file the objection was to run with effect from
the date of service of a written notice for filing of the objection which
contention was repelled by the Bench consisting of four Hon'ble Judge holding
that the knowledge of the appellant of the award having been filed and time
'• allowed to file objections was sufficient notice. In the present case also it is
to he found that no objections to the award had been filed despite due notice
E
and nor even subsequently while counsel is said to have been attending the
court on two dates fixed in the case. In this view of the matter it would not
be necessary to go into other aspect of the matter of the view taken in some
other cases as referred to in the earlier part of the judgment. Some cases, a
reference of which has been made earlier relate to the question of F
maintainability of a second appeal in Letters Patent against the appellate
order passed under Section 39(1) of the Arbitration Act as in the case of
Mahindra Supply Company (supra) where the Bench of four Hon'ble Judges
held that in view of clause (2) of Section 39 of the Arbitration Act, an appeal
against an appellate order under the Letter Patent was not maintainable. The
restriction to appeal contained under sub-sec. (2) of Section 39 was applicable G
~
to Letters Patent. So restriction contained under sub-sec. (l) of Sec. 39 of
Arbitration Act shall also be applicable.

- The question which thus remains to be considered is as to whether an
order passed on an application making the prayer like one which could be
H
858 SUPREME COURT REPORTS (2002] 2 S.C.R.

A referable to Order IX, Rule 13 CPC would be appealable or not. Such an
application could be made by virtue of Section 41 of the Arbitration Act. An
. order under Order IX, Rule 13 CPC is appealable under Order 43, clause (c)
read with Section I 04 CPC. In the case of National Sewing Thread Co. Ltd
(supra) a decision by a Bench of Three Hon 'ble Judges, the matter related to
B Trade Marks Act Section 76(1) of which provided of an appeal against a
decision of the Registrar under the Act to the High Court but no further
provision in regard to the procedure to be applied was made. An appeal
against the order of the Registrar was decided by a learned Single Judge o°f
the High Court against which a Letters Patent Appeal was filed which was
held to be maintainable even though no such provision of further appeal was
C made under the Trade Marks Act. As indicated earlier the Court in the above-
noted case has relied upon certain decision and held as follows:

"Though the facts of the cases laying down the above rule were not
exactly similar to the facts of the present case, the principle enunciated
therein is one of general application and has an apposite application
D to the facts and circumstances of the present case. Section 76 the
Trade Marks Act confers a right of appeal to the High Court and says
nothing more about it. That being so, the High Court being seized at
such of the appellate jurisdiction conferred by section 76 it has to
exercise jurisdiction in the same manner as it exercise its other appellate
E
jurisdiction and when such jurisdiction is exercised by a Single Judge,
his judgment becomes·subject to appeal under clause 15 of the Letters ..
Patent there being nothing to the contrary in the Trade Marks Act"

In view of what has been held above a Court while exercising power by
virtue of Section 41 of the Arbitration Act shall have all other related powers
F of the ordinary civil court subject to the constraints contained in the special
Act itself. Normally, an appeal would be maintainable but there are two
constraints as provided under the Special Act, namely, it should not be a
second appeal as provided under sub-section (2) of Section 39 of the Act
which position is also clear in the case of Mahindra Supply Company (supra)
where it was held that the second appeal under Section 100 CPC or under the
G Letters Patent against an appellate order was barred by virtue of sub-section
(2) of Section 39. Here we find that there is yet another constraint as provided
under sub-section (l) of Section 39 of the Arbitration Act itself and it is
emphatic too when it says that appeal shall lie against the orders indicated in
the provision and from no other order. Section 41 of the Arbitration Act
H makes the provisions of CPC applicable subject to the provisions of the
U.0.1. v. ARADHANA TRADING CO. [BRIJESH KUMAR, J.] 859

Arbitration Act and the rules framed thereunder. Therefore, the nature of an A
order againsi which an appeal may lie must conform. to the nature of the
order as enumerated under sub-section (I) of Section 39 of the Arbitration
Act. If it does not amount to such an order as enumerated under sub-section
(!) of Section 39, the prohibition as contained i11 this sub-section "(against
no other order") itself, would become operative, subject to which alone
provisions of CPC apply under Section 41 of the Act. In the facts of the B
present case we find that an order refusing to recall an order passed by the
court will not amount to refusal to set aside the award under clause (vi) of
sub-section (!) of Section 39 of the Arbitration Act as no objections to set
aside the award have ever been filed with or without application for
condonation of delay, challenging the award. Admittedly, the appellant did C
not file any appeal against the order dated 27.1. I998. In these circumst_ances
and in view of the provisions of the Arbitration Act, the decision in the case
of National Sewing Thread Co. Ltd (supra) shall also not be applicable as in
the Trade Marks Act with which the court was dealing, did not have .any
provision like the one contained in sub-section (I) of section 39 of the
Arbitration Act restricting the right of appeal only in respect or certain D
nature of orders and prohibiting appeal against any other order whatsoever.
Therefore, in the case of National Sewing Thread Co. ltd (supra) it was held
that where a provision for appeal was made under Section 76(1) of the Trade
Marks Act to the High Court, with nothing more, the other provisions relating
to exercise of that jurisdiction by the High Court would be applicable. The E
case of National Sewing Thread Co. Ltd (supra) is thus based on different
provisions and is clearly distinguishable. The case in hand is covered by the
decisions in the cases of Neeilkantha (supra)and Mahindra Supply Co. both
decided by Bench of four Judges which do not seem to have been noticed in
other judgments.
F
In view of the discussion held above, we find no force in the appeals
and they are dismissed. There would however be no order as to costs.

T.N.A Appeals dismissed.