Arbitration Act is a self contained code; No LPA against non-appealable orders - Supreme Court

Section 50 of the Arbitration and Conciliation Act, 1996 states:

"(1) An appeal shall lie from the order refusing to -

(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 away any right to appeal to the Supreme Court."

In Fuerst Day Lawson Ltd. vs Jindal Exports Ltd., (decided on July 8, 2011), the Supreme Court was faced with the question of whether this provision precludes Letters Patent Appeals.

Before the Court could move on to answering this question, it had to deal with an application placed before it by the petitioners for the transfer of this case to a larger bench. The petitioners referred to  Orma Impex Pvt. Ltd. v. Nissai ASB PTE Ltd., (1999) 2 SCC 541, in which a two-judge bech of the Supreme Court had referred the same question to a three judge bench citing an apparent conflict in precedents. However, before the three judge bech could answer the question the matter was compromised. The Court held that Orma Impex was not a binding precedent as the matter was compromised before a decision could be reached. As to the conflict referred to in Orma Impex, the Court drew a distinction between the statutory schemes of Part I and Part II of the Act. While the opening language of Section 37 and Section 50 of the 1996 Act is similar to that of Section 39 of the 1940 Act, only Section 37 (and not Section 50) is similar in its statutory scheme and object and purpose to Section 39 of the 1940 Act. Hence, judgments rendered on whether Section 39 of the 1940 Act excluded Letters Patent Appeals was not relevant in interpreting Section 50.

Before going on to determine whether the current statutory framework excludes Letters Patent Appeals, the Court lays down several 'broad principles' gathered from precedents:

"1. Normally, once an appeal reaches the High Court it has to be determined according to the rules of practice and procedure of the High Court and in accordance with the provisions of the charter under which the High Court is constituted and which confers on it power in respect to the method and manner of exercising that power.


2. When a statute merely directs that an appeal shall lie to a court already established then that appeal must be regulated by the practice and procedure of that court.


3. The High Court derives its intra-court appeal jurisdiction under the charter by which it was established and its powers under the Letters Patent were recognized and saved by section 108 of the Government of India Act, 1915, section 223 of the Government of India Act, 1935 and finally, by Article 225 of the Constitution of India. The High Court, therefore, cannot be divested of its Letters Patent jurisdiction unless provided for expressly or by necessary intendment by some special statute.


4. If the pronouncement of the single judge qualifies as a "judgment", in the absence of any bar created by a statute either expressly or by necessary implication, it would be subject to appeal under the relevant clause of the Letters Patent of the High Court.


5. Since section 104(1) CPC specifically saves the letters patent appeal it could only be excluded by an express mention in section 104(2). In the absence of any express mention in section 104(2), the maintainability of a letters patent appeal is saved by virtue of section 104(1).


6. Limitation of a right of appeal in absence of any provision in a statute cannot be readily inferred. The appellate jurisdiction of a superior court cannot be taken as excluded simply because a subordinate court exercises its special jurisdiction.


7. 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 word "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 barred."

Based on these 'broad principles' the Court goes on to hold that a Letters Patent Appeal would stand excluded under the present statutory scheme of Section 50.

For this proposition, the Court advances two independent reasons -

1. Under Section 6(2) the Foreign Awards (Recognition and Enforcement) Act, 1961, all appeals including LPAs were barred except where an enforcing court issued a decree which was in excess of the award which was being enforced. In the present statutory scheme, no decree in terms of the award is necessary for a foreign award to enforced. By doing away with this procedural requirement, the statute has also done away with the possibility that a decree in excess of the award can be issued and hence has removed the only limited ground on which a LPA could have been entertained under the 1961 Act. "It would be futile, therefore, to contend that though the present Act even removes the limited basis on which the appeal was earlier maintainable, yet a Letters Patent Appeal would lie notwithstanding the limitations imposed by section 50 of the Act. The scheme of sections 49 and 50 of the 1996 Act is devised specially to exclude even the limited ground on which an appeal was earlier provided for under section 6 of the 1961 Act."

2. The Arbitration and Conciliation Act is a self contained code. "It is, thus, to be seen that Arbitration Act 1940, from its inception and right through 2004 (in P.S. Sathappan) was held to be a self-contained code. Now, if 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 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 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."