- (1.) This appeal is directed against a judgment and order of the learned single Judge dated 10th September, 2010 by which the application under section (8) of the Arbitration & Conciliation Act, 1996 (in short Act henceforth) for referring the disputes has been rejected. Though the appeal has been admitted for hearing but at the time of admission the point of appealability was kept reserved for decision.Mr. Samit Talukder, Senior Counsel submits that the order refusing to pass order for reference under section (8) of the said Act is not an appealable one within the meaning of section 37 of the said Act. He urges that said Act is a special one and it had got overriding effect over Clause 15, of the Letters Patent of this Court. He urges further that Clause 15 has to be read with Clause 44 of the Letters Patent by which the provision of any other enactment as mentioned in Clause 44 has to be given primacy over Clause 15: Mr. Joydeep Kar, learned counsel appearing for the appellant fairly submits that in view of the provision of law and particularly interpretation of scope and purport of Clause 15 of Letters Patent given by the Supreme Court in the case of (Liverpool & London S.P. & I Association Ltd. v. M.V. Sea success I and Ors., 2004 9 SCC 512the impugned order is not appealable.
(2.) After considering the submission of the learned counsel for both sides on this aspect we are inclined to hold any order passed under section 8 of the Act, 1996 is not an appealable one under Clause 15 of the Letters Patent. As it is rightly submitted by Mr. Talukder that the said Act is a special and comprehensive statute and the same must be read as an enactment within the meaning of Clause 44 of the Letters Patent. Accordingly, it is apposite to set out Clause 44 of the Letters Patent as below: 44 Powers of Indian Legislature preserved.- And We do further ordain and declare, that all the provisions of these Our Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council and also of the Governor-General in Council under section 71 of the Government of India Act, 1915, and also of the Governor-General in cases of Emergency under section 72 of that Act, and may be in all respects amended and altered thereby.
(3.) Section 37 of the said Act has provided category of the orders being appealable. The language of sub section 1 of section 37 is very specific and with a negative import. When any statutory provision carries any negative import the intention of the legislators must be understood that no other idea can be thought of under any circumstances. Accordingly, section 37 of the said Act at its entirety is set out below: 37. Appealable orders.- (1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely: (a) granting or refusing to grant any measure under section 9; (b) 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 of the arbitral tribunal - (a) accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or (b) granting or refusing to grant an interim measure under section 17. (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 any right to appeal to the Supreme Court.;