| An appeal was filed before the X
Additional City Civil Judge, Bangalore against an interim
order made by the arbitral tribunal under Section 37(2)(b)
of the Act of 1996 and it was dismissed. The learned Counsel
appearing for the Appellant submitted that the right of second
appeal is specifically taken away under Section 37(2)(b) of
the Act of 1996 and therefore by implication it should be
held that even a revision is not maintainable under Section
115 of the CPC. He also pointed out that under Section 5 of
the Act of 1996, there is a bar against judicial intervention
by any judicial authority unless the same is specifically
provided for under Part I of the Act of 1996. He said that
since a revision is not specifically provided for and CPC
is not applicable to proceedings under the Act of 1996, a
revision to the High Court does not lie.
The Supreme Court observed that although the application
of CPC is not specifically provided for in the Act of 1996
for a proceeding arising out of the Act before a civil court,
since there is no express exclusion of CPC it cannot be inferred
that CPC is not applicable to such proceedings before a civil
court. It has been held by the Supreme Court in more than
one case that the jurisdiction of the civil court to which
a right to decide a lis between the parties has been conferred
can only be taken away by a statute in specific terms and
such exclusion of right cannot easily be inferred because
there is always a string presumption that the civil courts
have the jurisdiction to decide all questions of civil nature,
therefore if at all there has to be inference the same should
be in favour of the jurisdiction of the court rather than
the exclusion of such jurisdiction and there being no such
exclusion of the CPC in specific terms except to the extent
stated in Section 37(2), it cannot be inferred that CPC is
not applicable merely because the Act of 1996 has not provided
CPC to be applicable. The same view was held by a three-judge
bench of the Supreme Court in the case of Bhatia International
Vs. Bulk Trading S.A., which said that “ordinarily the
jurisdiction may not be ousted unless the statutory provision
explicitly indicates or even by inferential conclusion that
the court arrives at the same when such a conclusion is the
only conclusion”.
The Supreme Court also observed that the provision for appeal
to a civil court is contained in Section 37 of the Act of
1996. The term “court” is defined in Section 2(e)
of the Act of 1996. From the definition of the court it is
clear that the appeal is not to any person but to a civil
court. In such a situation, the proceedings before such court
will have to be controlled by the provisions of CPC, therefore
the remedy by way of a revision under Section 115 of CPC will
not amount to a judicial intervention not provided for by
Part I of the Act of 1996. In other words, when the Act of
1996 provided for an appeal to a civil court under Section
37 and the application of CPC is not expressly barred, the
revisional jurisdiction of the High Court gets attracted.
If that be so, the bar under Section 5 of the Act of 1996
will not be attracted because conferment of appellate power
on the civil court in Part I of the Act of 1996 attracts the
provisions of CPC also.
The Supreme Court also observed that “it is true that
the power of this court to entertain an appeal directly is
not taken away merely because another remedy is available
but then the question is, should this court encourage litigants
to indulge in hop, skip and jump to reach this court either
for the reason that the remedy from this court would be quick
or more efficacious? The answer, in our opinion, should be
no.”
The appeal was dismissed and the appellant was directed by
the Supreme Court to present a revision petition to the High
Court within 30 days from the date of the judgement and stated
that the same would be entertained by the High Court without
going into the question of limitation, if any.
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