18 May 2021, Tuesday

2 months ago

1.The scope of the court’s appellate powers under Section 37 (2) (a) ACA? (Delhi High Court)

18 May 2021 | Raghuvir Buildcon Private Ltd. v. IRCON International Limited | Arb. A. (COMM) 15 of 2021 | C Hari Shankar J

On the respondent’s application under Section 16 ACA, the arbitrator ruled that some issues were outside the scope of the reference: some arose after the reference, and others were “excepted matter.”

In the appeal, a single judge rejected the argument that the court’s jurisdiction under Section 37 (2) (a) ACA (the appealing provisions) is wider than Section 34 ACA:

  1. Under Section 37 (2), an order by the tribunal “indisputably interlocutory in nature” can be appealed. A final ruling could be assailed in set-aside proceedings [citing Indian Farmers Fertiliser Cooperative Ltd. v. Bhadra Products, (2018) 2 SCC 534]. The scope of interference against interlocutory orders is classically more circumscribed than against a final decision. *
  2. Besides, Section 37 ACA is subject to the discipline of Section 5 ACA. The object of the ACA is to minimise the supervisory role of courts. An appeal against the tribunal’s decision is not akin to an appeal under the Code of Civil Procedure, 1908. It is a sui generis appeal in which interference by the court must be cautious and circumspect.
  3. There is no substantial difference between the principles that must be applied in a set-aside proceeding and appeal. Hence, the court would only examine if there is patent illegality or perversity or if the decision is unconscionable.

Liberty was given to raise the issue of “excepted matter” again “only as the impugned order has been passed at the interlocutory stage.”

Access the judgment here.

* Editor’s note: It is not true that Section 37 (2) (b) permits appeals only against ‘interlocutory’ as opposed to final) orders of the tribunal. The court’s cited authority, Indian Farmers, is on a different point. Section 37 (2) (b) ACA permits appeal against an order accepting the plea that the tribunal does not have jurisdiction (as provided by Section 16 (2) ACA) or a plea that the tribunal is exceeding the scope of its authority (as provided by Section 16 (3) ACA). The arbitrator had ruled that a claim was time-barred. If this was a question of jurisdiction, the order was appealable. The Supreme Court said that a decision on the point of limitation does not go to jurisdiction. It was an interim award that could be challenged in set-aside proceedings.

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