AMAZON.COM NV INVESTMENT HOLDINGS LLC versus FUTURE RETAIL LIMITED & ORS.

AMAZON.COM NV INVESTMENT HOLDINGS LLC

FUTURE RETAIL LIMITED & ORS.

(Civil Appeal Nos. 4492-4493 of 2021)

AUGUST 06, 2021

[R. F. NARIMAN AND B. R. GAVAI, JJ.]

Arbitration and Conciliation Act, 1996:

ss. 17(1) and (2) – Interim measures ordered by arbitraltribunal – “Award” by Emergency Arbitrator under the ArbitrationRules of the Singapore International Arbitration Centre – Seat ofarbitral proceedings in India and governed by SIAC Rules – Saidaward, if an order u/s. 17(1) – Held: Award by Emergency Arbitratorunder SIAC Rules can be said to be an order u/s. 17(1) – Full partyautonomy is given by the Arbitration Act to have dispute decidedin accordance with institutional rules which can include EmergencyArbitrators delivering interim orders, described as “awards” – Suchorders aid of decongesting the civil courts and affording expeditiousinterim relief to the parties – Such orders are referable to and aremade u/s. 17(1) –Arbitration Rules of the Singapore InternationalArbitration Centre.

s. 37 – Appealable orders – Order passed u/s. 17(2) inenforcement of the award of an Emergency Arbitrator by SingleJudge of the High Court – Appeal thereagainst u/s. 37 – Held: Noappeal lies u/s. 37 against an order of enforcement of an EmergencyArbitrator’s order made u/s. 17(2) of the Act.

Arbitration Rules of the Singapore International ArbitrationCentre: r. 1.3 – Term Emergency arbitration – Explanation of –Held: Reading of the SIAC Rules indicates that even before anarbitral tribunal is constituted under the Rules, urgent interim reliefscan be granted by an “Emergency Arbitrator” –An EmergencyArbitrator as defined by r. 1.3 means an arbitrator in accordancewith paragraph 3 of Schedule 1 – Emergency Arbitrator has all thepowers vested in the arbitral tribunal pursuant to SIAC Rules,including the authority to rule on his own jurisdiction – EmergencyArbitrator has the power to order such interim relief that he deems

Anecessary, and is to give summary reasons for his decision in writing– Once the arbitral tribunal is constituted under paragraph 10, thetribunal may reconsider, modify, or vacate any such interim order –Such interim order or award issued by the Emergency Arbitratorwould continue to bind the parties unless it is modified or vacatedby the arbitral tribunal, once it is constituted, until the tribunalBmakes final award or until the claim is withdrawn.

Code of Civil Procedure, 1908: Ord XLIII, r. 1(r) – Appealsfrom orders – Maintainbility of appeal under Ord. XLIII, r. 1(r),when enforcement order of the award of an Emergency Arbitratormade under Arbitration Act – Explained.C

Disposing of the appeals, the Court

HELD: 1.1 reading of sections 2(6), 2(8), 19(2) and 21 ofthe Arbitration and Conciliation Act, 1996 would show that anarbitration proceeding can be administered by permanentDarbitral institution. Importantly, Section 2(6) makes it clear thatparties are free to authorise any person including an institutionto determine issues that arise between the parties. Also, underSection 2(8), party autonomy goes to the extent of an agreementwhich includes being governed by arbitration rules referred to inthe aforesaid agreements. Likewise, under Section 19(2), partiesEare free to agree on the procedure to be followed by an arbitraltribunal in conducting its proceedings. Section 21 provides thatarbitral proceedings in respect of particular dispute commenceon the date on which request for that dispute to be referred toarbitration is received by the respondent. This Section isFexpressly subject to agreement by the parties. [Paras 11, 12][801-E-H]1.2 By agreeing to the application of the Arbitration Rulesof the Singapore International Arbitration Centre (SIAC Rules),the arbitral proceedings in the instant case can be said to haveGcommenced from the date of receipt of complete notice ofarbitration by the Registrar of the SIAC, which would indicatethat arbitral proceedings under the SIAC Rules commence muchbefore the constitution of an arbitral tribunal under the said Rules.This being the case, when Section 17(1) uses the expression

“during the arbitral proceedings”, the said expression would beelastic enough, when read with the provisions of Section 21 ofthe Act, to include emergency arbitration proceedings, which onlycommence after receipt of notice of arbitration by the Registrarunder Rule 3.3 of the SIAC Rules. conjoint reading of theseprovisions coupled with there being no interdict, either expressor by necessary implication, against an Emergency Arbitratorwould show that an Emergency Arbitrator’s orders, if providedfor under institutional rules, would be covered by the ArbitrationAct. [Paras 12, 13][802-C-F]

Antrix Corporation Ltd. v. Devas Multimedia Pvt. Ltd.(2014) 11 SCC 560 : [2013] 6 SCR 453; BharatAluminium Co. v. Kaiser Aluminium Technical ServicesInc. (2016) 4 SCC 126 : [2016] 1 SCR 364; PASL WindSolutions Pvt. Ltd. v. GE Power Conversion India Pvt.Ltd. 2021 SCC OnLine SC 331; National HighwaysAuthority of India v. M. Hakeem 2021 SCC OnLineSC 473 – referred to.

1.3 The parties to the contract, in the instant case, byagreeing to the SIAC Rules and the award of the EmergencyArbitrator, have not bypassed any mandatory provision of theArbitration Act. There is nothing in the Arbitration Act thatprohibits contracting parties from agreeing to provisionproviding for an award being made by an Emergency Arbitrator.On the contrary, when properly read, various Sections of the Actwhich speak of party autonomy in choosing to be governed byinstitutional rules would make it clear that the said rules wouldapply to govern the rights between the parties, position which,far from being prohibited by the Arbitration Act, is specificallyendorsed by it. [Para 17][807-G-H; 808-A-B]

Centrotrade Minerals & Metal Inc. v. Hindustan CopperLtd.(2017) 2 SCC 228:[2016] 9 SCR 83 -distinguished.

1.4 There can be no doubt that the “arbitral tribunal” asdefined in Section 2(1)(d) speaks only of an arbitral tribunal thatis constituted between the parties and which can give interimand final relief, “given the scheme of the Act”, as contained in

Athe aforementioned Sections. However, like every other definitionsection, the definition contained in Section 2(1)(d) only applies“unless the context otherwise requires”. Given that the definitionof “arbitration” in Section 2(1)(a) means any arbitration, whetheror not administered by permanent arbitral institution, when readwith Sections 2(6) and 2(8), would make it clear that even interimBorders that are passed by Emergency Arbitrators under the rulesof permanent arbitral institution would, on proper reading ofSection 17(1), be included within its ambit. It is significant tonote that the words “arbitral proceedings” are not limited by anydefinition and thus encompass proceedings before an EmergencyCArbitrator with reference to Section 21 of the Act read with theSIAC Rules. [Para 19][808-F-H; 809-A]1.5 The heart of Section 17(1) is the application by partyfor interim reliefs. There is nothing in Section 17(1), when readwith the other provisions of the Act, to interdict the applicationDof rules of arbitral institutions that the parties may have agreedto. This being the position, at least insofar as Section 17(1) isconcerned, the “arbitral tribunal” would, when institutional rulesapply, include an Emergency Arbitrator, the context of Section17 “otherwise requiring”-the context being interim measuresthat are ordered by arbitrators. The same object and contextEwould apply even to Section 9(3) which makes it clear that thecourt shall not entertain an application for interim relief once anarbitral tribunal is constituted unless the court finds thatcircumstances exist which may not render the remedy providedunder Section 17 efficacious. Since Section 9(3) and Section 17Fform part of one scheme, it is clear that an “arbitral tribunal” asdefined under Section 2(1)(d) would not apply and the arbitraltribunal spoken of in Section 9(3) would be like the “arbitraltribunal” spoken of in Section 17(1) which would include anEmergency Arbitrator appointed under institutional rules.[Para 20][809-B-E]GFirm Ashok Traders v. Gurumukh Das Saluja (2004) 3SCC 155:[2004] 1 SCR 404 – referred to.

1.6 Even if section 25.2 of the FCPL Shareholders’Agreement (pari materia with section 15.2 of the FRLHShareholders’ Agreement) makes the SIAC Rules subject to the

Arbitration Act, the said Act, properly construed, would includean Emergency Arbitrator’s awards/orders, there being nothinginconsistent in the SIAC Rules when read with the Act. Rule 1.3of the SIAC Rules indicates that an award of an EmergencyArbitrator is included within the ambit of these Rules, and thatan Emergency Arbitrator, as defined, means an arbitratorappointed in accordance with paragraph 3 of Schedule 1. Thismakes it clear beyond doubt that “arbitration” mentioned insection 25.2 of the FCPL Shareholders’ Agreement would includean arbitrator appointed in accordance with the SIAC Rules which,in turn, would include an Emergency Arbitrator. The SIACRules deal with the concept of an Emergency Arbitrator.[Paras 22-24][811-C-F]

1.7 reading of the SIAC Rules indicates that even beforean arbitral Tribunal is constituted under the Rules, urgent interimreliefs can be granted by what is termed as an “EmergencyArbitrator”. An “Emergency Arbitrator” is defined by Rule 1.3of these Rules as meaning an arbitrator in accordance withparagraph 3 of Schedule 1. Under paragraph 7 of Schedule 1, theEmergency Arbitrator has all the powers vested in the arbitraltribunal pursuant to SIAC Rules, including the authority to ruleon his own jurisdiction. Importantly, under paragraph 8 of Schedule1 to the SIAC Rules, the Emergency Arbitrator shall have thepower to order such interim relief that he deems necessary, andis to give summary reasons for his decision in writing. Underparagraph 9, the interim order is to be made within 14 days of hisappointment, unless time is extended. Importantly, once thearbitral tribunal is constituted under paragraph 10, the tribunalmay reconsider, modify, or vacate any such interim order. Suchinterim order or award issued by the Emergency Arbitrator willcontinue to bind the parties unless it is modified or vacated bythe arbitral tribunal, once it is constituted, until the tribunal makesa final award or until the claim is withdrawn. Paragraph 10 ofSchedule 1 also provides that any interim order or award madeby the Emergency Arbitrator shall cease to be binding only if thetribunal is not constituted within 90 days of such order or award.Under paragraph 12, the parties agree that such orders shall bebinding on the parties from the date it is made and undertake to

[2021] 4 S.C.R.

Acarry out the interim order immediately and without delay.[Para 25][814-C-G]

1.8 The 246th Law Commission Report did provide for theinsertion of an Emergency Arbitrator’s orders into Section 2(1)(d)of the Arbitration Act. It is pertinent to note that the High-LevelBCommittee constituted by the Government of India under thechairmanship of Justice B.N. Srikrishna (Retd.) to review theinstitutionalisation of arbitration mechanism in India and look intothe provisions of the Arbitration Act after the 2015 AmendmentAct, submitted report on 30th July, 2017- “SrikrishnaCommittee Report”. What is of significance is that the said ReportClaid down that it is possible to interpret Section 17(2) of the Actto enforce emergency awards for arbitrations seated in India, andrecommended that the Act be amended only so that it comes inline with international practice in favour of recognisingand enforcing an emergency award. [Paras 26, 28, 29][814-G-H;D818-B-C; 819-D]

Avitel Post Studioz Ltd. & Ors. v. HSBC PI Holdings(Mauritius) Ltd. (2021) 4 SCC 713 – referred to.

Raffles Design International India Pvt. Ltd. v. EducompProfessional Education Ltd. 2016 SCC OnLine DelE5521 : [2016] 234 DLT 349 – approved.

1.9 In essence, what is provided by the SIAC Rules andthe other institutional rules, is reflected in Sections 9(2) and 9(3)so far as interim orders passed by courts are concerned. Theintroduction of Sections 9(2) and 9(3) would show that the objectiveFwas to avoid courts being flooded with Section 9 petitions whenan arbitral tribunal is constituted for two good reasons-(i) thatthe clogged court system ought to be decongested, and (ii) thatan arbitral tribunal, once constituted, would be able to grantinterim relief in timely and efficacious manner. Section 17 wasGthen amended by the very same 2015 Amendment Act (whichbrought in sub-sections (2) and (3) to Section 9) to substituteSection 17 so that Section 17(1) would be mirror image of Section9(1), making it clear that an arbitral tribunal is fully clothed withthe same power as court to provide for interim relief. Also,Section 17(2) was added so as to provide for enforceability ofHsuch orders, again, as if they were orders passed by court,

thereby bringing Section 17 on par with Section 9. [Paras 32,34][820-G-H; 821-G-H]

1.10 An Emergency Arbitrator’s “award”, i.e., order, wouldundoubtedly be an order which furthers these very objectives,i.e., to decongest the court system and to give the parties urgentinterim relief in cases which deserve such relief. Given the factthat party autonomy is respected by the Act and that there isotherwise no interdict against an Emergency Arbitrator beingappointed, it is clear that an Emergency Arbitrator’s order, whichis exactly like an order of an arbitral tribunal once properlyconstituted, in that parties have to be heard and reasons are tobe given, would fall within the institutional rules to which theparties have agreed, and would consequently be covered bySection 17(1), when read with the other provisions of the Act.[Para 35][822-A-C]

1.11 party cannot be heard to say, after it participates inan Emergency Award proceeding, having agreed to institutionalrules made in that regard, that thereafter it will not be bound byan Emergency Arbitrator’s ruling. Having agreed to paragraph12 of Schedule 1 to the SIAC Rules, the party cannot ignore anEmergency Arbitrator’s award by stating that it is nullity whensuch party expressly agrees to the binding nature of such awardfrom the date it is made and further undertakes to carry out thesaid interim order immediately and without delay. [Para 36][822-C-E]1.12 Rule 3 merely states that the President may appointan Emergency Arbitrator if he determines that the SIAC shouldaccept the application for emergency interim relief. Once theEmergency Arbitrator enters upon the reference, he is given allthe powers of an arbitral tribunal under Rule 7 and is to decidecompletely independently of any other administrative authorityunder the SIAC Rules. Equally, Rule 9 does not, in any manner,impinge upon the independence of the Emergency Arbitrator asit only lays down the timeframe within which an interim order oraward is to be made, which time is extendable by the Registrar.The interim order or award that is finally made by the EmergencyArbitrator has only to be approved by the Registrar as to its“form” and not on merits. Further, Rule 10 also does not, in any

Amanner, interfere with the independence of the decision of theEmergency Arbitrator. The submission that an EmergencyArbitrator under the SIAC Rules is not an independent judicialbody like an arbitral tribunal constituted under the very Rules,and referred to and relied upon Rules 3, 9, and 10 is, therefore,rejected. The submission that arbitration, conceptually, is anBouster of the civil court’s jurisdiction and that, therefore, onlywhat is expressly provided in the ouster provisions can befollowed – there is no room for any implication here, may havefound favour with court if it were dealing with Arbitration Act,1940. The Arbitration and Conciliation Act, 1996 is completeCbreak with the past and is no longer to be viewed as an ousterstatute but as statute which favours the remedy of arbitrationso as to de-clog civil courts which are, in today’s milieu, extremelyburdened. As matter of fact, Section 5 of the Arbitration Actputs paid to the submission when it overrides all other laws forthe time being in force and goes on to state that in mattersDgoverned by Part I of the Act, no judicial authority shall interveneexcept where so provided in that Part. The Arbitration Act,therefore, turns the principle of ouster on its head when it comesto arbitration as favoured means of resolving civil disputes.[Paras 37, 38][822-F-H; 823-B-D]

EKrishnadevi Malchand Kamathia v. BombayEnvironmental Action Group (2011) 3 SCC 363 : [2011]3 SCR 291; Anita International v. Tungabadra SugarWorks Mazdoor Sangh (2016) 9 SCC 44 : [2016] 6SCR 635; Tayabbhai M. Bagasarwalla v. Hind RubberFIndustries (P) Ltd. (1997) 3 SCC 443 : [1997] 2 SCR152 – referred to.

In Re Franklin and Swathling’s Arbitration, [1929] 1 Ch.238 – referred to.

Justice R.S. Bachawat’s Law of Arbitration andGConciliation (Sixth Ed., LexisNexis) – referred to.

1.13 No party, after agreeing to be governed by institutionalrules, can participate in proceeding before an EmergencyArbitrator and, after losing, turn around and say that the award isa nullity or coram non judice when there is nothing in the

AMAZON.COM NV INVESTMENT HOLDINGS LLC v.FUTURE RETAIL LIMITED

Arbitration Act which interdicts an Emergency Arbitrator’s orderfrom being made. Section 17, as construed in the light of theother provisions of the Act, clearly leads to the position that suchemergency award is made under the provisions of Section 17(1)and can be enforced under the provisions of Section 17(2).[Para 40][827-D-F]

Kiran Singh v. Chaman Paswan [1955] 1 SCR 117;CIT v. Pearl Mechanical Engineering & Foundry Works(P) Ltd. (2004) 4 SCC 597 : [2004] 1 Suppl. SCR 339– distinguished.

1.14 Full party autonomy is given by the Arbitration Act tohave dispute decided in accordance with institutional rules whichcan include Emergency Arbitrators delivering interim orders,described as “awards”. Such orders are an important step in aidof decongesting the civil courts and affording expeditious interimrelief to the parties. Such orders are referable to and are madeunder Section 17(1) of the Arbitration Act. [Para 41][827-F-G]

2.1 reading of Order XXXIX, Rule 2(3) and 2(4) as itoriginally stood, and Order XXXIX, Rule 2-A as it stands afterthe 1976 Amendment Act is to “prescribe” under Section 94 ofthe Code of Civil Procedure as to what is the consequence whena temporary injunction order and/or an order appointing receiverof property is flouted. The consequences are mentioned inSections 94(c) and (d) itself and fleshed out by Order XXXIX.[Para 48][834-G-H; 835-A]

Adhunik Steels Ltd. v. Orissa Manganese and Minerals(P) Ltd. (2007) 7 SCC 125 : [2007] 8 SCR 213; FoodCorporation of India v. Sukh Deo Prasad (2009) 5 SCC665 : [2009] SCR 1107; U.C. Surendranath v.Mambally’s Bakery (2019) 20 SCC 666 – referred to.

2.2 Orders passed under Section 17(2) of the ArbitrationAct, using the power contained in Order XXXIX, Rule 2-A are,therefore, properly referable only to the Arbitration Act.[Para 50][836-D]

2.3 It is well settled that the expression “in relation to”,which occurs in both Section 9(1) and Section 17(1), is an

Aexpression which is comprehensive in nature, having both directas well as an indirect significance. Coupled with this, theexpression “any proceedings”, occurring in Section 9(1) andSection 17(1), would also be an expression comprehensiveenough to take in enforcement proceedings. [Paras 51, 53][836-E; 839-G]B

Bandekar Brothers Pvt. Ltd. v. Prasad Vassudev Keni2020 SCC OnLine SC 707; Thyssen Stahlunion Gmbhv. Steel Authority of India Ltd. (1999) 9 SCC 334 :[1999] 3 Suppl. SCR 461; BCCI v. Kochi Cricket (P)Ltd. (2018) 6 SCC 287 : [2018] 2 SCR 829; ShriCBalaganesan Metals v. M.N. Shanmugham Chetty(1987) 2 SCC 707 : [1987] 2 SCR 1173; LucknowDevelopment Authority v. M.K. Gupta (1994) 1 SCC243 : [1993] 3 Suppl. SCR 615; Union of India v. A.B.Shah (1996) 8 SCC 540 : [1996] 2 Suppl. SCR 620 –Dreferred to.

2.4 Properly so read, the expressions “in relation to” and“any proceedings” would include the power to enforce ordersthat are made under Section 9(1), and are not limited to incidentalpowers to make interim orders. Thus, if an order under SectionE9(1) is flouted by any party, proceedings for enforcement of thesame are available to the court making such orders under Section9(1). These powers are, therefore, traceable directly to Section9(1) of the Act-which then takes to the Code of Civil Procedure.Thus, an order made under Order XXXIX Rule 2-A, inenforcement of an order made under Section 9, would also beFreferable to Section 9(1) of the Arbitration Act. [Para 54][842-C-E]

2.5 Given the fact that the 2015 Amendment Act hasprovided in Section 17(1) the same powers to an arbitral tribunalas are given to court, it would be anomalous to hold that if anGinterim order was passed by the tribunal and then enforced bythe court with reference to Order XXXIX Rule 2-A of the Codeof Civil Procedure, such order would not be referable to Section17. Section 17(2) was necessitated because the earlier law onenforcement of an arbitral tribunal’s interim orders was found toHbe too cumbersome. [Para 55][842-E-G]

Alka Chandewar v. Shamshul Ishrar Khan (2017) 16SCC 119 : [2017] 6 SCR 533 – referred to.

2.6 It was to remedy this situation that Section 17(2) wasintroduced. There is no doubt that the arbitral tribunal cannotitself enforce its orders, which can only be done by court withreference to the Code of Civil Procedure. But the court, when itacts under Section 17(2), acts in the same manner as it acts toenforce court order made under Section 9(1). If this is so, thenwhat is clear is that the arbitral tribunal’s order gets enforcedunder Section 17(2) read with the Code of Civil Procedure.Thereis no doubt that Section 17(2) creates legal fiction. This fictionis created only for the purpose of enforceability of interim ordersmade by the arbitral tribunal. To extend it to appeals being filedunder the Code of Civil Procedure would be big leap notenvisaged by the legislature at all in enacting the said fiction.[Paras 56, 57][844-G-H; 845-A-B]

Paramjeet Singh Patheja v. ICDS Ltd. (2006) 13 SCC322; Rajasthan State Industrial Development &Investment Corporation v. Diamond & GemDevelopment Corporation Ltd. (2013) 5 SCC 470 :[2013] 4 SCR 331; East End Dwellings Co. Ltd. v.Finsbury Borough Council 1952 AC 109 : [1951] 2 AllER 587 (HL) – referred to.

2.7 There can be no doubt that the legal fiction createdunder Section 17(2) for enforcement of interim orders is createdonly for the limited purpose of enforcement as decree of thecourt. To extend this fiction to encompass appeals from suchorders is to go beyond the clear intention of the legislature. Thesubmission in stressing the words “under the Code of CivilProcedure” in Section 17(2), thus holds no water as limitedfiction for the purpose of enforcement cannot be elevated to thelevel of genie which has been released from statutory provisionand which would encompass matters never in the contemplationof the legislature. [Para 59][847-F-H; 848-A]

2.8 The fiction created by Section 49 of the Arbitration Actis limited to enforcement of foreign award, with the importantcorollary that an application to enforce an award is an application

Aunder the Arbitration Act and not an application under OrderXXI of the Code of Civil Procedure (in which case, such applicationwould have been governed by Article 136 of the Limitation Actas an execution application under Order XXI, and not anapplication under the residuary Article 137 of the Limitation Act).[Para 60][850-F-G]B

Union of India v. Vedanta Ltd. (2020) 10 SCC 1 – reliedon.

2.9 On proper interpretation of the said Act, an award/order by an Emergency Arbitrator would be covered by SectionC17 of the Arbitration Act, when properly read with other provisionsof the Act. [Para 62][851-D-E]

2.10 The interpretation of Section 36 is not before thisCourt-the interpretation of Section 17 read with Section 9 is. Asfar as Section 17 is concerned, the scheme qua interim ordersDpassed by an arbitral tribunal mirrors the scheme qua interimorders passed by civil courts under Section 9. This vital differencebetween the provisions of Section 17 read with Section 9 and ascontrasted with Section 36 puts paid to this argument.[Para 64][852-A-B]

EDaelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd.2009 SCC OnLine Del 511 : [2009] 159 DLT 579;Sundaram Finance Ltd. v. Abdul Samad (2018) 3 SCC622 : [2018] 10 SCR 451; Gemini Bay TranscriptionPvt. Ltd. v. Integrated Sales Service Ltd. 2018 SCCOnLine Bom 216 : AIR 2018 Bom 89 (FB); Jet AirwaysF(India) Ltd. v. Subrata Roy Sahara 2011 SCC OnLineBom 1379 : [2012] (2) AIR Bom 855; KakadeConstruction Co. Ltd. v. Vistra ITCL 2019 SCC OnLineBom 1521 : (2019) 6 Bom CR 805; Global Asia VentureCo. v. Arup Parimal Deb 2018 SCC OnLine BomG13061; Punjab State Civil Supplies Corporation Ltd. v.Atwal Rice & General Mills (2017) 8 SCC 116 : [2017]8 SCR 198 – referred to.

3.1 There can be no doubt that Section 37 is completecode so far as appeals from orders and awards made under theArbitration Act are concerned. This has further beenH

AMAZON.COM NV INVESTMENT HOLDINGS LLC v.FUTURE RETAIL LIMITED

strengthened by the addition of the non-obstante clause by theArbitration and Conciliation (Amendment) Act, 2019.[Para 69][854-C-D]

Kandla Export Corporation v. OCI Corporation (2018)14 SCC 715 : [2018] 1 SCR 915; Deep Industries Ltd.v. ONGC (2020) 15 SCC 706; BGS SGS SOMA JV v.NHPC (2020) 4 SCC 234 – referred to.

3.2 Section 37 did not remain untouched by the 2015Amendment Act. As matter of fact, new category of appealswas infused into the said provision by adding new sub-section(1)(a).Despite Section 17 being amended by the same AmendmentAct, by making Section 17(1) the mirror image of Section 9(1) asto the interim measures that can be made, and by adding Section17(2) as consequence thereof, significantly, no change was madein Section 37(b)(2) to bring it in line with Order XLIII, Rule 1(r).The said Section continued to provide appeals only from an ordergranting or refusing to grant any interim measure under Section17. There can be no doubt that granting or refusing to grant anyinterim measure under Section 17 would only refer to the grantor non-grant of interim measures under Section 17(1)(i) and 17(1)(ii). In fact, the opening words of Section 17(2), namely, “subjectto any orders passed in appeal under Section 37…” alsodemonstrates the legislature’s understanding that orders that arepassed in an appeal under Section 37 are relatable only to Section17(1). For example, an appeal against an order refusing aninjunction may be allowed, in which case sub- section (2) of Section17 then kicks in to enforce the order passed in appeal. Also, thelegislature made no amendment to the granting or refusing togrant any measure under Section 9 to bring it in line with OrderXLIII, Rule 1(r), under Section 37(1)(b). What is clear from thisis that enforcement proceedings are not covered by the appealprovision. [Paras 73, 74][858-F-G; 859-A-E]

Chintels (India) Ltd. v. Bhayana Builders (P) Ltd. (2021)4 SCC 602 - distinguished.

3.3 No appeal lies under Section 37 of the Arbitration Actagainst an order of enforcement of an Emergency Arbitrator’sorder made under Section 17(2) of the Act. As result, all interim

Aorders of this Court stand vacated. The impugned judgments ofthe Division Bench are set aside. [Para 76][861-B]

South Delhi Municipal Corporation v. Tech Mahindra(2019) SCC Online Delhi 11863 – referred to.

Case Law Reference

AMAZON.COM NV INVESTMENT HOLDINGS LLC v.FUTURE RETAIL LIMITED

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4492-4493 of 2021.

From the Judgment and Order dated 08.02.2021 of the High Courtof Delhi at New Delhi in FAO (OS) (COMM.) No. 21 of 2021 andC.M. No. 4124 of 2021.

With

Civil Appeal Nos. 4494-4495 And 4496-4497 of 2021.

Gopal Subramanium, Ranjit Kumar, Gourab Banerji, Nakul Dewan,Aspi Chinoy, Amit Sibal, Sr. Advs., Anand S Pathak, Amit K Mishra,Shashank Gautam, Ms. Sreemoyee Deb, Vijay Purohit, Mohit Singh,Harshad Pathak, Promit Chatterjee, Shivam Pandey, Ms. Samridhi Hota,Ms. Kanika Singhal, Ms. Saloni Agarwal, Ms. Didon Misri, Ms. NikitaBangera, Pratik Jhaveri, Faizan Mithaiwala, Vijayendra Pratap Singh,Rachit Bahl, Ms. Roopali Singh, Abhijnan Jha, Priyank Ladoia, TanmaySharma, Ms. Vanya Chhabra, Arnab Ray, Vedant Kapur, Shaurya Mittal,Abhisar Vidyarthi, Ms. Ninaee Deshmukh, Pawan Bhushan, Ms. HimaLawrence, Ms. Ujwala Uppaluri, Mohit Pandey, T. Sundaram, VinayTripathi, Aishvary Vikram, Kaustubh Prakash, Ms. Anushka Shah, Ms.Neelu Mohan, Shashank Manish, Ms. Smriti Shah, Ms. Nidhi Sahay,Advs. for the appellant.

Harish Salve, K V Viswanathan, Vineet Naik, Ritin Rai, VikramNankani, Sr. Advs., Ameet Naik, Raghav Shankar, Aditya Mehta, TusharHathiramani, Abhishek Kale, Ms. Madhu Gadodia, Harshvardhan Jha,Ms. Arshiya Sharda, Mrs. Ritika Rai, Yugandhara Pawar Jha, ApoorvaSinghal, Pankaj Patel, Rohan Shah, Mahesh Agarwal, Naval Agarwal,Rishi Agarwala, Karan Luthra, Rohan Kelkar, Pranjit Bhattacharya, Ankit

ABanati, E. C. Agrawala, Vikas Mehta, Ms. Devanshi Singh, ApoorvKhator, Bhaskar Nayak, Advs. for the Respondents.

The Judgment of the Court was delivered by

R. F. NARIMAN, J.

B1. Two important questions arise in these appeals – first, as towhether an “award” delivered by an Emergency Arbitrator under theArbitration Rules of the Singapore International Arbitration Centre[“SIAC Rules”] can be said to be an order under Section 17(1) of theArbitration and ciliation Act, 1996 [“Arbitration Act”]; and second, asto whether an order passed under Section 17(2) of the Arbitration Act inCenforcement of the award of an Emergency Arbitrator by learnedSingle Judge of the High Court is appealable.

2. The brief facts necessary to appreciate the context in whichthese two questions arise are as follows:

D2.1. Proceedings were initiated by the Appellant, Amazon.comNV Investment Holdings LLC [“Amazon”] before the High Court ofDelhi under Section 17(2) of the Arbitration Act to enforce the award/order dated 25[th] October, 2020 of an Emergency Arbitrator, Mr. V.K.Rajah, SC. This order was passed in arbitration proceedings being SIACArbitration No. 960 of 2020 commenced by Amazon againstERespondents No. 1 to 13, who are described as under:

(i)Respondent No.1 – Future Retail Limited, India’s second-largest offline retailer [“FRL”]

(ii)Respondent No.2 – Future Coupons Pvt. Ltd., companythat holds 9.82% shareholding in FRL and is controlled andFmajority-owned by Respondents No. 3 to 11 [“FCPL”]

(iii)Respondent No.3 – Mr. Kishore Biyani, ExecutiveChairman and Group CEO of FRL

(iv)Respondent No.8 – Mr. Rakesh Biyani, Managing Directorof FRL

(v)Respondents No. 4 to 7 and 9 to 11 – other members of theBiyani family, namely, Ms. Ashni Kishore Biyani, Mr. AnilBiyani, Mr. Gopikishan Biyani, Mr. Laxminarayan Biyani,Mr. Sunil Biyani, Mr. Vijay Biyani, and Mr. Vivek Biyani,Hwho are promoters and shareholders of FRL

(vi)Respondents No. 12 and 13 – Future Corporate ResourcesPvt. Ltd. and Akar Estate and Finance Pvt. Ltd., groupcompanies of FRL

Respondents No. 1 to 13 are hereinafter collectively referred toas the “Biyani Group”.

2.2. The seat of the arbitral proceedings is New Delhi, and as perthe arbitration clause agreed upon by the parties, SIAC Rules apply.

2.3. Three agreements were entered into between the parties. AShareholders’ Agreement dated 12[th] August, 2019, was entered intoamongst the Biyani Group, i.e., Respondents No. 1 to 13 [“FRLShareholders’ Agreement”]. Under this Shareholders’ Agreement,FCPL was accorded negative, protective, special, and material rightswith regard to FRL including, in particular, FRL’s retail stores [“retailassets”]. The rights granted to FCPL under this Shareholders’Agreement were to be exercised for Amazon’s benefit and thus weremirrored in Shareholders’ Agreement dated 22[nd] August, 2019 enteredinto between Amazon, FCPL, and Respondents No. 3 to 13 [“FCPLShareholders’ Agreement”]. Amazon agreed to invest sum ofRs.1431 crore in FCPL based on the rights granted to FCPL under theFRL Shareholders’ Agreement and the FCPL Shareholders’ Agreement.This investment was recorded in the Share Subscription Agreement dated22[nd] August, 2019 entered into between Amazon, FCPL, and RespondentsNo. 3 to 13 [“Share Subscription Agreement”]. It was expresslystipulated that this investment in FCPL would “flow down” to FRL. Itappears that the basic understanding between the parties was thatAmazon’s investment in the retail assets of FRL would continue to vestin FRL, as result of which FRL could not transfer its retail assetswithout FCPL’s consent which, in turn, could not be granted unlessAmazon had provided its consent. Also, FRL was prohibited fromencumbering/transferring/selling/divesting/disposing of its retail assetsto “restricted persons”, being prohibited entities, with whom FRL, FCPL,and the Biyanis could not deal. list of such restricted persons was thenset out in Schedule III of the FCPL Shareholders’ Agreement and alsounder the FRL Shareholders’ Agreement vide letter dated 19[th] December,2019. There is no doubt that the Mukesh Dhirubhai Ambani group(Reliance Industries group) is “restricted person” under both theseShareholders’ Agreements.

EFG

A2.4. On 26[th] December, 2019, Amazon invested the aforesaid sumof Rs.1431 crore in FCPL which “flowed down” to FRL on the verysame day. The bone of contention between the parties is that within afew months from the date of this investment, i.e., on 29[th] August, 2020,Respondents No. 1 to 13 entered into transaction with the MukeshDhirubhai Ambani group which envisages the amalgamation of FRL withBthe Mukesh Dhirubhai Ambani group, the consequential cessation ofFRL as an entity, and the complete disposal of its retail assets in favourof the said group.

2.5. Amazon initiated arbitration proceedings and filed an applicationon 5[th] October, 2020 seeking emergency interim relief under the SIACCRules, asking for injunctions against the aforesaid transaction. Mr. V.K.Rajah, SC was appointed as the Emergency Arbitrator and heard detailedoral submissions from all parties and then passed an “interim award”dated 25[th] October, 2020, in which the learned Arbitrator issued thefollowing injunctions/directions:D“B. Dispositive Orders/Directions

285. In the result, I award, direct, and order as follows:

(a) the Respondents are injuncted from taking any steps infurtherance or in aid of the Board Resolution made by the Boardof Directors of FRL on 29 August 2020 in relation to the DisputedETransaction, including but not limited to filing or pursuing anyapplication before any person, including regulatory bodies oragencies in India, or requesting for approval at any companymeeting;

(b) the Respondents are injuncted from taking any steps to completeFthe Disputed Transaction with entities that are part of the MDAGroup;

(c) without prejudice to the rights of any current Promoter Lenders,the Respondents are injuncted from directly or indirectly takingany steps to transfer/ dispose/ alienate/ encumber FRL’s RetailGAssets or the shares held in FRL by the Promoters in any mannerwithout the prior written consent of the Claimant;

(d) the Respondents are injuncted from issuing securities of FRLor obtaining/securing any financing, directly or indirectly, from anyRestricted Person that will be in any manner contrary to Section13.3.1 of the FCPL SHA;H

(e) the orders in (a) to (d) above are to take effect immediatelyand will remain in place until further order from the Tribunal, whenconstituted; and

(f) the Claimant is to provide within 7 days from the date hereof across-undertaking in damages to the Respondents. If the Partiesare unable to agree on its terms, they are to refer their differencesto me qua EA for resolution; and

(g) the costs of this Application be part of the costs of thisArbitration.”

2.6. The Biyani Group thereafter went ahead with the impugnedtransaction, describing the award as nullity and the Emergency Arbitratoras coram non judice in order to press forward for permissions beforestatutory authorities/regulatory bodies. FRL, consistent with this stand,did not challenge the Emergency Arbitrator’s award under Section 37 ofthe Arbitration Act, but instead chose to file civil suit before the DelhiHigh Court being C.S. No. 493 of 2020, in which it sought to interdict thearbitration proceedings and asked for interim relief to restrain Amazonfrom writing to statutory authorities by relying on the EmergencyArbitrator’s order, calling it “tortious interference” with its civil rights.A learned Single Judge of the Delhi High Court, after finding primafacie case of tortious interference, then refused to grant any interiminjunction as follows:

“12.3 Thus the trinity of the principles for grant of interim injunctioni.e., prima facie case, irreparable loss and balance of convenienceare required to be tested in terms of principles as noted above.Since this Court has held that prima facie the representation ofAmazon based on the plea that the resolution dated 29th August,2020 of FRL is void and that on conflation of the FCPL SHA andFRL SHA, the ‘control’ that is sought to be asserted by Amazonon FRL is not permitted under the FEMA FDI Rules, without thegovernmental approvals, this Court finds that FRL has made out aprima facie case in its favour for grant of interim injunction.However, the main tests in the present case are in respect of“balance of convenience” and “irreparable loss”. Even if primafacie case is made out by FRL, the balance of convenience liesboth in favour of FRL and Amazon. If the case of FRL is that therepresentation by Amazon to the statutory authorities /regulators

Ais based on illegal premise, Amazon has also based itsrepresentation on the alleged breach of FCPL SHA and FRL SHA,as also the directions in the EA order. Hence it cannot be said thatthe balance of convenience lies in favour of FRL and not in favourof Amazon. It would be matter of trial after parties have ledtheir evidence or if decided by any other competent forum toBdetermine whether the representation of Amazon that thetransaction between FRL and Reliance being in breach of theFCPL SHA and FRL SHA would outweigh the plea of FRL in thepresent suit. Further in case Amazon is not permitted to representits case before the statutory authorities/Regulators, it will sufferCan irreparable loss as Amazon also claims to have created pre-emptive rights in its favour in case the Indian law permitted infuture. Further there may not be irreparable loss to FRL for thereason even if Amazon makes representation based on incorrectfacts thereby using unlawful means, it will be for the statutoryauthorities/Regulators to apply their mind to the facts and legalDissues therein and come to the right conclusion. There is yet anotheraspect as to why no interim injunction can be granted in the presentapplication for the reason both FRL and Amazon have alreadymade their representations and counter representations to thestatutory authorities/regulators and now it is for the StatutoryEAuthorities/Regulators to take decision thereon.

Therefore, this Court finds that no case for grant of interiminjunction is made out in favour of the FRL and against Amazon.

Conclusion

F13. Consequently, the present application is disposed of, decliningthe grant of interim injunction as prayed for by FRL, however, theStatutory Authorities/Regulators are directed to take the decisionon the applications/objections in accordance with the law.”

No appeal against this order has been filed by the Biyani Group.GOn the other hand, Amazon has filed an appeal against certainobservations made in the order. This appeal is pending.

2.7. Meanwhile, Amazon went ahead with an application filedunder Section 17(2) of the Arbitration Act which was heard and disposedof by learned Single Judge of the Delhi High Court. On 2[nd] February,2021, the learned Single Judge passed status-quo order in which heH

restrained the Biyani Group from going ahead with the impugnedtransaction, stating that reasons and detailed order will follow. An appealagainst this was filed by FRL, in which Division Bench, vide orderdated 8[th] February, 2021, after setting out the facts of this case and afterreaching certain prima facie findings, stayed the operation,implementation, and execution of the Single Judge order dated 2[nd]February, 2021 till the next date of hearing, and listed the appeal forfurther hearing on 26[th] February, 2021. Meanwhile, on 22[nd] February,2021, the Supreme Court allowed the amalgamation proceedings pendingbefore the National Company Law Tribunal to continue, but not toculminate in any final order of sanction of scheme of amalgamation.2.8. On 18[th] March, 2020, the learned Single Judge passed adetailed judgment giving reasons for an order made under Section 17(2)read with Order XXXIX, Rule 2-A of the Code of Civil Procedure, 1908[“Code of Civil Procedure”] in which it was held that an EmergencyArbitrator’s award is an order under Section 17(1) of the ArbitrationAct. Since breaches of the Agreements aforementioned were admitted,the only plea being raised being that the Emergency Arbitrator’s awardwas nullity, the learned Single Judge held that such award wasenforceable as an order under the Arbitration Act, and further held thatthe injunctions/directions granted by the said award were deliberatelyflouted by the Biyani Group. He also found that any so-called violationsof Foreign Exchange Management Act, 1999 [“FEMA”] did not renderthe Emergency Arbitrator’s award nullity, and therefore, issued show-cause notice under Order XXXIX, Rule 2-A of the Code of CivilProcedure, after imposing Rs.20 lakh as costs to be deposited with thePrime Minister Relief Fund for being used for providing COVIDvaccinations to the Below Poverty Line category of senior citizens ofDelhi. The learned Single Judge then directed as follows:

“Conclusion

188. The Emergency Arbitrator is an Arbitrator for all intents andpurposes; order of the Emergency Arbitrator is an order underSection 17(1) and enforceable as an order of this Court underSection 17(2) of the Arbitration and Conciliation Act.

189. Respondent No.2 is proper party to the arbitrationproceedings and the Emergency Arbitrator has rightly invokedthe Group of Companies doctrine by applying the well settled

principles laid down by the Supreme Court in Chloro Controls(supra), Cheran Properties (supra) and MTNL (supra). Therespondents have raised plea contrary to the well settled lawrelating to Group of Companies doctrine laid down by the SupremeCourt.

190. The respondents have raised vague plea of Nullity withoutsubstantiating the same. The interim order of the EmergencyArbitrator is not Nullity as alleged by respondent No.2.

191. Combining/treating all the agreements as single integratedtransaction does not amount to control of the petitioner over FRLCand therefore, the petitioner’s investment does not violate anylaw.

192. All the objections raised by the respondents are herebyrejected with cost of Rs.20,00,000/- to be deposited by therespondents with the Prime Minister Relief Fund for being usedDfor providing COVID vaccination to the Below Poverty Line (BPL)category - senior citizens of Delhi. The cost be deposited within aperiod of two weeks and the receipt be placed on record withinone week of the deposit.

193. The respondents have deliberately and wilfully violated theEinterim order dated 25th October, 2020 and are liable for theconsequences enumerated in Order XXXIX Rule 2-A of the Codeof Civil Procedure.

194. In exercise of power under Order XXXIX Rule 2-A(1) ofthe Code of Civil Procedure, the assets of respondents No.1 to 13Fare hereby attached. Respondents No.1 to 13 are directed to filean affidavit of their assets as on today in Form 16A, Appendix Eunder Order XXI Rule 41(2) of the Code of Civil Procedure within30 days. Respondent No.1, 2, 12 and 13 are directed to file anadditional affidavit in the format of Annexure B-1 and respondentsNo.3 to 11 are directed to file an additional affidavit in the formatGof Annexure A-1 to the judgment of M/s Bhandari Engineers &Builders Pvt. Ltd. v. M/s Maharia Raj Joint Venture, (supra) alongwith the documents mentioned therein within 30 days.

195. Show cause notice is hereby issued to respondents No.3 to13 to show cause why they be not detained in civil prison for aHterm not exceeding three months under Order XXXIX Rule 2-

A(1) of the Code of Civil Procedure for violation of the orderdated 25th October, 2020. Reply to the show cause notice be filedwithin two weeks. Rejoinder within two weeks thereafter.

196. The respondents are directed not to take any further actionin violation of the interim order dated 25th October, 2020. Therespondents are further directed to approach all the competentauthorities for recall of the orders passed on their applications inviolation of the interim order dated 25th October, 2020 within twoweeks. The respondents are directed to file an affidavit to placeon record the actions taken by them after 25[th] October, 2020 andthe present status of all those actions at least three days beforethe next date of hearing.

197. Respondents No.3 to 11 shall remain present before thisCourt on the next date of hearing.”

He listed the matter for further directions on 28[th] April, 2021.

2.9. Against this detailed judgment, FAO No. 51 of 2021 was filedby FRL. By the second impugned judgment in this case dated 22[nd] March,2021, Division Bench of the Delhi High Court referred to its earlierorder dated 8[th] February, 2021 and stayed the learned Single Judge’sdetailed judgment and order for the same reasons given by the earlierorder till the next date of hearing, which was 30[th] April, 2021. Againstthe said order, Special Leave Petitions were filed before this Court, andthis Court by its order dated 19[th] April, 2021 stayed further proceedingsbefore the learned Single Judge as well as the Division Bench of theDelhi High Court, and set the matter down for final disposal before thisCourt.

3. Mr. Gopal Subramanium, learned Senior Advocate appearingon behalf of Amazon, took us through the record with painstaking detail.He castigated the impugned orders of the Division Bench as sufferingfrom complete non-application of mind in that the order dated 8[th]February, 2021 referred to three agreements, the third being betweenFRL and Reliance Retail Ltd., which is an error apparent on the face ofthe record. Secondly, it went on to observe that in the aforesaid agreement,Amazon is not party. It then went on to hold that an appeal against anorder under Section 17(2) of the Arbitration Act would be maintainableunder the provisions of the Code of Civil Procedure on the basis of thereasoning contained in Delhi High Court judgment in South Delhi

AMunicipal Corporation v. Tech Mahindra, (2019) SCC Online Delhi11863, relying upon paragraphs 8 to 11 thereof. Mr. Subramanium arguedthat had the learned Division Bench bothered to refer to paragraphs 12and 13 of the aforesaid judgment, it would be clear that this authoritywould be an authority for exactly the opposite proposition, therebyrendering an appeal under Order XLIII, Rule1(r) of the Code of CivilBProcedure non-maintainable when it is read with Section 37 of theArbitration Act. Further observations that prima facie, the agreementsare between different parties, and therefore, the group-of- companiesdoctrine cannot be invoked, without any reasoning, again betrays acomplete non-application of mind. Since the second impugned order ofCthe Division Bench relies upon this very order to stay even the detailedjudgment of the Single Judge, the learned senior counsel argued that thesecond order, being reiteration of the first, suffers from the same malady.3.1. Mr. Subramanium then referred us to Sections 2(1)(a), 2(1)(c),2(1) (d), 2(6), 2(8) and 19(2) to argue that the Arbitration Act reflectsDthe grundnorm of arbitration as being party autonomy, which is respectedby these provisions and delineated in several judgments of this Court.He then referred to Section 37, pointing out that an appeal under Section37(2)(b) is restricted to granting or refusing to grant an interim measureunder Section 17, which would refer to Section 17(1) and not Section17(2). He went on to argue that the Arbitration Act is complete code inEitself and if an appeal does not fall within the four corners of Section 37,then it is incompetent, as has been held by several judgments of thisCourt.

3.2. He also referred to various judgments of this Court, arguingthat an Emergency Arbitrator’s award can never be characterised as aFnullity and ignored, and cited number of judgments to show that untilthe said award is set aside, it must be obeyed. He also referred to theimportant fact that the award must be taken as it stands as no appealwas made therefrom by the Biyani Group and that, therefore, it was notpermissible to go behind the award.G

3.3. He also cited judgments to show that non-signatories toarbitration agreements would nevertheless be bound thereby and on facts,it was admitted that the “Ultimate Controlling Person” behind the entiretransaction was Mr. Kishore Biyani, who was defined as such under thethree Agreements.

3.4. He also argued that, as has been held in the judgments of thisCourt, the FEMA is wholly unlike the Foreign Exchange Regulation Act,1973 [“FERA”] and does not contain any provision nullifying anagreement, even assuming that there was breach thereof.

4. Mr. Aspi Chinoy, learned Senior Advocate also appearing onbehalf of Amazon, took us through various parts of the EmergencyArbitrator’s award and argued that no equity can possibly be found infavour of the Biyani Group as the breach of the Emergency Arbitrator’saward had been admitted by them. Thus, they have come to the Courtwith dishonest and immoral case and if this is appreciated, it will beclear that on facts, after openly flouting the Emergency Arbitrator’saward, they would have no case on merits to resist the directions issuedby the learned Single Judge under Section 17(2) of the Arbitration Act.Even otherwise, he referred to Section 17(2) and argued that enforcementorders were made under the Arbitration Act and not under the Code ofCivil Procedure, as result of which the appeal filed under Order XLIII,Rule 1(r) would not be maintainable. Mr. Chinoy also referred to aDivision Bench judgment of the Bombay High Court in KakadeConstruction Co. Ltd. v. Vistra ITCL, 2019 SCC OnLine Bom 1521: (2019) 6 Bom CR 805 [“Kakade Construction”] to buttress hissubmission.

5. Mr. Ranjit Kumar, learned Senior Advocate appearing on behalfof Amazon, referred to Sections 9 and 17 of the Arbitration Act and theArbitration and Conciliation (Amendment) Act, 2015 [“2015Amendment Act”] which brought Section 17 into line with Section 9.He then referred to Section 9(3) to argue that the legislative intent is toobtain interim orders from an arbitral tribunal then constituted so as todecongest courts and free them from the burdens of Section 9 petitionsbeing filed before them. If this is appreciated, then it would be clear thatan Emergency Arbitrator’s award would be step in the right directionunder institutional rules, furthering this very objective. He also pointedout that by the very same amendment, non-obstante clause was addedto Section 37(1), thereby making it abundantly clear that unless an appealfalls within the four corners of Section 37, the moment an order is passedunder the Arbitration Act, no other appeal could possibly be filed if itwas outside the four corners of Section 37.

6. Mr. Harish Salve, learned Senior Advocate appearing on behalfof FRL, stated that he would not go to the extent of arguing that an

AEmergency Arbitrator’s award would be outside the ken of the ArbitrationAct, but that it was sufficient for his purpose to argue that an EmergencyArbitrator’s award cannot be said to fall under Section 17(1) of the Act.He placed before us an extract of the 246[th] Law Commission Report, inwhich the Law Commission advocated the amendment of Section 2 ofthe Arbitration Act, to include within sub-section (1)(d) provision forBthe appointment of an Emergency Arbitrator. He said that despite thissuggestion being made, Parliament did not adopt the same when itamended the Arbitration Act by the 2015 Amendment Act, therebyindicating that such orders would not fall within Section 17(1) of theArbitration Act. He then took us through the definition sections in theCArbitration Act and read out Sections 10 to 13, 16, 17, 21, 23, 27, 29A,and 30, in particular, to argue that an arbitral tribunal as defined by Section2(1) (d) of the Act can only mean tribunal that is constituted betweenthe parties, which then decides the disputes between the parties finallyand cannot, given the scheme of the Act, include an Emergency Arbitratorwho is not an “arbitral tribunal” but person who only decides, at best,Dan interim dispute between the parties which never culminates in finalaward. He argued that Mr. Subramanium was trying to fit square pegin round hole as the Arbitration Act only speaks of arbitral tribunalsthat are constituted between the parties and that can finally decide thedisputes between the parties. As an example, if the tribunal rules on itsEown jurisdiction and rejects plea stating it has no jurisdiction, it mustonly continue with the arbitral proceedings and make final arbitralaward, which can never be done by an Emergency Arbitrator. Thescheme, therefore, of the entirety of Part I of the Act, would show thatan Emergency Arbitrator is foreigner to the Indian Arbitration Act andcannot fit within its scheme unless an amendment is made by Parliament.F

6.1. He further argued, pointing to section 25.2 of the arbitralagreement contained in the FCPL Shareholders’ Agreement (which ismirrored in the FRL Shareholders’ Agreement as section 15.2), that inany case, the provisions of the SIAC Rules relating to an EmergencyArbitrator’s award, which were agreed to between the parties, wereGsubject to the provisions of the Arbitration Act; and since the ArbitrationAct did not provide for Emergency Arbitrators, this part of the SIACRules would not apply, making it clear that an Emergency Arbitrator’saward cannot fall within Section 17(1) of the Act. He also argued thatthe scheme of Section 17(1) made it clear that party may, during arbitralHproceedings, apply to the arbitral tribunal. Even under the SIAC Rules,

an Emergency Arbitrator is appointed before the arbitral tribunal isconstituted, as is clear from Rule 30 read with Schedule 1. This beingthe case, an Emergency Arbitrator, not being appointed during arbitralproceedings, falls outside Section 17(1).

6.2. He also contrasted the Arbitration Act with provisionscontained in the Singapore, New Zealand, Hong Kong, and Englishstatutes which made it clear that under those statutes, an EmergencyArbitrator’s awards were expressly included and could thus be enforcedunder their provisions.

6.3. Mr. Salve made it clear that the appeal that was filed in thepresent case was not under Section 37 of the Arbitration Act but wasunder Order XLIII, Rule 1(r) of the Code of Civil Procedure. He thenread Section 9 together with Section 37 of the Arbitration Act to stressthat orders may be made under Section 9 until enforcement of an awardin accordance with Section 36, and then read Section 36 to make it clearthat the contours of Section 37 did not go beyond orders and awardsmade under the Arbitration Act. Since orders made in enforcementproceedings are not under the Arbitration Act but only under the Codeof Civil Procedure, therefore, in enforcement proceedings – both underSection 17(2) and under Section 36(1) – appeals can be filed from suchorders under the Code of Civil Procedure. He stressed upon the languageof Section 36(1), which made it clear that when final award is made, itshall be enforced in accordance with the provisions of the Code of CivilProcedurein the same manner as if it were decree of the court, therebyarguing that by legal fiction, an award is deemed to be decree for thepurposes of enforcement, which would include all purposes, includingappeals from orders passed in enforcement proceedings. He alsostressed upon the language of Section 17(2) to indicate that an orderpassed under Section 17(1) is deemed to be an order of the court for allpurposes and shall be enforceable under the Code of Civil Procedure inthe same manner as if it were an order of the court, making it clear thatenforcement is not under the Arbitration Act but only under the Code ofCivil Procedure. He stressed the fact that the order of the learned SingleJudge also made it abundantly clear that he was exercising powers onlyunder Order XXXIX, Rule 2-A of the Code of Civil Procedure and notunder the Arbitration Act. He then pointed out that there would be variousanomalies which cannot be addressed if we were to accept theconstruction suggested by Mr. Subramanium. As is well known, third-

Aparty objectors may object to an order under Section 17(2) or an award.If their rights are affected, it cannot be that they would have no right ofappeal, as perverse order against their interests would certainly beappealable. He also pointed out that, as of today, the application formodification/setting aside of the Emergency Arbitrator’s award had beenargued before regularly constituted arbitral tribunal, which would issueBits order either agreeing with or rejecting the Emergency Arbitrator’saward, from which either his clients or Mr. Subramanium’s clients wouldfile appeals, depending upon the orders so passed. He referred to anumber of judgments to buttress his submissions.7. Mr. K.V. Viswanathan, learned Senior Advocate also appearingCon behalf of FRL, argued that four rules of interpretation of statutes inthis case would necessarily require us to allow these appeals in favourof the Respondents. First, he argued that the words “as if” contained inSection 17(2) of the Act contain legal fiction which, when taken to itslogical conclusion, would necessarily mean that enforcement proceedingsDwould be outside the pale of the Arbitration Act and within the confinesof the Code of Civil Procedure. Further, he argued that the use of theexpression “under the Code of Civil Procedure” in Section 17(2) islegislation by reference and not by incorporation, leading to the conclusionthat it is the Code of Civil Procedure alone under which enforcementtakes place. He then reiterated that the expression “due regard” containedEin Section 36(3) is fundamentally different from the expression “underthe Code of Civil Procedure”, and that Section 36(1) and Section 17(2)are pari materia provisions, distinct from Section 36(3), under which astay of an award may be granted under the Arbitration Act with “dueregard to the Code of Civil Procedure”. He then added that when differentFwords are used in different provisions, they are meant to be differentiated.He also cited judgments to buttress each one of these submissions. Hethen went on to discuss various High Court judgments which show that,in practice, appeals that are filed against orders and awards sought to beenforced are filed under the Code of Civil Procedure and not under theArbitration Act.G

7.1. He then referred to Section 17(1) and, in particular, to theexpression “and the arbitral tribunal shall have the same power formaking orders, as the court has for the purpose of, and in relationto, any proceedings before it” and argued that the expression “inrelation to” refers only to incidental powers given to the tribunal and notH

to powers of enforcement. He also argued that the expression “arbitraltribunal” in Section 17(1) is to be read as defined by Section 2(1)(d),there being nothing in the context of Section 17(1) to the contrary whichwould obviate the application of Section 2(1)(d) in the context of Section17(1). He then referred to the arbitration clause between the parties toargue that the parties contemplated, by virtue of section 25.2 of theFCPL Shareholders’ Agreement, that only civil courts could pass interimorders until the arbitral tribunal is properly constituted by the parties. Hethen referred to recent judgment of this Court, namely NationalHighways Authority of India v. M. Hakeem, 2021 SCC OnLine SC473 [“NHAI”], arguing that Section 17 was like Section 34(1) of theArbitration Act in that nothing could be read into Section 17 so as toincorporate awards made by an Emergency Arbitrator.

7.2. He then argued that on reading of Schedule 1 of the SIACRules, an Emergency Arbitrator cannot be said to be like an arbitraltribunal in that, under Rule 3, the President of the SIAC must first acceptas to whether or not an Emergency Arbitrator be appointed at all. Also,under Rule 9, an administrative authority alone is given the power toextend time in the circumstances mentioned in the Rule, and under Rule10, an Emergency Arbitrator has no power to act after the arbitral tribunalis constituted, the tribunal not being bound by any reasons given by theEmergency Arbitrator. From this, he argued that an Emergency Arbitratordoes not fit within the Arbitration Act as such arbitrator is not anindependent quasi-judicial body under the Rules.7.3. He then referred to certain judgments and authorities for theproposition that proper reading of Exception 1 to Section 28 of theIndian Contract Act, 1872 would show that the civil court’s jurisdiction isousted and that only what is expressly provided for by the ouster provisionscan be given effect to as nothing can be implied therein. He then arguedthat the learned Single Judge was in great hurry to decide the case anddid not even give sufficient time to the Respondents to file objections tothe enforcement application, though he did concede that notes of writtenarguments, including the objection as to an award by an EmergencyArbitrator being nullity, were raised before the learned Single Judge.He also cited various judgments to show that this was case in whichthe Emergency Arbitrator lacked inherent jurisdiction, as result of whichhis clients were justified in ignoring the award passed by the EmergencyArbitrator.

A8. Mr. Vikram Nankani, learned Senior Advocate appearing onbehalf of Respondents No. 1 to 12 in Civil Appeal Nos. 4496-4497 of2021 and Respondents No. 2 to 13 in Civil Appeal Nos. 4494-4495 of2021, was at pains to point out that in the enforcement application, onthe facts of this case, it was specifically pleaded that the High Courtwas being approached as civil court, and that the application was filedBonly under Order XXXIX, Rule 2-A. He also cited judgments to showthat the provisions of Order XXXIX, Rule 2-A, being punitive in natureand requiring heightened standard of wilful disobedience to be appliedcannot be applied routinely or in the cavalier manner in which the learnedSingle Judge has applied the said provision. He also referred to the factCthat only the SIAC Rules pertaining to “arbitration” stricto sensu wereagreed to between the parties, which would exclude rules relating toawards by an Emergency Arbitrator. He then distinguished the judgmentin Kakade Construction (supra) relied upon by Mr. Chinoy and thejudgment in Jet Airways (India) Ltd. v. Subrata Roy Sahara, 2011SCC OnLine Bom 1379 : 2012 (2) AIR Bom 855 [“Jet Airways”],Dstating that they applied only to Section 36 of the Act and are notauthorities qua Section 17, which is the subject matter of argument inthe facts of the present case.

9. Having heard learned counsel for the parties, the first questionto be determined by this Court is whether an Emergency Arbitrator’sEaward can be said to be within the contemplation of the Arbitration Act,and whether it can further be said to be an order under Section 17(1) ofthe Act.

10. The relevant provisions of the Arbitration Act, so far as thiscontention is concerned, are as follows:F“2. Definitions.—(1) In this Part, unless the context otherwiserequires,—

(a)“arbitration” means any arbitration whether or notadministered by permanent arbitral institution;G* * *

(c)“arbitral award” includes an interim award;

(d)“arbitral tribunal” means sole arbitrator or panelof arbitrators;”

(6) Construction of references.—Where this Part, exceptSection 28, leaves the parties free to determine certain issue,that freedom shall include the right of the parties to authorise anyperson including an institution, to determine that issue.”

(8) Where this Part—

(a)refers to the fact that the parties have agreed or thatthey may agree, or

(b)in any other way refers to an agreement of theparties, that agreement shall include any arbitrationrules referred to in that agreement.”

“19. Determination of rules of procedure.—

(2) Subject to this Part, the parties are free to agree on theDprocedure to be followed by the arbitral tribunal in conducting itsproceedings.”

“21. Commencement of arbitral proceedings.—Unlessotherwise agreed by the parties, the arbitral proceedings in respectof particular dispute commence on the date on which requestfor that dispute to be referred to arbitration is received by therespondent.”

11. reading of these provisions would show that an arbitrationproceeding can be administered by permanent arbitral institution.Importantly, Section 2(6) makes it clear that parties are free to authoriseany person including an institution to determine issues that arise betweenthe parties. Also, under Section 2(8), party autonomy goes to the extentof an agreement which includes being governed by arbitration rulesreferred to in the aforesaid agreements. Likewise, under Section 19(2),parties are free to agree on the procedure to be followed by an arbitraltribunal in conducting its proceedings.

12. Section 21 provides that arbitral proceedings in respect of aparticular dispute commence on the date on which request for thatdispute to be referred to arbitration is received by the respondent. ThisSection is expressly subject to agreement by the parties. Rule 3.3 of theSIAC Rules reads as follows:

A“Rule 3: Notice of Arbitration

3.3 The date of receipt of the complete Notice of Arbitration bythe Registrar shall be deemed to be the date of commencementof the arbitration. For the avoidance of doubt, the Notice ofBArbitration is deemed to be complete when all the requirementsof Rule 3.1 and Rule 6.1(b) (if applicable) are fulfilled or whenthe Registrar determines that there has been substantial compliancewith such requirements. SIAC shall notify the parties of thecommencement of the arbitration.”

By agreeing to the application of the SIAC Rules, the arbitralproceedings in the present case can be said to have commenced fromthe date of receipt of complete notice of arbitration by the Registrar ofthe SIAC, which would indicate that arbitral proceedings under the SIACRules commence much before the constitution of an arbitral tribunalDunder the said Rules. This being the case, when Section 17(1) uses theexpression “during the arbitral proceedings”, the said expression wouldbe elastic enough, when read with the provisions of Section 21 of theAct, to include emergency arbitration proceedings, which only commenceafter receipt of notice of arbitration by the Registrar under Rule 3.3 ofthe SIAC Rules as aforesaid.

13. conjoint reading of these provisions coupled with there beingno interdict, either express or by necessary implication, against anEmergency Arbitrator would show that an Emergency Arbitrator’s orders,if provided for under institutional rules, would be covered by theArbitration Act.F

14. As matter of fact, number of judgments of this Court havereferred to the importance of party autonomy as being one of the pillarsof arbitration in the Arbitration Act. Thus, in Antrix Corporation Ltd.v. Devas Multimedia Pvt. Ltd., (2014) 11 SCC 560, this Court held asfollows:

“35. In view of the language of Article 20 of the arbitrationagreement which provided that the arbitration proceedings wouldbe held in accordance with the rules and procedures of theInternational Chamber of Commerce or UNCITRAL, Devas was

entitled to invoke the Rules of Arbitration of ICC for the conductof the arbitration proceedings. Article 19 of the agreement providedthat the rights and responsibilities of the parties thereunder wouldbe subject to and construed in accordance with the laws of India.There is, therefore, clear distinction between the law whichwas to operate as the governing law of the agreement and thelaw which was to govern the arbitration proceedings. Once theprovisions of the ICC Rules of Arbitration had been invoked byDevas, the proceedings initiated thereunder could not be interferedwith in proceeding under Section 11 of the 1996 Act. Theinvocation of the ICC Rules would, of course, be subject tochallenge in appropriate proceedings but not by way of anapplication under Section 11(6) of the 1996 Act. Where the partieshad agreed that the procedure for the arbitration would be governedby the ICC Rules, the same would necessarily include theappointment of an Arbitral Tribunal in terms of the arbitrationagreement and the said Rules. Arbitration Petition No. 20 of 2011under Section 11(6) of the 1996 Act for the appointment of anarbitrator must, therefore, fail and is rejected, but this will notprevent the petitioner from taking recourse to other provisions ofthe aforesaid Act for appropriate relief.”

Similarly, in Bharat Aluminium Co. v. Kaiser AluminiumTechnical Services Inc., (2016) 4 SCC 126 [“Balco”], this Court statedthus:

“5. Party autonomy being the brooding and guiding spirit inarbitration, the parties are free to agree on application of threedifferent laws governing their entire contract — (1) proper lawof contract, (2) proper law of arbitration agreement, and (3) properlaw of the conduct of arbitration, which is popularly and in legalparlance known as “curial law”. The interplay and application ofthese different laws to an arbitration has been succinctly explainedby this Court in Sumitomo Heavy Industries Ltd. v. ONGC Ltd.[Sumitomo Heavy Industries Ltd. v. ONGC Ltd., (1998) 1 SCC305], which is one of the earliest decisions in that direction andwhich has been consistently followed in all the subsequent decisionsincluding the recent Reliance Industries Ltd. v. Union of India[Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 603: (2014) 3 SCC (Civ) 737].”

ABC

“10. In the matter of interpretation, the court has to make differentapproaches depending upon the instrument falling for interpretation.Legislative drafting is made by experts and is subjected to scrutinyat different stages before it takes final shape of an Act, Rule orRegulation. There is another category of drafting by lawmen ordocument writers who are professionally qualified and experiencedin the field like drafting deeds, treaties, settlements in court, etc.And then there is the third category of documents made by laymenwho have no knowledge of law or expertise in the field. The legalquality or perfection of the document is comparatively low in thethird category, high in second and higher in first. No doubt, in theprocess of interpretation in the first category, the courts do makean attempt to gather the purpose of the legislation, its context andtext. In the second category also, the text as well as the purposeis certainly important, and in the third category of documents likewills, it is simply intention alone of the executor that is relevant. In

the case before us, being contract executed between the twoparties, the court cannot adopt an approach for interpreting astatute. The terms of the contract will have to be understood inthe way the parties wanted and intended them to be. In that context,particularly in agreements of arbitration, where party autonomy is

the grund norm, how the parties worked out the agreement, is oneof the indicators to decipher the intention, apart from the plain orgrammatical meaning of the expressions and the use of theexpressions at the proper places in the agreement.”

The importance of party autonomy in arbitration and commercialFcontracts was further delineated in the judgment of CentrotradeMinerals & Metal Inc. v. Hindustan Copper Ltd., (2017) 2 SCC228 [“Centrotrade”] as follows:

“38. Party autonomy is virtually the backbone of arbitrations. ThisCourt has expressed this view in quite few decisions. In twosignificant passages in Balco [Bharat Aluminium Co. v. KaiserAluminium Technical Services Inc., (2016) 4 SCC 126] this Courtdealt with party autonomy from the point of view of the contractingparties and its importance in commercial contracts. In para 5 ofthe Report, it was observed: (SCC p. 130)

“5. Party autonomy being the brooding and guiding spiritin arbitration, the parties are free to agree on application ofthree different laws governing their entire contract— (1) properlaw of contract, (2) proper law of arbitration agreement, and(3) proper law of the conduct of arbitration, which is popularlyand in legal parlance known as “curial law”. The interplay andapplication of these different laws to an arbitration has beensuccinctly explained by this Court in Sumitomo [SumitomoHeavy Industries Ltd. v. ONGC Ltd., (1998) 1 SCC 305]which is one of the earliest decisions in that direction and whichhas been consistently followed in all the subsequent decisionsincluding the recent Reliance Industries Ltd. v. Union of India[Reliance Industries Ltd. v. Union of India, (2014) 7 SCC603 : (2014) 3 SCC (Civ) 737].”

(emphasis in original)

Later in para 10 of the Report, it was held: (SCC pp. 131-32)

“10. In the matter of interpretation, the court has to makedifferent approaches depending upon the instrument falling forinterpretation. Legislative drafting is made by experts and issubjected to scrutiny at different stages before it takes finalshape of an Act, Rule or Regulation. There is another categoryof drafting by lawmen or document writers who areprofessionally qualified and experienced in the field like draftingdeeds, treaties, settlements in court, etc. And then there is thethird category of documents made by laymen who have noknowledge of law or expertise in the field. The legal quality orperfection of the document is comparatively low in the thirdcategory, high in second and higher in first. No doubt, in theprocess of interpretation in the first category, the courts domake an attempt to gather the purpose of the legislation, itscontext and text. In the second category also, the text as wellas the purpose is certainly important, and in the third categoryof documents like wills, it is simply intention alone of theexecutor that is relevant. In the case before us, being acontract executed between the two parties, the court cannotadopt an approach for interpreting statute. The terms ofthe contract will have to be understood in the way theparties wanted and intended them to be. In that context,

particularly in agreements of arbitration, where partyautonomy is the grund norm, how the parties worked out theagreement, is one of the indicators to decipher the intention,apart from the plain or grammatical meaning of the expressionsand the use of the expressions at the proper places in theagreement.”

(emphasis in original)

“42. Be that as it may, the legal position as we understand it isthat the parties to an arbitration agreement have the autonomy toCdecide not only on the procedural law to be followed but also thesubstantive law. The choice of jurisdiction is left to the contractingparties. In the present case, the parties have agreed on two-tierarbitration system through Clause 14 of the agreement and Clause16 of the agreement provides for the construction of the contractas contract made in accordance with the laws of India. We seeDnothing wrong in either of the two clauses mutually agreed uponby the parties.”

“46. For the present we are concerned only with the fundamentalEor public policy of India. Even assuming the broad delineation ofthe fundamental policy of India as stated in Associate Builders[Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC(Civ) 204] we do not find anything fundamentally objectionable inthe parties preferring and accepting the two-tier arbitration system.-FThe parties to the contract have not bypassed any mandatoryprovision of the A&C Act and were aware, or at least ought tohave been aware that they could have agreed upon the finality ofan award given by the arbitration panel of the Indian Council ofArbitration in accordance with the Rules of Arbitration of theIndian Council of Arbitration. Yet they voluntarily and deliberatelyGchose to agree upon second or appellate arbitration in London,UK in accordance with the Rules of Conciliation and Arbitrationof theInternational Chamber of Commerce. There is nothing inthe A&C Act that prohibits the contracting parties from agreeingupon second instance or appellate arbitration — either explicitlyor implicitly. No such prohibition or mandate can be read into the

A&C Act except by an unreasonable and awkwardmisconstruction and by straining its language to vanishing point.We are not concerned with the reason why the parties (includingHCL) agreed to second instance arbitration — the fact is thatthey did and are bound by the agreement entered into by them.HCL cannot wriggle out of solemn commitment made by itvoluntarily, deliberately and with eyes wide open.”

(emphasis supplied)

The principle of party autonomy, as delineated in Balco (supra)and Centrotrade (supra), has recently been quoted with approval bythis Court in PASL Wind Solutions Pvt. Ltd. v. GE PowerConversion India Pvt. Ltd., 2021 SCC OnLine SC 331 (see paragraphs101 and 102).

15. recent judgment in NHAI v. M. Hakeem (supra) dealtwith certain provisions of the National Highways Act, 1956, which laiddown scheme of acquisition different from that contained in the LandAcquisition Act, 1984. As part of the said scheme, arbitral awards passedunder the National Highways Act were challengeable only under Section34 of the Arbitration Act. The question squarely raised before this Courtwas as to whether, when court was empowered to “set aside” awardsunder Section 34 of the Act, would this power include the power tomodify an award.16. In answering this question, this Court referred to Article 34 ofthe UNCITRAL Model Law on International Commercial Arbitration,1985 [“Model Law”], and came to the conclusion that given the factthat Section 34 is verbatim reproduction of Article 34 of the ModelLaw, it would not contain any power to modify an arbitral award. In thiscase, since the parliamentary intention was crystal clear, and there wasno play in the joints to apply purposive or creative interpretation, thisCourt came to the conclusion that only an amendment of the ArbitrationAct could set right the position as otherwise, the Court would be guiltyof altering the material of which the Act was woven and not merelyironing out creases which were found in the statute.

17. By way of contrast, the present is case akin to Centrotrade(supra). As has been pointed out in Centrotrade (supra), the parties tothe contract, in the present case, by agreeing to the SIAC Rules and theaward of the Emergency Arbitrator, have not bypassed any mandatory

Aprovision of the Arbitration Act. There is nothing in the Arbitration Actthat prohibits contracting parties from agreeing to provision providingfor an award being made by an Emergency Arbitrator. On the contrary,when properly read, various Sections of the Act which speak of partyautonomy in choosing to be governed by institutional rules would make itclear that the said rules would apply to govern the rights between theBparties, position which, far from being prohibited by the ArbitrationAct, is specifically endorsed by it. This judgment is, therefore, entirelydistinguishable from the fact situation in the present case.

18. However, Mr. Salve argued, relying strongly upon theprovisions of Sections 10 to 13, 16, 17, 21, 23, 27, 29A, and 30 of theCArbitration Act, in particular, that the “arbitral tribunal” spoken of inthese provisions, and referable to Section 2(1)(d) of the Act, isexhaustively defined, which meansa sole arbitrator or panel ofarbitrators, which, when read with these provisions, would only includean arbitral tribunal which can not only pass interim orders, but which isDconstituted between the parties so that interim and/or final awards canbe passed by this very tribunal. He also argued, contrasting the languageof Section 9(1) with the language of Section 17(1), that Section 17(1)would only apply where party, during arbitral proceedings, applies toan arbitral tribunal (as defined) for interim relief, which cannot possiblyapply to an Emergency Arbitrator who is admittedly appointed only beforeEan arbitral tribunal is properly constituted. By way of contrast, he arguedthat under Section 9(1), an interim measure by the courts may be availedby party even before arbitral proceedings commence, up to the stageof enforcement in accordance with Section 36.

19. There can be no doubt that the “arbitral tribunal” as defined inFSection 2(1)(d) speaks only of an arbitral tribunal that is constitutedbetween the parties and which can give interim and final relief, “giventhe scheme of the Act”, as Mr. Salve puts it, as contained in theaforementioned Sections. However, like every other definition section,the definition contained in Section 2(1)(d) only applies “unless the contextGotherwise requires”. Given that the definition of “arbitration” in Section2(1)(a) means any arbitration, whether or not administered by permanentarbitral institution, when read with Sections 2(6) and 2(8), would make itclear that even interim orders that are passed by Emergency Arbitratorsunder the rules of permanent arbitral institution would, on properreading of Section 17(1), be included within its ambit. It is significant toHnote that the words “arbitral proceedings” are not limited by any definitionand thus encompass proceedings before an Emergency Arbitrator, ashas been held hereinabove with reference to Section 21 of the Act readwith the SIAC Rules. The short point is as to whether the definition of“arbitral tribunal” contained in Section 2(1)(d) should so constrict Section17(1), making it apply only to an arbitral tribunal that can give final reliefsby way of an interim or final award.

20. The heart of Section 17(1) is the application by party forinterim reliefs. There is nothing in Section 17(1), when read with theother provisions of the Act, to interdict the application of rules of arbitralinstitutions that the parties may have agreed to. This being the position,at least insofar as Section 17(1) is concerned, the “arbitral tribunal”would, when institutional rules apply, include an Emergency Arbitrator,the context of Section 17 “otherwise requiring” – the context being interimmeasures that are ordered by arbitrators. The same object and contextwould apply even to Section 9(3) which makes it clear that the courtshall not entertain an application for interim relief once an arbitral tribunalis constituted unless the court finds that circumstances exist which maynot render the remedy provided under Section 17 efficacious. SinceSection 9(3) and Section 17 form part of one scheme, it is clear that an“arbitral tribunal” as defined under Section 2(1)(d) would not apply andthe arbitral tribunal spoken of in Section 9(3) would be like the “arbitraltribunal” spoken of in Section 17(1) which, as has been held above,would include an Emergency Arbitrator appointed under institutional rules.

21. However, Mr. Salve relied upon Firm Ashok Traders v.Gurumukh Das Saluja, (2004) 3 SCC 155 and, in particular, the followingpassage:

“18. Under the A&C Act, 1996, unlike the predecessor Act of1940, the Arbitral Tribunal is empowered by Section 17 of the Actto make orders amounting to interim measures. The need forSection 9, in spite of Section 17 having been enacted, is that Section17 would operate only during the existence of the Arbitral Tribunaland its being functional. During that period, the power conferredon the Arbitral Tribunal under Section 17 and the power conferredon the court under Section 9 may overlap to some extent but sofar as the period pre- and post- the arbitral proceedings isconcerned, the party requiring an interim measure of protectionshall have to approach only the court. …”

This judgment also does not carry the Respondents’ case anyfurther as the question for decision in this case is whether the EmergencyArbitrator’s award can be said to be by an “arbitral tribunal” as defined,and does not have any reference to when party may approach courtunder Section 9.

B22. Mr. Salve then argued that in any case, the arbitrationagreement between the parties, contained in section 25.2 of the FCPLShareholders’ Agreement (pari materia with section 15.2 of the FRLShareholders’ Agreement), makes it clear that the SIAC Rules wouldbe subject to the Indian Arbitration Act, and being so subject, the provisionsgoverning an award made by an Emergency Arbitrator under the SIACCRules would not be applicable between the parties. Sections 25.1 and25.2 of the FCPL Shareholders’ Agreement (pari materia with sections15.1 and 15.2 of the FRL Shareholders’ Agreement) read as follows:

“25.1. Governing Law

This Agreement shall be governed by and construed in accordancewith the Laws of India. Subject to the provisions of Section 25.2(Dispute Resolution), the courts at New Delhi, India shall haveexclusive jurisdiction over any matters or Dispute (hereinafterdefined) relating or arising out of this Agreement.

“25.2. Dispute Resolution

25.2.1. Arbitration

Any dispute, controversy, claim or disagreement of any kindwhatsoever between or among the Parties in connection with orarising out of this Agreement or the breach, termination or invaliditythereof (hereinafter referred to as “Dispute”), failing amicableresolution through negotiations, shall be referred to and finallyresolved by arbitration irrespective of the amount in Dispute orwhether such Dispute would otherwise be considered justifiableor ripe for resolution by any court. The parties agree that theyshall attempt to resolve through good faith consultation, any suchDispute between any of the Parties and such consultation shallbegin promptly after Party has delivered to another Party awritten request for such consultation. In the event the Dispute isnot resolved by means of negotiation within period of 30 (thirty)days or such different period mutually agreed between the Parties,such Dispute shall be referred to and finally resolved by Arbitration

in accordance with the arbitration rules of the SingaporeInternational Arbitration Centre (“SIAC”), and such rules (the“Rules”) as may be modified by the provisions of this Section 25(Governing Law and Dispute Resolution). This Agreement andthe rights and obligations of the Parties shall remain in full forceand effect pending the award in such arbitration providing, whichaward, if appropriate, shall determine whether and when anytermination shall become effective.”

As has been held by us above, it is wholly incorrect to say thatSection 17(1) of the Act would exclude an Emergency Arbitrator’s orders.This being the case, even if section 25.2 of the FCPL Shareholders’Agreement (pari materia with section 15.2 of the FRL Shareholders’Agreement) makes the SIAC Rules subject to the Arbitration Act, thesaid Act, properly construed, would include an Emergency Arbitrator’sawards/orders, there being nothing inconsistent in the SIAC Rules whenread with the Act.

23. Also, Mr. Nankani’s argument that the arbitration agreementcontained in section 25.2 of the FCPL Shareholders’ Agreement referredto hereinabove would indicate that the SIAC Rules were only agreedupon insofar as arbitration alone is concerned is wholly incorrect. Rule1.3 of the SIAC Rules indicates that an award of an Emergency Arbitratoris included within the ambit of these Rules, and that an EmergencyArbitrator, as defined, means an arbitratorappointed in accordance withparagraph 3 of Schedule 1. This makes it clear beyond doubt that“arbitration” mentioned in section 25.2 of the FCPL Shareholders’Agreement would include an arbitrator appointed in accordance withthe SIAC Rules which, in turn, would include an Emergency Arbitrator.

24. The SIAC Rules, with which we are immediately concerned,deal with the concept of an Emergency Arbitrator as follows:

“Rule 1: Scope of Application and Interpretation

1.3 In these Rules:

“Award” includes partial, interim or final award and an awardof an Emergency Arbitrator;

A“Emergency Arbitrator” means an arbitrator appointed inaccordance with paragraph 3 of Schedule 1;”

“Rule 30: Interim and Emergency Relief

30.1. The Tribunal may, at the request of party, issue an orderor an Award granting an injunction or any other interim relief itBdeems appropriate. The Tribunal may order the party requestinginterim relief to provide appropriate security in connection withthe relief sought.

30.2. party that wishes to seek emergency interim relief priorto the constitution of the Tribunal may apply for such relief pursuantto the procedures set forth in Schedule 1.

30.3. request for interim relief made by party to judicialauthority prior to the constitution of the Tribunal, or in exceptionalcircumstances thereafter, is not incompatible with these Rules.”

“SCHEDULE 1 EMERGENCY ARBITRATORD

1. party that wishes to seek emergency interim relief may,concurrent with or following the filing of Notice of Arbitrationbut prior to the constitution of the Tribunal, file an application foremergency interim relief with the Registrar. The party shall, atthe same time as it files the application for emergency interimErelief, send copy of the application to all other parties. Theapplication for emergency interim relief shall include:

a.the nature of the relief sought;

b.the reasons why the party is entitled to such relief; and

c.a statement certifying that all other parties have beenprovided with copy of the application or, if not, anexplanation of the steps taken in good faith to provide acopy or notification to all other parties.

3. The President shall, if he determines that SIAC should acceptthe application for emergency interim relief, seek to appoint anEmergency Arbitrator within one day of receipt by the Registrarof such application and payment of the administration fee anddeposits.

4. If the parties have agreed on the seat of the arbitration, suchseat shall be the seat of the proceedings for emergency interimrelief. Failing such an agreement, the seat of the proceedings foremergency interim relief shall be Singapore, without prejudice tothe Tribunal’s determination of the seat of the arbitration underRule 21.1.

5. Prior to accepting appointment, prospective EmergencyArbitrator shall disclose to the Registrar any circumstances thatmay give rise to justifiable doubts as to his impartiality orindependence. Any challenge to the appointment of the EmergencyArbitrator must be made within two days of the communicationby the Registrar to the parties of the appointment of the EmergencyArbitrator and the circumstances disclosed.

6. An Emergency Arbitrator may not act as an arbitrator in anyfuture arbitration relating to the dispute, unless otherwise agreedby the parties.

8. The Emergency Arbitrator shall have the power to order oraward any interim relief that he deems necessary, includingpreliminary orders that may be made pending any hearing,telephone or video conference or written submissions by theparties. The Emergency Arbitrator shall give summary reasonsfor his decision in writing. The Emergency Arbitrator may modifyor vacate the preliminary order, the interim order or Award forgood cause.

9. The Emergency Arbitrator shall make his interim order or Awardwithin 14 days from the date of his appointment unless, inexceptional circumstances, the Registrar extends the time. Nointerim order or Award shall be made by the Emergency Arbitratoruntil it has been approved by the Registrar as to its form.

10. The Emergency Arbitrator shall have no power to act afterthe Tribunal is constituted. The Tribunal may reconsider, modifyor vacate any interim order or Award issued by the EmergencyArbitrator, including ruling on his own jurisdiction. The Tribunalis not bound by the reasons given by the Emergency Arbitrator.Any interim order or Award issued by the Emergency Arbitratorshall, in any event, cease to be binding if the Tribunal is not

Aconstituted within 90 days of such order or Award or when theTribunal makes final Award or if the claim is withdrawn.

12. The parties agree that an order or Award by an EmergencyArbitrator pursuant to this Schedule 1 shall be binding on the partiesBfrom the date it is made, and undertake to carry out the interimorder or Award immediately and without delay. The parties alsoirrevocably waive their rights to any form of appeal, review orrecourse to any State court or other judicial authority with respectto such Award insofar as such waiver may be validly made.”

C25. reading of the aforesaid Rules indicates that even before anarbitral Tribunal is constituted under the Rules, urgent interim reliefs canbe granted by what is termed as an “Emergency Arbitrator”. An“Emergency Arbitrator” is defined by Rule 1.3 of these Rules as meaningan arbitratorappointed in accordance with paragraph 3 of Schedule 1.DUnder paragraph 7 of Schedule 1, the Emergency Arbitrator has all thepowers vested in the arbitral tribunal pursuant to SIAC Rules, includingthe authority to rule on his own jurisdiction. Importantly, under paragraph8 of Schedule 1 to the SIAC Rules, the Emergency Arbitrator shall havethe power to order such interim relief that he deems necessary, and is togive summary reasons for his decision in writing. Under paragraph 9,Ethe interim order is to be made within 14 days of his appointment, unlesstime is extended. Importantly, once the arbitral tribunal is constitutedunder paragraph 10, the tribunal may reconsider, modify, or vacate anysuch interim order. Such interim order or award issued by the EmergencyArbitrator will continue to bind the parties unless it is modified or vacatedFby the arbitral tribunal, once it is constituted, until the tribunal makes afinal award or until the claim is withdrawn. Paragraph 10 of Schedule 1also provides that any interim order or award made by the EmergencyArbitrator shall cease to be binding only if the tribunal is not constitutedwithin 90 days of such order or award. Under paragraph 12, the partiesagree that such orders shall be binding on the parties from the date it isGmade and undertake to carry out the interimorder immediately and withoutdelay.

26. No doubt, as has been submitted, the 246[th] Law CommissionReport did provide for the insertion of an Emergency Arbitrator’s ordersinto Section 2(1)(d) of the Arbitration Act as follows:H

“Amendment of Section 2

1. In section 2 of the Arbitration and Conciliation Act, 1996,–

(i) In sub-section (1), clause (d), after the words “…panel ofarbitrators” add “and, in the case of an arbitration conducted underthe rules of an institution providing for appointment of anemergency arbitrator, includes such emergency arbitrator;”

[NOTE: This amendment is to ensure that institutional rules suchas the SIAC Arbitration Rules which provide for an emergencyarbitrator are given statutory recognition in India.]”

27. As has been held in Avitel Post Studioz Ltd. & Ors. v.HSBC PI Holdings (Mauritius) Ltd., (2021) 4 SCC 713, the merefact that recommendation of Law Commission Report is not followedby Parliament, would not necessarily lead to the conclusion that whathas been suggested by the Law Commission cannot form part of thestatute as properly interpreted. This Court held:

“27. Mr Saurabh Kirpal took exception to Sikri, J.’s judgment inthat Sikri, J. did not refer to Para 52 of the 246th Law CommissionReport and its aftermath. Para 52 of the 246th Law CommissionReport reads as follows:

“52. The Commission believes that it is important to set thisentire controversy to rest and make issues of fraud expresslyarbitrable and to this end has proposed amendments to Section16.”

The Law Commission then added, by way of amendment, aproposed Section 16(7) as follows:

“Amendment of Section 16

10. In Section 16,

After sub-section (6), insert sub-section “(7) The ArbitralTribunal shall have the power to make an award or give aruling notwithstanding that the dispute before it involves aserious question of law, complicated questions of fact orallegations of fraud, corruption, etc.”

[Note: This amendment is proposed in the light of the SupremeCourt decisions (e.g. N. Radhakrishnan v. Maestro

Engineers [N. Radhakrishnan v. Maestro Engineers, (2010)1 SCC 72 : (2010) 1 SCC (Civ) 12]) which appear to denudean Arbitral Tribunal of the power to decide on issues of fraud,etc.]”

28. Mr Saurabh Kirpal then referred to the fact that the aforesaidBsub-section was not inserted by Parliament by the 2015Amendment Act, which largely incorporated other amendmentsproposed by the Law Commission. His argument therefore wasthat N. Radhakrishnan [N. Radhakrishnan v. MaestroEngineers, (2010) 1 SCC 72] not having been legislativelyoverruled, cannot now be said to be in any way deprived of itsCprecedential value, as Parliament has taken note of the proposedSection 16(7) in the 246th Law Commission Report, and hasexpressly chosen not to enact it. For this proposition, he referredto La Pintada [President of India v. La Pintada CompaniaNavigacion SA, 1985 AC 104 : (1984) 3 WLR 10 (HL)]. ThisDjudgment related to challenge to an award granting compoundinterest, inter alia, in case where debt is paid late, but beforeany proceedings for its recovery had begun.

28. He then referred to the fact that the aforesaid sub-sectionwas not inserted by Parliament by the 2015 Amendment Act,Ewhich largely incorporated other amendments proposed by theLaw Commission. His argument therefore was that N.Radhakrishnan [N. Radhakrishnan v. Maestro Engineers,(2010) 1 SCC 72] not having been legislatively overruled, cannotnow be said to be in any way deprived of its precedential value,as Parliament has taken note of the proposed section 16(7) in theF246[th] Law Commission Report, and has expressly chosen not toenact it. For this proposition, he referred to La Pintada (supra).This judgment related to challenge to an award grantingcompound interest, inter alia, in case where debt is paid late,but before any proceedings for its recovery had begun.

29. Lord Brandon of Oakbrook, who wrote the main judgment inthis case, stated: (La Pintada case [President of India v. LaPintada Compania Navigacion SA, 1985 AC 104 : (1984) 3WLR 10 (HL)] , AC p. 122)

“There are three cases in which the absence of any commonlaw remedy for damage or loss caused by the late payment of

debt may arise, cases which I shall in what follows describefor convenience as Case 1, Case 2 and Case 3. Case 1 iswhere debt is paid late, before any proceedings for itsrecovery have been begun. Case 2 is where debt is paid late,after proceedings for its recovery have been begun, but beforethey have been concluded. Case 3 is where debt remainsunpaid until as result of proceedings for its recovery beingbrought and prosecuted to conclusion, money judgment isgiven in which the original debt becomes merged.”

“32. It is little difficult to apply this case to resurrect the ratio ofN. Radhakrishnan [N. Radhakrishnan v. Maestro Engineers,(2010) 1 SCC 72] as binding precedent given the advance madein the law by this Court since N. Radhakrishnan was decided.Quite apart from what has been stated by us in paras 17 to 21above, as to how N. Radhakrishnan cannot be considered to bea binding precedent for the reasons given in the said paragraph,we are of the view that the development of the law by this Courtcannot be thwarted merely because certain provisionrecommended in Law Commission Report is not enacted byParliament. Parliament may have felt, as was mentioned by LordReid in British Railways Board v. Herrington [British RailwaysBoard v. Herrington, 1972 AC 877 : 1972 2 WLR 537 (HL)] ,that it was unable to make up its mind and instead, leave it to thecourts to continue, case by case, deciding upon what shouldconstitute the fraud exception. [This case is referred to in LordBrandon’s judgment in La Pintada, 1985 AC 104 : (1984) 3 WLR10 (HL) and distinguished at AC p. 130 of his judgment.]Parliament may also have thought that Section 16(7), proposedby the Law Commission, is clumsily worded as it speaks of “aserious question of law, complicated questions of fact, or allegationsof fraud, corruption, etc.” N. Radhakrishnan did not lay downthat serious questions of law or complicated questions of fact arenon-arbitrable. Further, “allegations of fraud, corruption, etc.” isvague. For this reason also, Parliament may have left it to thecourts to work out the fraud exception. In any case, we havepointed out that dehors any such provision, the ratio in N.Radhakrishnan, being based upon judgment under the 1940Act, and without considering Sections 5, 8 and 16 of the 1996 Act

Ain their proper perspective, would all show that the law laid downin this case cannot now be applied as precedent for applicationof the fraud mantra to negate arbitral proceedings. For the reasonsgiven in this judgment, the House of Lords’ decision would haveno application inasmuch as N. Radhakrishnan has been tackledon the judicial side and has been found to be wanting.”

28. It is pertinent to note that the High-Level Committeeconstituted by the Government of India under the chairmanship of JusticeB.N. Srikrishna (Retd.) to review the institutionalisation of arbitrationmechanism in India and look into the provisions of the Arbitration Actafter the 2015 Amendment Act, submitted report on 30[th] July, 2017C[“Srikrishna Committee Report”], in which it is stated as follows:

“16. Enforcement of emergency awards

There is significant uncertainty in the law regarding theenforceability of emergency awards in arbitrations seated in India.DThe LCI in its 246[th] Report had recommended recognising theconcept of emergency arbitrator by widening the definition ofarbitral tribunal under section 2(d) of the ACA to include emergencyarbitrator. However, this recommendation was not incorporatedin the 2015 Amendment Act.

While one could possibly rely on section 17(2) of the ACA toenforce emergency awards for arbitrations seated in India, theDelhi High Court decision in Raffles Design International IndiaPvt. Ltd.& Anr. v. Educomp Professional Education Ltd. &Ors., (2016) 234 DLT 349 held that an emergency award in anarbitration seated outside India is not enforceable in India.

India’s approach differs from that of developed arbitrationjurisdictions such as Singapore and Hong Kong which haverecognised the enforceability of orders given by an emergencyarbitrator. Singapore amended the IAA in 2012 to broaden thedefinition of ‘arbitral tribunal’ in section 2(1) to include emergencyarbitrator(s). Hong Kong amended the AO in 2013 to include Part3A which deals with the enforcement of emergency relief. Section22B provides that emergency relief granted by an emergencyarbitrator shall with the leave of the Court of First Instance of theHigh Court be enforceable in the same manner as an order ordirection of the Court.

Given that international practice is in favour of enforcingemergency awards (Singapore, Hong Kong and the UnitedKingdom all permit enforcement of emergency awards), it is timethat India permitted the enforcement of emergency awards in allarbitral proceedings. This would also provide legislative supportto rules of arbitral institutions that presently provide for emergencyarbitrators (See Dennis Nolan and Roger Abrams, ‘ArbitralImmunity’, Berkeley Journal of Employment and Labour Law,Vol. 11 Issue 2 (1989), pp.228–266). For this purpose, therecommendation made by the LCI in its 246[th] Report may beadopted.”

29. The Delhi High Court judgment in Raffles DesignInternational India Pvt. Ltd. v. Educomp Professional EducationLtd., 2016 SCC OnLine Del 5521 : (2016) 234 DLT 349 dealt with anaward by an Emergency Arbitrator in an arbitration seated outside India(as was mentioned in Srikrishna Committee Report). What is ofsignificance is that the said Report laid down that it is possible to interpretSection 17(2) of the Act to enforce emergency awards for arbitrationsseated in India, and recommended that the Act be amended only so thatit comes in line with international practice in favour of recognising andenforcing an emergency award.

30. It is relevant to note that the 246[th] Law Commission Reportalso recommended the insertion of Section 9(2) and 9(3) as follows:

“Amendment of Section 9

6. In section 9,

(i) before the words “A party may, before” add sub-section “(1)”

(ii) after the words “any proceedings before it” add sub-section“(2) Where, before the arbitral proceedings, Court grants anyinterim measure of protection under sub-section (1), the arbitralproceedings shall be commenced within 60 days from the date ofsuch grant or within such shorter or further time as indicated bythe Court, failing which the interim measure of protection shallcease to operate.

[NOTE: This amendment is to ensure the timely initiation ofarbitration proceedings by party who is granted an interimmeasure of protection.]

A(iii) Add sub-section “(3) Once the Arbitral Tribunal has beenconstituted, the Court shall, ordinarily, not entertain an Applicationunder this provision unless circumstances exist owing to whichthe remedy under section 17 is not efficacious.”

[NOTE: This amendment seeks to reduce the role of the Court inBrelation to grant of interim measures once the Arbitral Tribunalhas been constituted. After all, once the Tribunal is seized of thematter it is most appropriate for the Tribunal to hear all interimapplications. This also appears to be the spirit of the UNCITRALModel Law as amended in 2006.

CAccordingly, section 17 has been amended to provide the ArbitralTribunal the same powers as Court would have under section9]”

31. The 2015 Amendment Act, therefore, introduced sub-sections(2) and (3) To Section 9, which read as follows:

D“9. Interim measures, etc. by Court.—

(2) Where, before the commencement of the arbitral proceedings,a court passes an order for any interim measure of protectionunder sub-section (1), the arbitral proceedings shall be commencedEwithin period of ninety days from the date of such order orwithin such further time as the court may determine.

(3) Once the arbitral tribunal has been constituted, the court shallnot entertain an application under sub-section (1), unless the courtfinds that circumstances exist which may not render the remedyFprovided under Section 17 efficacious.”

32. In essence, what is provided by the SIAC Rules and the otherinstitutional rules, is reflected in Sections 9(2) and 9(3) so far as interimorders passed by courts are concerned. The introduction of Sections9(2) and 9(3) would show that the objective was to avoid courts beingGflooded with Section 9 petitions when an arbitral tribunal is constitutedfor two good reasons – (i) that the clogged court system ought to bedecongested, and (ii) that an arbitral tribunal, once constituted, would beable to grant interim relief in timely and efficacious manner.

33. Similarly, the 246[th] Law Commission Report recommendedthe amendment of Section 17 as follows:

“Amendment of Section 17

11. In section 17

(vi) In sub-section (1), after sub-clause “(d)”, insert sub-clause“(e) such other interim measure of protection as may appear tothe Arbitral Tribunal to be just and convenient, and the arbitraltribunal shall have the same power for making orders as the Courthas for the purpose of, and in relation to, any proceedings beforeit.”

[NOTE: This is to provide the arbitral tribunal the same powersas civil court in relation to grant of interim measures. When thisprovision is read in conjunction with section 9(2), parties will bydefault be forced to approach the Arbitral Tribunal for interimrelief once the Tribunal has been constituted. The Arbitral Tribunalwould continue to have powers to grant interim relief post-award.This regime would decrease the burden on Courts. Further, thiswould also be in tune with the spirit of the UNCITRAL ModelLaw as amended in 2006.]

(vii) delete words in sub-section (2) and add the words “(2) Subjectto any orders passed in appeal under section 37, any order issuedby the arbitral tribunal under this section shall be deemed to be anOrder of the Court for all purposes and shall be enforceable underthe Code of Civil Procedure, 1908 in the same manner as if itwere an Order of the Court.”

[NOTE: This is to ensure the effective enforcement of interimmeasures that may be ordered by an arbitral tribunal.]”

34. Section 17 was then amended by the very same 2015Amendment Act (which brought in sub-sections (2) and (3) to Section9) to substitute Section 17 so that Section 17(1) would be mirror imageof Section 9(1), making it clear that an arbitral tribunal is fully clothedwith the same power as court to provide for interim relief. Also, Section17(2) was added so as to provide for enforceability of such orders, again,as if they were orders passed by court, thereby bringing Section 17 onpar with Section 9.

A35. An Emergency Arbitrator’s “award”, i.e., order, wouldundoubtedly be an order which furthers these very objectives, i.e., todecongest the court system and to give the parties urgent interim reliefin cases which deserve such relief. Given the fact that party autonomyis respected by the Act and that there is otherwise no interdict againstan Emergency Arbitrator being appointed, as has been held by usBhereinabove, it is clear that an Emergency Arbitrator’s order, which isexactly like an order of an arbitral tribunal once properly constituted, inthat parties have to be heard and reasons are to be given, would fallwithin the institutional rules to which the parties have agreed, and wouldconsequently be covered by Section 17(1), when read with the otherCprovisions of the Act, as delineated above.

36. party cannot be heard to say, after it participates in anEmergency Award proceeding, having agreed to institutional rules madein that regard, that thereafter it will not be bound by an EmergencyArbitrator’s ruling. As we have seen hereinabove, having agreed toDparagraph 12 of Schedule 1 to the SIAC Rules, it cannot lie in the mouthof party to ignore an Emergency Arbitrator’s award by stating that it isa nullity when such party expressly agrees to the binding nature of suchaward from the date it is made and further undertakes to carry out thesaid interim order immediately and without delay.E37. However, Mr. Viswanathan argued that an EmergencyArbitrator under the SIAC Rules is not an independent judicial body likean arbitral tribunal constituted under the very Rules, and referred to andrelied upon Rules 3, 9, and 10 to buttress this proposition. Rule 3 merelystates that the President may appoint an Emergency Arbitrator if hedetermines that the SIAC should accept the application for emergencyFinterim relief. Once the Emergency Arbitrator enters upon the reference,he is given all the powers of an arbitral tribunal under Rule 7 and is todecide completely independently of any other administrative authorityunder the SIAC Rules. Equally, Rule 9 does not, in any manner, impingeupon the independence of the Emergency Arbitrator as it only lays downGthe timeframe within which an interim order or award is to be made,which time is extendable by the Registrar. The interim order or awardthat is finally made by the Emergency Arbitrator has only to be approvedby the Registrar as to its “form” and not on merits. Further, Rule 10 alsodoes not, in any manner, interfere with the independence of the decisionof the Emergency Arbitrator. This argument is, therefore, rejected.H

38. Mr. Viswanathan also went on to argue, relying upon Section28 of the Contract Act, Justice R.S. Bachawat’s Law of Arbitrationand Conciliation (Sixth Ed., LexisNexis), and the Chancery Divisionjudgment of In Re Franklin and Swathling’s Arbitration, [1929] 1Ch. 238, for the proposition that arbitration, conceptually, is an ouster ofthe civil court’s jurisdiction and that, therefore, only what is expresslyprovided in the ouster provisions can be followed – there is no room forany implication here. This argument may have found favour with courtif it were dealing with Arbitration Act, 1940. As has been held in severaldecisions of this Court, the Arbitration and Conciliation Act, 1996 is acomplete break with the past and is no longer to be viewed as an ousterstatute but as statute which favours the remedy of arbitration so as tode-clog civil courts which are, in today’s milieu, extremely burdened. Asa matter of fact, Section 5 of the Arbitration Act puts paid to thesubmission when it overrides all other laws for the time being in forceand goes on to state that in matters governed by Part I of the Act, nojudicial authority shall intervene except where so provided in that Part.The Arbitration Act, therefore, turns the principle of ouster on its headwhen it comes to arbitration as favoured means of resolving civildisputes. This argument also, therefore, stands rejected.

39. Even otherwise, as has been correctly pointed out by Mr.Subramanium, no order bears the stamp of invalidity on its forehead andhas to be set aside in regular court proceedings as being illegal. This isfelicitously stated in several judgments – See Krishnadevi MalchandKamathia v. Bombay Environmental Action Group, (2011) 3 SCC363 (at paragraphs 16 to 19), and Anita International v. TungabadraSugar Works Mazdoor Sangh, (2016) 9 SCC 44 (at paragraphs 54and 55). As matter of fact, in Tayabbhai M. Bagasarwalla v. HindRubber Industries (P) Ltd., (1997) 3 SCC 443, this Court hasunequivocally held that even if an order is later set aside as having beenpassed without jurisdiction, for the period of its subsistence, it is an orderthat must be obeyed. This Court held:“15. The next thing to be noticed is that certain interim orderswere asked for and were granted by the Civil Court during thisperiod. Would it be right to say that violation of and disobedienceto the said orders of injunction is not punishable because it hasbeen found later that the Civil Court had no jurisdiction to entertainthe suit. Mr Sorabjee suggests that saying so would be subversive

of the Rule of Law and would seriously erode the majesty anddignity of the courts. It would mean, suggests the learned counsel,that it would be open to the defendants-respondents to decide forthemselves whether the order was with or without jurisdictionand act upon that belief. This can never be, says the learnedcounsel. He further suggests that if any party thinks that an ordermade by the Civil Court is without jurisdiction or is contrary tolaw, the appropriate course open to him is to approach that courtwith that plea and ask for vacating the order. But it is not open tohim to flout the said order assuming that the order is withoutjurisdiction. It is this principle which has been recognised andincorporated in Section 9-A of Civil Procedure Code (inserted byMaharashtra Amendment Act No. 65 of 1977), says Mr Sorabjee.Section 9-A reads as follows:

“9-A. Where at the hearing of an application relatingto interim relief in suit, objection to jurisdiction is taken, suchissue to be decided by the Court as preliminary issue.—(1)Notwithstanding anything contained in this Code or any other lawfor the time being in force, if, at the hearing of any application forgranting or setting aside an order granting any interim relief, whetherby way of stay injunction, appointment of receiver or otherwise,made in any suit, an objection to the jurisdiction of the Court toentertain such suit is taken by any of the parties to the suit, theCourt shall proceed to determine at the hearing of such applicationthe issue as to the jurisdiction as preliminary issue before grantingor setting aside the order granting the interim relief. Any suchapplication shall be heard and disposed of by the Court asexpeditiously as possible and shall not in any case be adjourned tothe hearing of suit.

(2) Notwithstanding anything contained in sub-section (1),at the hearing of any such application, the Court may grant suchinterim relief as it may consider necessary, pending determinationby it of the preliminary issue as to the jurisdiction.”

16. According to this section, if an objection is raised to thejurisdiction of the court at the hearing of an application for grantof, or for vacating, interim relief, the court should determine thatissue in the first instance as preliminary issue before granting orsetting aside the relief already granted. An application raising

objection to the jurisdiction to the court is directed to be heardwith all expedition. Sub-rule (2), however, says that the commandin sub-rule (1) does not preclude the court from granting suchinterim relief as it may consider necessary pending the decisionon the question of jurisdiction. In our opinion, the provision merelystates the obvious. It makes explicit what is implicit in law. Justbecause an objection to the jurisdiction is raised, the court doesnot become helpless forthwith — nor does it become incompetentto grant the interim relief. It can. At the same time, it should alsodecide the objection to jurisdiction at the earliest possible moment.This is the general principle and this is what Section 9-A reiterates.Take this very case. The plaintiff asked for temporary injunction.An ad interim injunction was granted. Then the defendants cameforward objecting to the grant of injunction and also raising anobjection to the jurisdiction of the court. The court overruled theobjection as to jurisdiction and made the interim injunction absolute.The defendants filed an appeal against the decision on the questionof jurisdiction. While that appeal was pending, several other interimorders were passed both by the Civil Court as well as by the HighCourt. Ultimately, no doubt, the High Court has found that theCivil Court had no jurisdiction to entertain the suit but all this tookabout six years. Can it be said that orders passed by the CivilCourt and the High Court during this period of six years were allnon est and that it is open to the defendants to flout them merrily,without fear of any consequence. Admittedly, this could not bedone until the High Court’s decision on the question of jurisdiction.The question is whether the said decision of the High Court meansthat no person can be punished for flouting or disobeying theinterim/interlocutory orders while they were in force, i.e., forviolations and disobedience committed prior to the decision of theHigh Court on the question of jurisdiction. Holding that by virtueof the said decision of the High Court (on the question ofjurisdiction), no one can be punished thereafter for disobedienceor violation of the interim orders committed prior to the saiddecision of the High Court, would indeed be subversive of theRule of Law and would seriously erode the dignity and the authorityof the courts. We must repeat that this is not even case wherea suit was filed in the wrong court knowingly or only with viewto snatch an interim order. As pointed out hereinabove, the suit

was filed in the Civil Court bona fide. We are of the opinion that insuch case the defendants cannot escape the consequences oftheir disobedience and violation of the interim injunction committedby them prior to the High Court’s decision on the question ofjurisdiction.

“27. The learned counsel for Defendants 1 and 2 submitted thatthis is not proceeding for contempt but proceeding under Rule2-A of Order 39 of the Civil Procedure Code. The learned counselsubmitted that proceedings under Order 39 Rule 2-A are part ofthe coercive process to secure obedience to its injunction and thatonce it is found that the Court has no jurisdiction, question ofsecuring obedience to its orders any further does not arise. Thelearned counsel also submitted that enforcing the interim orderafter it is found that the Court had no jurisdiction to try the saidsuit would not only be unjust and illegal but would also reflectadversely upon the dignity and authority of the Court. It is alsosuggested that the plaintiff had instituted the present suit in theCivil Court knowing fully well that it had no jurisdiction to try it. Itis not possible to agree with any of these submissions not only onprinciple but also in the light of the specific provision contained inSection 9-A of the Code of Civil Procedure (MaharashtraAmendment). In the light of the said provision, it would not beright to say that the Civil Court had no jurisdiction to pass interimorders or interim injunction, as the case may be, pending decisionon the question of jurisdiction. The orders made were within thejurisdiction of the Court and once this is so, they have to be obeyedand implemented. It is not as if the defendants are being sought tobe punished for violations committed after the decision of theHigh Court on the question of jurisdiction of the Civil Court. Herethe defendants are sought to be punished for the disobedienceand violation of the order of injunction committed before thedecision of the High Court in Vishanji Virji Mepani [AIR 1996Bom 366]. According to Section 9-A, the Civil Court and the HighCourt did have the power to pass interim orders until that decision.If they had that power, they must also have the power to enforcethem. In the light of the said provision, it cannot also be held thatthose orders could be enforced only till the said decision but not

thereafter. The said decision does not render them (the interimorders passed meanwhile) either non est or without jurisdiction.Punishing the defendants for violation of the said orders committedbefore the said decision (Vishanji Virji Mepani [AIR 1996 Bom366]) does not amount, in any event, to enforcing them after thesaid decision. Only the orders are being passed now. The violationsare those committed before the said decision.”

40. However, learned counsel for the Respondents referred toand relied upon the classic passage in Kiran Singh v. Chaman Paswan,(1955) 1 SCR 117 (at page 122) and various other judgments following itto contend that in cases of inherent lack of jurisdiction, it would be opento party to ignore an award by an Emergency Arbitrator. They alsoreferred to the judgment in CIT v. Pearl Mechanical Engineering &Foundry Works (P) Ltd., (2004) 4 SCC 597, where this Court spokeof the jurisdiction of court or tribunal by stating that such jurisdictiononly subsists when court or tribunal exercises such jurisdiction fromthe law. It is power which nobody on whom the law is not conferredcan exercise. None of these judgments are applicable in the fact situationof the present case. On the contrary, we have pointed out that no party,after agreeing to be governed by institutional rules, can participate in aproceeding before an Emergency Arbitrator and, after losing, turn aroundand say that the award is nullity or coram non judice when there isnothing in the Arbitration Act which interdicts an Emergency Arbitrator’sorder from being made. As has been pointed out, Section 17, as construedin the light of the other provisions of the Act, clearly leads to the positionthat such emergency award is made under the provisions of Section17(1) and can be enforced under the provisions of Section 17(2).

41. We, therefore, answer the first question by declaring that fullparty autonomy is given by the Arbitration Act to have dispute decidedin accordance with institutional rules which can include EmergencyArbitrators delivering interim orders, described as “awards”. Such ordersare an important step in aid of decongesting the civil courts and affordingexpeditious interim relief to the parties. Such orders are referable to andare made under Section 17(1) of the Arbitration Act.

42. We now come to the question as to the maintainability of theappeal that has been filed under Order XLIII, Rule 1(r). Order XLIII,Rule 1(r) reads as under:

828SUPREME COURT REPORTS

A“ORDER XLIII – Appeals from Orders

1. Appeals from orders.—An appeal shall lie from the followingorders under the provisions of Section 104, namely:—

B(r) an order under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 ofOrder XXXIX;”

43. In order to answer this question, it is important to advert toSections 9, 17, and 37 of the Arbitration Act. Section 9(1) reads as follows:

“9. Interim measures, etc. by Court.—(1) party may, beforeCor during arbitral proceedings or at any time after the making ofthe arbitral award but before it is enforced in accordance withSection 36, apply to Court:—

(i)for the appointment of guardian for minor or personof unsound mind for the purposes of arbitral proceedings;Dor

(ii)for an interim measure of protection in respect of any ofthe following matters, namely:—

(a)the preservation, interim custody or sale of any goodswhich are the subject-matter of the arbitrationEagreement;

(b)securing the amount in dispute in the arbitration;

(c)the detention, preservation or inspection of anyproperty or thing which is the subject-matter of theFdispute in arbitration, or as to which any questionmay arise therein and authorising for any of theaforesaid purposes any person to enter upon any landor building in the possession of any party, orauthorising any samples to be taken or any observationto be made, or experiment to be tried, which may beGnecessary or expedient for the purpose of obtainingfull information or evidence;

(d)interim injunction or the appointment of receiver;

(e)such other interim measure of protection as mayappear to the Court to be just and convenient,

and the Court shall have the same power for making orders as ithas for the purpose of, and in relation to, any proceedings beforeit.”

After the 2015 Amendment Act, Section 17(1), which, as hasbeen stated hereinabove, is now mirror image of Section 9(1), reads asfollows:

“17. Interim measures ordered by arbitral tribunal.—(1) Aparty may, during the arbitral proceedings, apply to the arbitraltribunal—

(i)for the appointment of guardian for minor or person ofCunsound mind for the purposes of arbitral proceedings; or

(ii)for an interim measure of protection in respect of any ofthe following matters, namely—

(a)the preservation, interim custody or sale of any goodswhich are the subject matter of the arbitrationDagreement;

(b)securing the amount in dispute in the arbitration;

(c)the detention, preservation or inspection of anyproperty or thing which is the subject matter of thedispute in arbitration, or as to which any questionEmay arise therein and authorising for any of theaforesaid purposes any person to enter upon any landor building in the possession of any party, orauthorising any samples to be taken, or anyobservation to be made, or experiment to be tried,Fwhich may be necessary or expedient for the purposeof obtaining full information or evidence;

(d)interim injunction or the appointment of receiver;

(e)such other interim measure of protection as mayappear to the arbitral tribunal to be just andconvenient,

and the arbitral tribunal shall have the same power for makingorders, as the court has for the purpose of, and in relation to, anyproceedings before it.”

ASection 17(2), which was also introduced by the same AmendmentAct, reads:

“17. Interim measures ordered by arbitral tribunal.—

(2) Subject to any orders passed in an appeal under section 37,any order issued by the arbitral tribunal under this section shall bedeemed to be an order of the court for all purposes and shall beenforceable under the Code of Civil Procedure, 1908 (5 of 1908),in the same manner as if it were an order of the court.”

Section 37, within the four corners of which appeals against ordersare to be made under the Arbitration Act, reads as follows:

“37. Appealable orders.—(1) Notwithstanding anythingcontained in any other law for the time being in force, an appealshall lie from the following orders (and from no others) to theDcourt authorised by law to hear appeals from original decrees ofthe Court passing the order, namely:—

(a)refusing to refer the parties to arbitrationunder Section8;

(b)granting or refusing to grant any measure under Section9;

(c)setting aside or refusing to set aside an arbitral awardunder Section 34.(2) An appeal shall also lie to court from an order of the arbitraltribunal—

(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 underSection 17.

(3) No second appeal shall lie from an order passed in appealunder this section, but nothing in this section shall affect or takeaway any right to appeal to the Supreme Court.”

44. As has been pointed out hereinabove, the Law Commissionrecommended an amendment to Section 17 to provide the arbitral tribunalHthe same powersas court would have under Section 9.

45. Section 9(1), after setting out in clauses (i) and (ii) what interimmeasures or protection could be granted, then goes on to add, “and thecourt shall have the same power for making orders as it has for thepurpose of, and in relation to,any proceedings before it”.

46. The italicised words arose for interpretation in Adhunik SteelsLtd. v. Orissa Manganese and Minerals (P) Ltd., (2007) 7 SCC125. In paragraph 11 of the judgment, this Court held:

“11. It is true that Section 9 of the Act speaks of the court by wayof an interim measure passing an order for protection, for thepreservation, interim custody or sale of any goods, which are thesubject-matter of the arbitration agreement and such interimmeasure of protection as may appear to the court to be just andconvenient. The grant of an interim prohibitory injunction or aninterim mandatory injunction are governed by well-known rulesand it is difficult to imagine that the legislature while enactingSection 9 of the Act intended to make provision which wasdehors the accepted principles that governed the grant of an interiminjunction. Same is the position regarding the appointment of areceiver since the section itself brings in the concept of “just andconvenient” while speaking of passing any interim measure ofprotection. The concluding words of the section, “and the courtshall have the same power for making orders as it has for thepurpose and in relation to any proceedings before it” also suggestthat the normal rules that govern the court in the grant of interimorders is not sought to be jettisoned by the provision. Moreover,when party is given right to approach an ordinary court of thecountry without providing special procedure or special set ofrules in that behalf, the ordinary rules followed by that court wouldgovern the exercise of power conferred by the Act. On that basisalso, it is not possible to keep out the concept of balance ofconvenience, prima facie case, irreparable injury and the conceptof just and convenient while passing interim measures underSection 9 of the Act.”

47. Quite apart from the above, the language of the last part ofSection 9(1) clearly refers to Section 94 of the Code of Civil Procedureread with Order XXXIX thereof. Section 94 of the Code of CivilProcedure reads as follows:

832SUPREME COURT REPORTS

A“94. Supplemental proceedings.—In order to prevent the endsof justice from being defeated the Court may, if it is soprescribed,—

(a)issue warrant to arrest the defendant and bring him beforethe Court to show cause why he should not give securityBfor his appearance, and if he fails to comply with any orderfor security commit him to the civil prison;

(b)direct the defendant to furnish security to produce anyproperty belonging to him and to place the same at thedisposal of the Court or order the attachment of anyCproperty;

(c)grant temporary injunction and in case of disobediencecommit the person guilty thereof to the civil prison and orderthat his property be attached and sold;

(d)appoint receiver of any property and enforce theDperformance of his duties by attaching and selling hisproperty;

(e)make such other interlocutory orders as may appear to theCourt to be just and convenient.”

Order XXXIX, Rules 1, 2, and 2-A read as follows:E“ORDER XXXIX

Temporary injunctions

1. Cases in which temporary injunction may be granted.—Where in any suit it is proved by affidavit or otherwise—

(a)that any property in dispute in suit is in danger of beingwasted, damaged or alienated by any party to the suit, orwrongfully sold in execution of decree, or

(b)that the defendant threatens, or intends, to remove or disposeof his property with view to defrauding his creditors,

(c)that the defendant threatens to dispossess the plaintiff orotherwise cause injury to the plaintiff in relation to anyproperty in dispute in the suit,

the Court may by order grant temporary injunction to restrainHsuch act, or make such other order for the purpose of staying and

preventing the wasting, damaging, alienation, sale, removal ordisposition of the property or dispossession of the plaintiff, orotherwise causing injury to the plaintiff in relation to any propertyin dispute in the suit] as the Court thinks fit, until the disposal ofthe suit or until further orders.

2. Injunction to restrain repetition or continuance ofbreach.—(1) In any suit for restraining the defendant fromcommitting breach of contract or other injury of any kind,whether compensation is claimed in the suit or not, the plaintiffmay, at any time after the commencement of the suit, and eitherbefore or after judgment, apply to the Court for temporaryinjunction to restrain the defendant from committing the breachof contract or injury complained of, or any breach of contract orinjury of like kind arising out of the same contract or relating tothe same property or right.

(2) The Court may by order grant such injunction, on such termsas to the duration of the injunction, keeping an account, givingsecurity, or otherwise, as the Court thinks fit.

2-A. Consequence of disobedience or breach of injunction.

—(1) In the case of disobedience of any injunction granted orother order made under Rule 1 or Rule 2 or breach of any of theterms on which the injunction was granted or the order made, ofthe Court granting the injunction or making the order, or any Courtto which the suit or proceeding is transferred, may order theproperty of the person guilty of such disobedience or breach to beattached, and may also order such person to be detained in thecivil prison for term not exceeding three months, unless in themeantime the Court directs his release.

(2) No attachment made under this rule shall remain in force formore than one year, at the end of which time, if the disobedienceor breach continues, the property attached may be sold and out ofthe proceeds, the Court may award such compensation as it thinksfit to the injured party and shall pay the balance, if any, to theparty entitled thereto.”

Prior to the Code of Civil Procedure (Amendment) Act, 1976[“1976 Amendment Act”], disobedience of an injunction or breach of

Aany of its terms was enforced under sub-rules (3) and (4) of OrderXXXIX, Rule 2 as follows:

“2. Injunction to restrain repetition or continuance ofbreach.—

(3) In case of disobedience, or of breach of any such terms, theCourt granting an injunction may order the property of the personguilty of such disobedience or breach to be attached, and mayalso order such person to be detained in the civil prison for termnot exceeding six months, unless in the meantime the Court directsChis release.”

(4) No attachment under this rule shall remain in force for morethan one year, at the end of which time, if the disobedience orbreach continues, the property attached may be sold, and out ofthe proceeds the Court may award such compensation as it thinksDfit, and shall pay the balance, if any, to the party entitled thereto.”

controversy arose as to whether sub-rules (3) and (4) to Rule 2applied to breach of injunctions that were granted under Rule 1 of OrderXXXIX. This controversy was set at rest by omitting sub-rules (3) and(4) from Order XXXIX, Rule 2 and introducing new Rule 2-A to OrderEXXXIX. The Statement of Objects and Reasons for this provision readas follows:

“Clause 89 – Sub-rule (iii) – New Rule 2-A is being inserted toprovide for the consequences of breach of an injunction issuedunder Rule 1 which is, at present, not covered. The amendment isFintended to seek the application of the provisions for breach, whichare, at present, available under an injunction granted under Rule2, to the said class of cases as well. There is controversy as towhether under the existing provision, court to which suit istransferred can punish disobedience of an injunction issued by thepredecessor court. New Rule 2-A provides that the transfereeGcourt can also exercise that power.” (See Gazette of Ind., 8[th]April 1974, Pt. II, S. 2. Ext. p. 335)

48. reading of Order XXXIX, Rule 2(3) and 2(4) as it originallystood, and Order XXXIX, Rule 2-A as it stands after the 1976 AmendmentAct is to “prescribe” under Section 94 of the Code of Civil Procedure as

to what is the consequence when temporary injunction order and/or anorder appointing receiver of property is flouted. The consequencesare mentioned in Sections 94(c) and (d) itself and fleshed out by OrderXXXIX as aforesaid.

49. Mr. Nankani cited the judgment of Food Corporation ofIndia v. Sukh Deo Prasad, (2009) 5 SCC 665, in which he relied uponthe following observations of this Court:

“38. The power exercised by court under Order 39 Rule 2-A ofthe Code is punitive in nature, akin to the power to punish for civilcontempt under the Contempt of Courts Act, 1971. The personwho complains of disobedience or breach has to clearly make outbeyond any doubt that there was an injunction or order directingthe person against whom the application is made, to do or desistfrom doing some specific thing or act and that there wasdisobedience or breach of such order. While considering anapplication under Order 39 Rule 2-A, the court cannot construethe order in regard to which disobedience/breach is alleged, ascreating an obligation to do something which is not mentioned inthe “order”, on surmises, suspicions and inferences. The powerunder Rule 2-A should be exercised with great caution andresponsibility.”

He also relied upon the judgment of U.C. Surendranath v.Mambally’s Bakery, (2019) 20 SCC 666, and paragraph 7 in particular,which states:

“7. For finding person guilty of wilful disobedience of the orderunder Order 39 Rule 2-A CPC there has to be not mere“disobedience” but it should be “wilful disobedience”. Theallegation of wilful disobedience being in the nature of criminalliability, the same has to be proved to the satisfaction of the courtthat the disobedience was not mere “disobedience” but “wilfuldisobedience”. As pointed out earlier, during the second visit ofthe Commissioner to the appellant’s shop, tea cakes and masalacakes were being sold without any wrappers/labels. The only thingwhich the Commissioner has noted is that “non- removal of thehoarding” displayed in front of the appellant’s shop for which theappellant has offered an explanation which, in our considered view,is acceptable one.”

A50. It is one thing to say that the power exercised by courtunder Order XXXIX, Rule 2-A is punitive in nature and akin to the powerto punish for civil contempt under the Contempt of Courts Act, 1971. Itis quite another thing to say that Order XXXIX, Rule 2-A requires not“mere disobedience” but “wilful disobedience”. We are prima facie ofthe view that the latter judgment in adding the word “wilful” into OrderBXXXIX, Rule 2-A is not quite correct and may require to be reviewedby larger Bench. Suffice it to say that there is vast difference betweenenforcement of orders passed under Order XXXIX, Rules 1 and 2 andorders made in contempt of court. Orders which are in contempt ofcourt are made primarily to punish the offender by imposing fine or aCjail sentence or both. On the other hand, Order XXXIX, Rule 2-A isprimarily intended to enforce orders passed under Order XXXIX, Rules1 and 2, and for that purpose, civil courts are given vast powers whichinclude the power to attach property, apart from passing orders ofimprisonment, which are punitive in nature.[1] Orders passed under Section17(2) of the Arbitration Act, using the power contained in Order XXXIX,DRule 2-A are, therefore, properly referable only to the Arbitration Act.Neither of the aforesaid judgments are an authority for any propositionof law to the contrary.51. It is well settled that the expression “in relation to”, whichoccurs in both Section 9(1) and Section 17(1), is an expression which isEcomprehensive in nature, having both direct as well as an indirectsignificance. Thus, in Bandekar Brothers Pvt. Ltd. v. PrasadVassudev Keni, 2020 SCC OnLine SC 707 this Court held:

“20. The words “in relation to” have been the subject matter ofjudicial discussion in many judgments. Suffice it to say that for theFpresent, two such judgments need to be noticed. In State WakfBoard, Madras v. Abdul Azeez Sahib, AIR 1968 Mad. 79, theexpression “relating to” contained in Section 57(1) of the WakfAct, 1954 fell for consideration before the Madras High Court.The High Court held:

“8. We have no doubt whatever that the learned Judge,G(Kailasam, J.), was correct in his view that even the second

1 When an order for permanent injunction is to be enforced, Order XXI, Rule 32provides for attachment and/or detention in civil prison. Orders that are passed underOrder XXI, Rule 32 are primarily intended to enforce injunction decrees by methodssimilar to those contained in Order XXXIX, Rule 2-A. This also shows the object ofHOrder XXXIX, Rule 2-A is primarily to enforce orders of interim injunction.

suit has to be interpreted as within the scope of the wordsemployed in S. 57(1) namely, “In every suit or proceedingrelating to title to Wakf property”. There is ample judicialauthority for the view that such words as “relating to” or “inrelation to” are words of comprehensiveness which might bothhave direct significance as well as an indirect significance,depending on the context. They are not words of restrictivecontent and ought not to be so construed. The matter has comeup for judicial determination in more than one instance. Thecase in Compagnie Financiec Dae Pacifique v. PeruvianGuano Co, is of great interest, on this particular aspect andthe judgment of Brett, L.J., expounds the interpretation of O.31, R. 12 of the Rules of the Supreme Court, 1875, in thecontext of the phrase “material to any matter in question in theaction”. Brett, L.J., observed that this could both be direct aswell as indirect in consequences and according to the learnedJudge the test was this (at page 63):

“…a document can properly be said to contain informationwhich may enable the party requiring the affidavit either toadvance his own case or to damage the case of hisadversary if it is document which may fairly lead him to atrain of inquiry, which may have either of theseconsequences.”

21. Likewise, in Mansukhlal Dhanraj Jain v. Eknath VithalOgale, (1995) 2 SCC 665, the expression “Suits and proceedingsbetween licensor and licensee…relating to the recovery ofpossession” under Section 41(1) of the Presidency Small CauseCourts Act, 1882 came up for consideration before this Court.The Court held:

“14. …The words ‘relating to’ are of wide import andcan take in their sweep any suit in which the grievance is madethat the defendant is threatening to illegally recover possessionfrom the plaintiff-licensee. Suits for protecting such possessionof immovable property against the alleged illegal attempts onthe part of the defendant to forcibly recover such possessionfrom the plaintiff, can clearly get covered by the wide sweepof the words “relating to recovery of possession” as employedby Section 41(1).”

“16. It is, therefore, obvious that the phrase “relating torecovery of possession” as found in Section 41(1) of the SmallCause Courts Act is comprehensive in nature and takes in itssweep all types of suits and proceedings which are concernedwith the recovery of possession of suit property from thelicensee and, therefore, suits for permanent injunction restrainingthe defendant from effecting forcible recovery of suchpossession from the licensee-plaintiff would squarely be coveredby the wide sweep of the said phrase. Consequently, in thelight of the averments in the plaints under consideration andthe prayers sought for therein, on the clear language of Section41(1), the conclusion is inevitable that these suits could lie withinthe exclusive jurisdiction of Small Cause Court, Bombay andthe City Civil Court would have no jurisdiction to entertain suchsuits.”

52. As matter of fact, the judgment of this Court in ThyssenStahlunion Gmbh v. Steel Authority of India Ltd., (1999) 9 SCC334, set out Section 85 of the Arbitration Act in paragraph 2 as follows:

“2. This Section 85 of the new Act we reproduce at the outset:

E“85. Repeal and savings.—(1) The Arbitration (Protocol andConvention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10of 1940) and the Foreign Awards (Recognition and Enforcement)Act, 1961 (45 of 1961) are hereby repealed.

(2) Notwithstanding such repeal,—

F(a)the provisions of the said enactments shall apply in relationto arbitral proceedings which commenced before this Actcame into force unless otherwise agreed by the parties butthis Act shall apply in relation to arbitral proceedings whichcommenced on or after this Act comes into force;

G(b)all rules made and notifications published, under the saidenactments shall, to the extent to which they are notrepugnant to this Act, be deemed respectively to have beenmade or issued under this Act.”

The expression “in relation to” appears in Section 85(2)(a). TheHquestion which arose before the Court, and which was answered by the

Court, was whether enforcement proceedings would be included withinthe ambit of Section 85(2)(a). Holding that they did, this Court opined:

“32. …… We are, therefore, of the opinion that it would be theprovisions of the old Act that would apply to the enforcement ofthe award in the case of Civil Appeal No. 6036 of 1998. Anyother construction on Section 85(2)(a) would only lead to confusionand hardship. This construction put by us is consistent with thewording of Section 85(2)(a) using the terms “provision” and “inrelation to arbitral proceedings” which would mean that once thearbitral proceedings commenced under the old Act it would bethe old Act which would apply for enforcing the award as well.”This passage was referred to by this Court in BCCI v. KochiCricket (P) Ltd., (2018) 6 SCC 287, in paragraph 69, as follows:

“69. However, Shri Viswanathan strongly relied upon theobservations made in para 32 in Thyssen [Thyssen StahlunionGmbH v. SAIL, (1999) 9 SCC 334] and the judgment in HameedJoharan v. Abdul Salam [Hameed Joharan v. Abdul Salam,(2001) 7 SCC 573]. It is no doubt true that para 32 in Thyssen[Thyssen Stahlunion GmbH v. SAIL, (1999) 9 SCC 334] does, atfirst blush, support Shri Viswanathan’s stand. However, this wasstated in the context of the machinery for enforcement underSection 17 of the 1940 Act which, as we have seen, differs fromSection 36 of the 1996 Act, because of the expression “in relationto arbitral proceedings”, which took in the entire gamut, startingfrom the arbitral proceedings before the Arbitral Tribunal andending up with enforcement of the award. It was also in the contextof the structure of the 1940 Act being completely different fromthe structure of the 1996 Act, which repealed the 1940 Act. ……”

Finally, however, this Court held that Section 36, as amended bythe 2015 Amendment Act, should apply to Section 34 applications filedeven before the commencement of the 2015 Amendment Act.

53. Coupled with this, the expression “any proceedings”, occurringin Section 9(1) and Section 17(1), would also be an expressioncomprehensive enough to take in enforcement proceedings. Theexpression “any” has been construed by some of the judgments of thisCourt. Thus, in Shri Balaganesan Metals v. M.N. ShanmughamChetty, (1987) 2 SCC 707, in context of Section 10(3)(c) of the Tamil

ANadu Buildings (Lease and Rent Control) Act, 1960, this Court held asfollows:

“18. In construing Section 10(3)(c) it is pertinent to note that thewords used are “any tenant” and not “a tenant” who can be calledupon to vacate the portion in his occupation. The word “any” hasBthe following meaning:

“some; one of many; an indefinite number. One indiscriminatelyor whatever kind or quantity.

Word ‘any’ has diversity of meaning and may be employedto indicate ‘all’ or ‘every’ as well as ‘some’ or ‘one’ and itsCmeaning in given statute depends upon the context and thesubject-matter of the statute.

It is often synonymous with ‘either’, ‘every’ or ‘all’. Itsgenerality may be restricted by the context;” (Black’s LawDictionary, 5th Ed.)D

19. Unless the legislature had intended that both classes of tenantscan be asked to vacate by the Rent Controller for providing thelandlord additional accommodation, be it for residential or non-residential purposes, it would not have used the word “any” insteadof using the letter “a” to denote tenant.”

Similarly, in Lucknow Development Authority v. M.K. Gupta,(1994) 1 SCC 243, this Court, while construing the word “service” underthe Consumer Protection Act, 1986, held as follows:

“4. What is the meaning of the word ‘service’? Does it extend todeficiency in the building of house or flat? Can complaint beFfiled under the Act against the statutory authority or builder orcontractor for any deficiency in respect of such property. Theanswer to all this shall depend on understanding of the word‘service’. The term has variety of meanings. It may mean anybenefit or any act resulting in promoting interest or happiness. ItGmay be contractual, professional, public, domestic, legal, statutoryetc. The concept of service thus is very wide. How it should beunderstood and what it means depends on the context in which ithas been used in an enactment. Clause (o) of the definition sectiondefines it as under:

“‘service’ means service of any description which ismade available to potential users and includes the provision offacilities in connection with banking, financing, insurance,transport, processing, supply of electrical or other energy, boardor lodging or both, housing construction, entertainment,amusement or the purveying of news or other information, butdoes not include the rendering of any service free of charge orunder contract of personal service;”

It is in three parts. The main part is followed by inclusive clauseand ends by exclusionary clause. The main clause itself is verywide. It applies to any service made available to potential users.The words ‘any’ and ‘potential’ are significant. Both are of wideamplitude. The word ‘any’ dictionarily means ‘one or some orall’. In Black’s Law Dictionary it is explained thus, “word ‘any’has diversity of meaning and may be employed to indicate ‘all’or ‘every’ as well as ‘some’ or ‘one’ and its meaning in givenstatute depends upon the context and the subject-matter of thestatute”. The use of the word ‘any’ in the context it has beenused in clause (o) indicates that it has been used in wider senseextending from one to all. …”

In Union of India v. A.B. Shah, (1996) 8 SCC 540, this Court,while examining the purport of the expression “at any time” contained inone of the conditions set by the Director General of Coal Mines in exerciseof his powers under the Coal Mines Regulations, 1957 read with theMines Act, 1952, held as follows:

“12. If we look into Conditions 3 and 6 with the object and purposeof the Act in mind, it has to be held that these conditions are notonly relatable to what was required at the commencement ofdepillaring process, but the unstowing for the required length mustexist always. The expression “at any time” finding place inCondition 6 has to mean, in the context in which it has been used,“at any point of time”, the effect of which is that the requiredlength must be maintained all the time. The accomplishment ofobject of the Act, one of which is safety in the mines, requirestaking of such view, especially in the backdrop of repeated minedisasters which have been taking, off and on, heavy toll of lives ofthe miners. It may be pointed out that the word ‘any’ has diversityof meaning and in Black’s Law Dictionary it has been stated

Athat this word may be employed to indicate ‘all’ or ‘every’, and itsmeaning will depend “upon the context and subject-matter of thestatute”. reference to what has been stated in Stroud’s JudicialDictionary Vol. I, is revealing inasmuch as the import of the word‘any’ has been explained from pp. 145 to 153 of the 4th Edn., aperusal of which shows it has different connotations dependingBprimarily on the subject-matter of the statute and the context ofits use. Bench of this Court in Lucknow Development Authorityv. M.K. Gupta [(1994) 1 SCC 243], gave very wide meaning tothis word finding place in Section 2(o) of the Consumer ProtectionAct, 1986 defining ‘service’. (See para 4)”

54. Properly so read, the expressions “in relation to” and “anyproceedings” would include the power to enforce orders that are madeunder Section 9(1), and are not limited to incidental powers to makeinterim orders, as was suggested by Mr. Viswanathan. Thus, if an orderunder Section 9(1) is flouted by any party, proceedings for enforcementDof the same are available to the court making such orders under Section

9(1). These powers are, therefore, traceable directly to Section 9(1) ofthe Act – which then takes us to the Code of Civil Procedure. Thus, anorder made under Order XXXIX Rule 2-A, in enforcement of an ordermade under Section 9, would also be referable to Section 9(1) of theArbitration Act.E

55. Given the fact that the 2015 Amendment Act has provided inSection 17(1) the same powers to an arbitral tribunal as are given to acourt, it would be anomalous to hold that if an interim order was passedby the tribunal and then enforced by the court with reference to OrderXXXIX Rule 2-A of the Code of Civil Procedure, such order would notFbe referable to Section 17. Section 17(2) was necessitated because theearlier law on enforcement of an arbitral tribunal’s interim orders wasfound to be too cumbersome. Thus, in Alka Chandewar v. ShamshulIshrar Khan, (2017) 16 SCC 119, this Court referred to the earlierposition as follows:G“8.

“8. Coming to Shri Rana Mukherjee’s submission that sub- section(2) of Section 17 introduced by the 2015 Amendment Act nowprovides for the necessary remedy against infraction of interimorders by the Tribunal, suffice it to state that the Law Commissionitself, in its 246th Report, found the need to go one step furtherHthan what was provided in Section 27(5) as construed by the Delhi

High Court [Sri Krishan v. Anand, 2009 SCC OnLine Del 2472: (2009) 112 DRJ 657 : (2009) 3 Arb LR 447]. The Commission, inits Report, had this to say:

“Powers of Tribunal to order interim measures

46. Under Section 17, the Arbitral Tribunal has the powerto order interim measures of protection, unless the parties haveexcluded such power by agreement. Section 17 is an importantprovision, which is crucial to the working of the arbitration system,since it ensures that even for the purposes of interim measures,the parties can approach the Arbitral Tribunal rather than awaitorders from court. The efficacy of Section 17 is however,seriously compromised given the lack of any suitable statutorymechanism for the enforcement of such interim orders of theArbitral Tribunal.

47. In Sundaram Finance Ltd. [Sundaram Finance Ltd.v. NEPC India Ltd., (1999) 2 SCC 479], the Supreme Courtobserved that though Section 17 gives the Arbitral Tribunal thepower to pass orders, the same cannot be enforced as orders of acourt and it is for this reason only that Section 9 gives the courtpower to pass interim orders during the arbitration proceedings.Subsequently, in Army Welfare Housing Organisation v.Sumangal Services (P) Ltd., (2004) 9 SCC 619, the Court hadheld that under Section 17 of the Act no power is conferred onthe Arbitral Tribunal to enforce its order nor does it provide forjudicial enforcement thereof.

48. In the face of such categorical judicial opinion, the DelhiHigh Court attempted to find suitable legislative basis forenforcing the orders of the Arbitral Tribunal under Section 17 inSri Krishan v. Anand, 2009 SCC OnLine Del 2472 : (2009) 112DRJ 657 : (2009) 3 Arb LR 447 [followed in Indiabulls FinancialServices Ltd. v. Jubilee Plots & Housing (P) Ltd., 2009 SCCOnLine Del 2458]. The Delhi High Court held that any personfailing to comply with the order of the Arbitral Tribunal underSection 17 would be deemed to be “making any other default” or“guilty of any contempt to the Arbitral Tribunal during the conductof the proceedings” under Section 27(5) of Act. The remedy ofthe aggrieved party would then be to apply to the Arbitral Tribunalfor making representation to the court to mete out appropriate

punishment. Once such representation is received by the courtfrom the Arbitral Tribunal, the court would be competent to dealwith such party in default as if it is in contempt of an order of thecourt i.e., either under the provisions of the Contempt of CourtsAct or under the provisions of Order 39 Rule 2-A of the Code ofCivil Procedure, 1908.

49. The Commission believes that while it is important toprovide teeth to the interim orders of the Arbitral Tribunal as wellas to provide for their enforcement, the judgment of the DelhiHigh Court in Sri Krishan v. Anand, 2009 SCC OnLine Del2472 : (2009) 112 DRJ 657 : (2009) 3 Arb LR 447 is not completesolution. The Commission has, therefore, recommendedamendments to Section 17 of the Act which would give teeth tothe orders of the Arbitral Tribunal and the same would be statutorilyenforceable in the same manner as the orders of court. In thisrespect, the views of the Commission are consistent with (thoughdo not go as far as) the 2006 amendments to Article 17 of theUNCITRAL Model Law.”

(emphasis in original)

9. Pursuant to this 246[th] Report, sub-section (2) to Section 17was added by the 2015 Amendment Act, so that the cumbersomeEprocedure of an Arbitral Tribunal having to apply every time tothe High Court for contempt of its orders would no longer benecessary. Such orders would now be deemed to be orders of thecourt for all purposes and would be enforced under the CivilProcedure Code, 1908 in the same manner as if they were ordersFof the court. Thus, we do not find Shri Rana Mukherjee’ssubmission to be of any substance in view of the fact that Section17(2) was enacted for the purpose of providing “completesolution” to the problem.”

56. It was to remedy this situation that Section 17(2) was introduced.GThere is no doubt that the arbitral tribunal cannot itself enforce its orders,which can only be done by court with reference to the Code of CivilProcedure. But the court, when it acts under Section 17(2), acts in thesame manner as it acts to enforce court order made under Section9(1). If this is so, then what is clear is that the arbitral tribunal’s ordergets enforced under Section 17(2) read with the Code of Civil Procedure.

57. There is no doubt that Section 17(2) creates legal fiction.This fiction is created only for the purpose of enforceability of interimorders made by the arbitral tribunal. To extend it to appeals being filedunder the Code of Civil Procedure would be big leap not envisaged bythe legislature at all in enacting the said fiction. As matter of fact, thisCourt, in Paramjeet Singh Patheja v. ICDS Ltd., (2006) 13 SCC 322,dealt with Section 36 of the Arbitration Act as it stood immediately beforethe 2015 Amendment Act (Section 36 as it then stood is the mirror imageof Section 36(1) post amendment). In answering the question raisedbefore it – as to whether an arbitration award can be said to be decreefor the purpose of Section 9 of the Presidency Towns Insolvency Act,1909, this Court held:

“39. Section 15 of the Arbitration Act, 1899 provides for“enforcing” the award as if it were decree. Thus, final award,without actually being followed by decree (as was later providedby Section 17 of the Arbitration Act of 1940), could be enforcedi.e., executed in the same manner as decree. For this limitedpurpose of enforcement, the provisions of CPC were madeavailable for realising the money awarded. However, the awardremained an award and did not become decree either as definedin CPC and much less so far the purposes of an entirely differentstatute such as the Insolvency Act are concerned.

40. Section 36 of the Arbitration and Conciliation Act of 1996brings back the same situation as it existed from 1899 to 1940.Only under the Arbitration Act, 1940, was the award required tobe made rule of court i.e., required judgment followed by adecree of court.

41. Issuance of notice under the Insolvency Act is fraught withserious consequences: it is intended to bring about drastic changein the status of the person against whom notice is issued viz. todeclare him an insolvent with all the attendant disabilities.Therefore, firstly, such notice was intended to be issued onlyafter regularly constituted court, component of the judicialorgan established for the dispensation of justice, has passed adecree or order for the payment of money. Secondly, noticeunder the Insolvency Act is not mode of enforcing debt;enforcement is done by taking steps for execution available underCPC for realising monies.

42. The words “as if” demonstrate that award and decree ororder are two different things. The legal fiction created is for thelimited purpose of enforcement as decree.The fiction is notintended to make it decree for all purposes under all statutes,whether State or Central.”

(emphasis supplied)

58. Mr. Viswanathan cited the judgment Rajasthan StateIndustrial Development & Investment Corporation v. Diamond& Gem Development Corporation Ltd., (2013) 5 SCC 470. Farfrom supporting his contention that the legal fiction contained in Section17(2) extends to the filing of an appeal under the Code of Civil Procedureas enforcement proceedings are different from interim orders, paragraph26 states as follows:

“VI. “As if”—Meaning of

26. The expression “as if” is used to make one applicable in respectof the other. The words “as if” create legal fiction. By it, whena person is “deemed to be” something, the only meaning possibleis that, while in reality he is not that something, but for the purposesof the Act of legislature he is required to be treated that something,and not otherwise. It is well-settled rule of interpretation that, inconstruing the scope of legal fiction, it would be proper andeven necessary to assume all those facts on the basis of whichalone such fiction can operate. The words “as if” in fact show thedistinction between two things and, such words must be used onlyfor limited purpose. They further show that legal fiction mustbe limited to the purpose for which it was created. [VideRadhakissen Chamria v. Durga Prosad Chamria [(1939-40)67 IA 360 : (1940) 52 LW 647 : AIR 1940 PC 167], CIT v. S. TejaSingh [AIR 1959 SC 352], Ram Kishore Sen v. Union of India[AIR 1966 SC 644], Sher Singh v. Union of India [(1984) 1SCC 107 : AIR 1984 SC 200], State of Maharashtra v. LaljitRajshi Shah [(2000) 2 SCC 699 : 2000 SCC (Cri) 533 : AIR 2000SC 937], Paramjeet Singh Patheja v. ICDS Ltd. [(2006) 13 SCC322 at p. 341, para 28] and CIT v. Willamson Financial Services[(2008) 2 SCC 202].]”

(emphasis supplied)

The celebrated judgment in East End Dwellings Co. Ltd. v.Finsbury Borough Council, 1952 AC 109 : (1951) 2 All ER 587 (HL)then follows in paragraph 27, followed by another judgment of this Courtin paragraph 28, as follows:

“27. In East End Dwellings Co. Ltd. v. Finsbury BoroughCouncil [1952 AC 109 : (1951) 2 All ER 587 (HL)] this Courtapproved the approach which stood adopted and followedpersistently. It set out as under: (AC p. 133)

“… The statute says that you must imagine certainstate of affairs; it does not say that having done so, you mustcause or permit your imagination to boggle when it comes tothe inevitable corollaries of that state of affairs.”

28. In Industrial Supplies (P) Ltd. v. Union of India [(1980) 4SCC 341] this Court observed as follows: (SCC p.351, para 25)

“25. It is now axiomatic that when legal fiction isincorporated in statute, the court has to ascertain for whatpurpose the fiction is created. After ascertaining the purpose,full effect must be given to the statutory fiction and it shouldbe carried to its logical conclusion.The court has to assume allthe facts and consequences which are incidental or inevitablecorollaries to giving effect to the fiction. The legal effect ofthe words ‘as if he were’ in the definition of ‘owner’ in Section3(n) of the Nationalisation Act read with Section 2(1) of theMines Act is that although the petitioners were not the owners,they being the contractors for the working of the mine inquestion, were to be treated as such though, in fact, they werenot so.”

(emphasis supplied)

59. There can be no doubt that the legal fiction created underSection 17(2) for enforcement of interim orders is created only for thelimited purpose of enforcement as decree of the court. To extend thisfiction to encompass appeals from such orders is to go beyond the clearintention of the legislature. Mr. Salve’s argument in stressing the words“under the Code of Civil Procedure” in Section 17(2), thus holds nowater as limited fiction for the purpose of enforcement cannot beelevated to the level of genie which has been released from statutory

Aprovision and which would encompass matters never in the contemplationof the legislature.

60. In recent judgment of this Court in Union of India v. VedantaLtd., (2020) 10 SCC 1, this Court held that petition to enforce foreignaward, made under Section 49 of the Arbitration Act, is governed byArticle 137 of the Limitation Act, 1963 and not by Article 136 of the saidAct. This conclusion was arrived at as follows:

“69. Section 36 of the Arbitration Act, 1996 creates statutoryfiction for the limited purpose of enforcement of “domesticaward” as decree of the court, even though it is otherwise anaward in an arbitral proceeding [Umesh Goel v. H.P. Coop. GroupHousing Society Ltd., (2016) 11 SCC 313 : (2016) 3 SCC (Civ)795]. By this deeming fiction, domestic award is deemed to bea decree of the court [Sundaram Finance Ltd. v. Abdul Samad,(2018) 3 SCC 622 : (2018) 2 SCC (Civ) 593], even though it is assuch not decree passed by civil court. The Arbitral Tribunalcannot be considered to be “court”, and the arbitral proceedingsare not civil proceedings. The deeming fiction is restricted to treatthe award as decree of the court for the purposes of execution,even though it is, as matter of fact, only an award in an arbitralproceeding. In Paramjeet Singh Patheja v. ICDS Ltd., (2006)13 SCC 322, this Court in the context of domestic award, heldthat the fiction is not intended to make an award decree for allpurposes, or under all statutes, whether State or Central. It is alegal fiction which must be limited to the purpose for which it wascreated. Paras 39 and 42 of the judgment in Paramjeet SinghPatheja v. ICDS Ltd., (2006) 13 SCC 322] read as: (SCC pp.345-46)

“39. Section 15 of the Arbitration Act, 1899 providesfor “enforcing” the award as if it were decree. Thus finalaward, without actually being followed by decree (aswas later provided by Section 17 of the Arbitration Act of 1940),could be enforced i.e. executed in the same manner as adecree. For this limited purpose of enforcement, theprovisions of CPC were made available for realising themoney awarded. However, the award remained an awardand did not become decree either as defined in CPC and

much less so far the purposes of an entirely different statutesuch as the Insolvency Act are concerned.

42. The words “as if” demonstrate that award anddecree or order are two different things. The legal fictioncreated is for the limited purpose of enforcement as adecree. The fiction is not intended to make it decree forall purposes under all statutes, whether State or Central.”

(emphasis in original)

“72. Foreign awards are not decrees of an Indian civil court. Bya legal fiction, Section 49 provides that foreign award, after it isgranted recognition and enforcement under Section 48, would bedeemed to be decree of “that court” for the limited purpose ofenforcement. The phrase “that court” refers to the court whichhas adjudicated upon the petition filed under Sections 47 and 49for enforcement of the foreign award. In our view, Article 136 ofthe Limitation Act would not be applicable for the enforcement/execution of foreign award, since it is not decree of civilcourt in India.

73. The enforcement of foreign award as deemed decree ofthe High Court concerned [as per the amended Explanation toSection 47 by Act 3 of 2016 confers exclusive jurisdiction on theHigh Court for execution of foreign awards] would be coveredby the residuary provision i.e. Article 137 of the Limitation Act. Athree-Judge Bench of this Court in Kerala SEB v. T.P.Kunhaliumma [Kerala SEB v. T.P. Kunhaliumma, (1976) 4 SCC634] held that the phrase “any other application” in Article 137cannot be interpreted on the principle of ejusdem generis to beapplications under the Civil Procedure Code. The phrase “anyother application” used in Article 137 would include petitions withinthe word “applications”, filed under any special enactment. Thiswould be evident from the definition of “application” under Section2(b) of the Limitation Act, which includes petition. Article 137stands in isolation from all other Articles in Part I of the ThirdDivision of the Limitation Act, 1963.”

“77. The application under Sections 47 and 49 for enforcementof the foreign award, is substantive petition filed under theArbitration Act, 1996. It is well-settled position that the ArbitrationAct is self-contained code. [Fuerst Day Lawson Ltd. v. JindalBExports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178; KandlaExport Corpn. v. OCI Corpn., (2018) 14 SCC 715 : (2018) 4SCC (Civ) 664; Shivnath Rai Harnarain (India) Co. v. GlencoreGrain Rotterdam, 2009 SCC OnLine Del 3564 : (2009) 164 DLT197; Usha Drager (P) Ltd. v. Dragerwerk AG, 2009 SCC OnLineDel 2975 : (2010) 170 DLT 628; Sumitomo Corpn. v. CDCCFinancial Services (Mauritius) Ltd., (2008) 4 SCC 91; ConrosSteels (P) Ltd. v. Lu Qin (Hong Kong) Co. Ltd., 2014 SCCOnLine Bom 2305 : (2015) 1 Arb LR 463 : (2015) 2 Bom CR 1]The application under Section 47 is not an application filed underany of the provisions of Order 21 CPC, 1908. The application isDfiled before the appropriate High Court for enforcement, whichwould take recourse to the provisions of Order 21 CPC only forthe purposes of execution of the foreign award as deemeddecree. The bar contained in Section 5, which excludes anapplication filed under any of the provisions of Order 21 CPC,would not be applicable to substantive petition filed under theEArbitration Act, 1996. Consequently, party may file an applicationunder Section 5 for condonation of delay, if required in the factsand circumstances of the case.”This judgment is, therefore, authority for the proposition that thefiction created by Section 49 of the Arbitration Act is limited toFenforcement of foreign award, with the important corollary that anapplication to enforce an award is an application under the ArbitrationAct and not an application under Order XXI of the Code of CivilProcedure (in which case, such application would have been governedby Article 136 of the Limitation Act as an execution application underGOrder XXI, and not an application under the residuary Article 137 of theLimitation Act). Mr. Salve’s attempt to distinguish this judgment on theground that Section 49 lays down an entirely different procedure fromthe procedure to be followed for domestic award qua enforceabilitydoes not, in any manner, distinguish the ratio of this judgment which isthat an application to enforce foreign award is not under Order XXI ofH

the Code of Civil Procedure but under the Arbitration Act. Also, thedeeming provision in Section 49, having reference to decree of “thatCourt”, which refers to the court which is satisfied that the foreign awardis enforceable, again, makes no difference to the aforesaid ratio of thejudgment.

61. Mr. Salve then painted lurid picture of third parties beingaffected in enforcement proceedings. No such third party is before us.As to third party, i.e., party who is not party to the arbitrationagreement and to the subject matter covered by the award and who isaffected by an order made in enforcement, we say nothing, leaving thequestion open to be argued on the facts of future case.

62. Mr. Salve then read the provisions of the New ZealandArbitration Act, 1996, the Hong Kong Arbitration Ordinance (Cap. 209),the Singapore Arbitration Act, 2001 as well as the Singapore InternationalArbitration Act, 1994, and the English Arbitration Act, 1996 to argue thatin all the aforesaid legislations, awards passed by an Emergency Arbitratorwere expressly included with varying provisions as to their enforcement.A contrast of these legislations with the provisions of the Indian ArbitrationAct, again, does not take us very far, given the fact that we have, on aproper interpretation of the said Act, held that an award/order by anEmergency Arbitrator would be covered by Section 17 of the ArbitrationAct, when properly read with other provisions of the Act.

63. Mr. Salve and Mr. Viswanathan then argued that Section 36(1),which is pari materia provision with Section 17(2), must be contrastedwith the provisions of Section 36(3). They argued that there is basicdifference between having “due regard to the provisions for grant ofstay of money decree under the provisions of the Code of CivilProcedure” and enforcement of an award “in accordance with theprovisions of the Code of Civil Procedure”. According to them, it isclear that the court granting stay under sub-sections (2) and (3) ofSection 36 does so under the Arbitration Act only having due regard tothe provisions regarding grant of stay of money decree under the Codeof Civil Procedure. By way of contrast, an award is enforced inaccordance with the provisions of the Code of Civil Procedure and notunder the Arbitration Act. It was also argued that Section 17(2) andSection 36(1) are instances of legislation by reference and not legislationby incorporation.

A64. The interpretation of Section 36 is not before us – theinterpretation of Section 17 read with Section 9 is. As far as Section 17is concerned, as has been pointed out by us hereinabove, the schemequa interim orders passed by an arbitral tribunal mirrors the scheme quainterim orders passed by civil courts under Section 9. This vital differencebetween the provisions of Section 17 read with Section 9 and as contrastedBwith Section 36 puts paid to this argument.

65. We will now deal with some of the judgments of this Courtcited by the learned counsel for the Respondents. They strongly reliedupon the judgment of the Delhi High Court in Daelim Industrial Co.Ltd. v. Numaligarh Refinery Ltd., 2009 SCC OnLine Del 511 : (2009)C159 DLT 579 [“Daelim Industrial Co.”] for the proposition thatenforcement applications under Section 36 of the Arbitration Act areindependent of arbitral proceedings which culminate in an award. TheDelhi High Court held that since execution applications would be governedby Sections 38 and 39 of the Code of Civil Procedure, Section 42 of theDArbitration Act cannot be held to apply and as result, the courtsmentioned in Sections 38 and 39 of the Code of Civil Procedure wouldhave jurisdiction to execute arbitral awards.

66. In Sundaram Finance Ltd. v. Abdul Samad, (2018) 3 SCC622, this Court, in paragraph 18, referred to Daelim Industrial Co.E(supra) with approval. The question which arose before this Court wasposed thus:

“The divergence of legal opinion of different High Courts on thequestion as to whether an award under the Arbitration andConciliation Act, 1996 (hereinafter referred to as “the said Act”)Fis required to be first filed in the court having jurisdiction over thearbitration proceedings for execution and then to obtain transferof the decree or whether the award can be straightaway filed andexecuted in the Court where the assets are located is required tobe settled in the present appeal.”

GA Division Bench of this Court, after setting out the relevantprovisions of the Code of Civil Procedure and the Arbitration Act, thenheld:

“14. …… The aforesaid provision would show that an award isto be enforced in accordance with the provisions of the said Codein the same manner as if it were decree. It is, thus, theH

enforcement mechanism, which is akin to the enforcement of adecree but the award itself is not decree of the civil court as nodecree whatsoever is passed by the civil court. It is the ArbitralTribunal, which renders an award and the tribunal does not havethe power of execution of decree. For the purposes of executionof decree the award is to be enforced in the same manner as ifit was decree under the said Code.”

The judgment ultimately turned on Section 32 of the ArbitrationAct, which made it clear that after arbitral proceedings had beenterminated, Section 42 of the Act would not apply. This being so, thequestion posed before the Court was answered thus:

“20. We are, thus, unhesitatingly of the view that the enforcementof an award through its execution can be filed anywhere in thecountry where such decree can be executed and there is norequirement for obtaining transfer of the decree from the court,which would have jurisdiction over the arbitral proceedings.”

This judgment does not, in any manner, take the matter any furtheras it does not advert to Section 17 of the Act at all and is on completelydifferent point as to whether execution of an award can only be in thefirst court which is approached under Section 42 of the Act or can be aproceeding which can be filed and pursued in any court.

67. The learned counsel for the Respondents then relied upon theFull Bench judgment of the Bombay High Court in Gemini BayTranscription Pvt. Ltd. v. Integrated Sales Service Ltd., 2018 SCCOnLine Bom 216 : AIR 2018 Bom 89 (FB) [“Gemini Bay”] whichdealt with the same question and decided that Section 42 of the Actwould not apply to enforcement applications under the Act, which haveto follow the drill of Sections 38 and 39 of the Code of Civil Procedure.The learned counsel for Amazon, however, strongly relied upon judgmentsof the Bombay High Court in Jet Airways (supra), KakadeConstruction (supra), and Global Asia Venture Co. v. Arup ParimalDeb, 2018 SCC OnLine Bom 13061. Since these judgments deal withenforcement proceedings filed under Section 36 of the Arbitration Act,we do not express any opinion on their correctness.

68. Mr. Salve then relied upon Punjab State Civil SuppliesCorporation Ltd. v. Atwal Rice & General Mills, (2017) 8 SCC116. This judgment dealt with objections to the enforcement of an arbitral

Aaward in execution. In the course of dealing with the aforesaid objections,the Court observed:

“18. In other words, the arbitral award has been given the statusof decree of the civil court and, therefore, it is enforced like adecree of the civil court by applying the provisions of Order 21 ofBthe Code and all other provisions, which deal with the executionof the decree of the civil court.”

This judgment again does not take the matter very much further.It does not deal with Section 17 of the Act at all but deals with Section36 which, as has been pointed out by us, contains scheme differentCfrom that contained for enforcement of interim orders under Section 17.

69. We now come to the appeal provision in the Arbitration Act.There can be no doubt that Section 37 is complete code so far asappeals from orders and awards made under the Arbitration Act areconcerned. This has further been strengthened by the addition of theDnon-obstante clause by the Arbitration and Conciliation (Amendment)Act, 2019.

70. This Court, in Kandla Export Corporation v. OCICorporation, (2018) 14 SCC 715 [“Kandla Export”], held in the contextof Section 50 appeal as follows:

E“20. Given the judgment of this Court in Fuerst Day Lawson[Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC333 : (2011) 4 SCC (Civ) 178] , which Parliament is presumed toknow when it enacted the Arbitration Amendment Act, 2015, andgiven the fact that no change was made in Section 50 of theFArbitration Act when the Commercial Courts Act was broughtinto force, it is clear that Section 50 is provision contained in aself-contained code on matters pertaining to arbitration, and whichis exhaustive in nature. It carries the negative import mentionedin para 89 of Fuerst Day Lawson [Fuerst Day Lawson Ltd. v.Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178]Gthat appeals which are not mentioned therein, are not permissible.This being the case, it is clear that Section 13(1) of the CommercialCourts Act, being general provision vis-à-vis arbitration relatingto appeals arising out of commercial disputes, would obviouslynot apply to cases covered by Section 50 of the Arbitration Act.

21. However, the question still arises as to why Section 37 of theArbitration Act was expressly included in the proviso to Section13(1) of the Commercial Courts Act, which is equally specialprovision of appeal contained in self-contained code, which inany case would be outside Section 13(1) of the Commercial CourtsAct. One answer is that this was done exabundanti cautela.Another answer may be that as Section 37 itself was amended bythe Arbitration Amendment Act, 2015, which came into force onthe same day as the Commercial Courts Act, Parliament thought,in its wisdom, that it was necessary to emphasise that the amendedSection 37 would have precedence over the general provisioncontained in Section 13(1) of the Commercial Courts Act.Incidentally, the amendment of 2015 introduced one more categoryinto the category of appealable orders in the Arbitration Act,namely, category where an order is made under Section 8refusing to refer parties to arbitration. Parliament may have foundit necessary to emphasise the fact that an order referring partiesto arbitration under Section 8 is not appealable under Section37(1)(a) and would, therefore, not be appealable under Section13(1) of the Commercial Courts Act. Whatever may be the ultimatereason for including Section 37 of the Arbitration Act in the provisoto Section 13(1), the ratio decidendi of the judgment in FuerstDay Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd.,(2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] would apply, and thisbeing so, appeals filed under Section 50 of the Arbitration Actwould have to follow the drill of Section 50 alone.

22. This, in fact, follows from the language of Section 50 itself. Inall arbitration cases of enforcement of foreign awards, it is Section50 alone that provides an appeal. Having provided for an appeal,the forum of appeal is left “to the Court authorised by law to hearappeals from such orders”. Section 50 properly read would,therefore, mean that if an appeal lies under the said provision,then alone would Section 13(1) of the Commercial Courts Act beattracted as laying down the forum which will hear and decidesuch an appeal.

23. In fact, in Sumitomo Corpn. v. CDC Financial Services(Mauritius) Ltd. [Sumitomo Corpn. v. CDC Financial Services(Mauritius) Ltd., (2008) 4 SCC 91], this Court adverted to Section

A50 of the Arbitration Act and to Sections 10(1)(a) and 10-F of theCompanies Act, 1956, to hold that once an appeal is provided forin Section 50, the Court authorised by law to hear such appealswould then be found in Sections 10(1)(a) and 10- of theCompanies Act. The present case is parallel instance of Section50 of the Arbitration Act providing for an appeal, and SectionB13(1) of the Commercial Courts Act providing the forum for suchappeal. Only, in the present case, as no appeal lies under Section50 of the Arbitration Act, no forum can be provided for.”

“25. What is important to note is that it is Section 50 that providesfor an appeal, and not the letters patent, given the subject-matterof appeal. Also, the appeal has to be adjudicated within theparameters of Section 50 alone. Concomitantly, where Section 50excludes an appeal, no such appeal will lie.”

DThis judgment is, therefore, an authority for the proposition thatthe Arbitration Act is self-contained code on matters pertaining toarbitration, which is exhaustive in nature. The appeal provision in thatcase (Section 50) was held to carry negative import that only suchmatters as are mentioned in the Section are permissible, and matters notmentioned therein cannot be brought in. It was further held that whatEfollows from this is that the substantive provision of appeal is containedin Section 50 of the Act, which alone must be read, Section 13(1) of theCommercial Courts Act, 2015 being general provision, which mustgive way to the specific provision contained in Section 50.71. Likewise, in Deep Industries Ltd. v. ONGC, (2020) 15FSCC 706, this Court opined:

“15. Given the aforesaid statutory provision and given the factthat the 1996 Act repealed three previous enactments in orderthat there be speedy disposal of all matters covered by it, it isclear that the statutory policy of the Act is that not only are time-Glimits set down for disposal of the arbitral proceedings themselvesbut time-limits have also been set down for Section 34 referencesto be decided. Equally, in Union of India v. VarinderaConstructions Ltd. (2020) 2 SCC 111 : (2020) 1 SCC (Civ) 277,dated 17-9-2018, disposing of SLP (C) No. 23155 of 2013, this

Court has imposed the selfsame limitation on first appeals underSection 37 so that there be timely resolution of all matters whichare covered by arbitration awards.

16. Most significant of all is the non obstante clause contained inSection 5 which states that notwithstanding anything contained inany other law, in matters that arise under Part I of the ArbitrationAct, no judicial authority shall intervene except where so providedin this Part. Section 37 grants constricted right of first appealagainst certain judgments and orders and no others. Further, thestatutory mandate also provides for one bite at the cherry, andinterdicts second appeal being filed [see Section 37(2) of theAct].”

72. In BGS SGS SOMA JV v. NHPC, (2020) 4 SCC 234, thistime, the Court dealt with the maintainability of an appeal under Section37 of the Act in case in which an application under Section 34 of theAct was ordered to be transferred from court which had no jurisdictionto court which had jurisdiction. In deciding this question, this Courtreferred copiously to Kandla Export (supra) in paragraph 12. It thenwent on to decide:

“13. Given the fact that there is no independent right of appealunder Section 13(1) of the Commercial Courts Act, 2015, whichmerely provides the forum of filing appeals, it is the parameters ofSection 37 of the Arbitration Act, 1996 alone which have to belooked at in order to determine whether the present appeals weremaintainable. Section 37(1) makes it clear that appeals shall onlylie from the orders set out in sub-clauses (a), (b) and (c) andfrom no others. The pigeonhole that the High Court in theimpugned judgment [NHPC Ltd. v. Jaiparkash Associates Ltd.,2018 SCC OnLine P&H 1304 : (2019) 193 AIC 839] has chosento say that the appeals in the present cases were maintainable issub-clause (c). According to the High Court, even where Section34 application is ordered to be returned to the appropriate court,such order would amount to an order “refusing to set aside anarbitral award under Section 34”.

14. Interestingly, under the proviso to Section 13(1-A) of theCommercial Courts Act, 2015, Order 43 CPC is also mentioned.Order 43 Rule 1(a) reads as follows:

“1. Appeals from orders.— An appeal shall lie fromthe following orders under the provisions of Section 104,namely—

(a) an order under Rule 10 of Order 7 returning plaintto be presented to the proper court except where the procedurespecified in Rule 10-A of Order 7 has been followed;”

This provision is conspicuous by its absence in Section 37 of theArbitration Act, 1996, which alone can be looked at for the purposeof filing appeals against orders setting aside, or refusing to setaside awards under Section 34. Also, what is missed by theCimpugned judgment [NHPC Ltd. v. Jaiparkash Associates Ltd.,2018 SCC OnLine P&H 1304 : (2019) 193 AIC 839] is the words“under Section 34”. Thus, the refusal to set aside an arbitral awardmust be under Section 34 i.e. after the grounds set out in Section34 have been applied to the arbitral award in question, and afterthe Court has turned down such grounds. Admittedly, on the factsDof these cases, there was no adjudication under Section 34 of theArbitration Act, 1996 — all that was done was that the SpecialCommercial Court at Gurugram allowed an application filed underSection 151 read with Order 7 Rule 10 CPC, determining that theSpecial Commercial Court at Gurugram had no jurisdiction toEproceed further with the Section 34 application, and therefore,such application would have to be returned to the competent courtsituate at New Delhi.”

This judgment is determinative of the issue before us as itspecifically ruled out appeals under Order XLIII Rule 1 of the Code ofFCivil Procedure when it comes to orders being made under the ArbitrationAct.

73. At this juncture, it is important to notice that Section 37 did notremain untouched by the 2015 Amendment Act. As matter of fact, anew category of appeals was infused into the said provision by adding aGnew sub-section (1)(a), which reads as follows:

“37. Appealable orders.—(1) Notwithstanding anythingcontained in any other law for the time being in force, an appealshall lie from the following orders (and from no others) to thecourt authorised by law to hear appeals from original decrees ofthe Court passing the order, namely:—

(a) refusing to refer the parties to arbitration under Section 8;”* * *

74. Despite Section 17 being amended by the same AmendmentAct, by making Section 17(1) the mirror image of Section 9(1) as to theinterim measures that can be made, and by adding Section 17(2) as aconsequence thereof, significantly, no change was made in Section 37(2)(b) to bring it in line with Order XLIII, Rule 1(r). The said Sectioncontinued to provide appeals only from an order granting or refusing togrant any interim measure under Section 17. There can be no doubt thatgranting or refusing to grant any interim measure under Section 17 wouldonly refer to the grant or non-grant of interim measures under Section17(1)(i) and 17(1) (ii). In fact, the opening words of Section 17(2), namely,“subject to any orders passed in appeal under Section 37…” alsodemonstrates the legislature’s understanding that orders that are passedin an appeal under Section 37 are relatable only to Section 17(1). Forexample, an appeal against an order refusing an injunction may be allowed,in which case sub- section (2) of Section 17 then kicks in to enforce theorder passed in appeal. Also, the legislature made no amendment to thegranting or refusing to grant any measure under Section 9 to bring it inline with Order XLIII, Rule 1(r), under Section 37(1)(b). What is clearfrom this is that enforcement proceedings are not covered by the appealprovision.75. However, learned counsel appearing on behalf of theRespondents pressed into service recent judgment of this Court inChintels (India) Ltd. v. Bhayana Builders (P) Ltd., (2021) 4 SCC602. The precise question that arose before this Court was as to whenan application seeking condonation of delay in filing an appeal is dismissed,whether this would amount to “refusal to set aside an arbitral award”under Section 34 and thus be appealable under Section 37(1)(c) of theAct. In answering this question, this Court referred to Section 37(1) ofthe Act and stressed the fact that an application for setting aside anaward must be in accordance with sub-sections (2) and (3) of Section34 – See paragraph 9. The Court then set out Section 34(3) and opined:

11. reading of Section 34(1) would make it clear that anapplication made to set aside an award has to be in accordancewith both sub-sections (2) and (3). This would mean that suchapplication would not only have to be within the limitation period

Aprescribed by sub-section (3), but would then have to set outgrounds under sub-sections (2) and/or (2-A) for setting aside suchaward. What follows from this is that the application itself mustbe within time, and if not within period of three months, must beaccompanied with an application for condonation of delay, providedit is within further period of 30 days, this Court having made itBclear that Section 5 of the Limitation Act, 1963 does not apply andthat any delay beyond 120 days cannot be condoned — see Stateof H.P. v. Himachal Techno Engineers [State of H.P. v.Himachal Techno Engineers, (2010) 12 SCC 210 : (2010) 4 SCC(Civ) 605] at para 5.”

CComing to Section 37(1)(c), the Court then held:

“12. We now come to Section 37(1)(c). It is important to notethat the expression “setting aside or refusing to set aside an arbitralaward” does not stand by itself. The expression has to be readwith the expression that follows— “under Section 34”. SectionD34 is not limited to grounds being made out under Section 34(2).Obviously, therefore, literal reading of the provision would showthat refusal to set aside an arbitral award as delay has not beencondoned under sub-section (3) of Section 34 would certainly fallwithin Section 37(1)(c). The aforesaid reasoning is strengthenedEby the fact that under Section 37(2)(a), an appeal lies when aplea referred to in sub- section (2) or (3) of Section 16 is accepted.This would show that the legislature, when it wished to refer topart of section, as opposed to the entire section, did so. Contrastedwith the language of Section 37(1)(c), where the expression “underSection 34” refers to the entire section and not to Section 34(2)Fonly, the fact that an arbitral award can be refused to be set asidefor refusal to condone delay under Section 34(3) gets furtherstrengthened.”

Unlike the language of Section 34, literal reading of Section 17would show that the grant or non-grant of interim measures under SectionG37(2) (b) refers only to Section 17(1) of the Act. Also, in the context ofSection 37(2)(b), the entirety of Section 17 was referred to when Sections17 and 37 were first enacted in 1996. It is only by the 2015 AmendmentAct that Section 17 was bifurcated into two sub-sections. What issignificant in this context is that no corresponding amendment was madeHto Section 37(2)(b) to include within its scope the amended Section 17,

as has been pointed out hereinabove. This judgment is also distinguishableand, therefore, does not carry the Respondents’ argument any further.

76. The second question posed is thus answered declaring that noappeal lies under Section 37 of the Arbitration Act against an order ofenforcement of an Emergency Arbitrator’s order made under Section17(2) of the Act. As result, all interim orders of this Court stand vacated.The impugned judgments of the Division Bench, dated 8[th] February, 2021and 22[nd] March, 2021, are set aside. The appeals are disposed ofaccordingly.

Nidhi Jain

Appeals disposed of.