A.F.R.

Neutral Citation No. - 2024:AHC-LKO:35647-DB

Court No. - 2

Case :- SPECIAL APPEAL DEFECTIVE No. - 266 of 2024

Appellant :- M/S Moksh Innovations Inc. Lko. Thru. Manager

Jitendra Singh Bisht
Respondent :- E City Property Management And Services (P) Ltd.
New Delhi Thru. Property Manager And Others
Counsel for Appellant :- Desh Mitra Anand
Counsel for Respondent :- Pushpila Bisht

Hon'ble Rajan Roy,J.

Hon'ble Om Prakash Shukla,J.

1. Heard Mr. Desh Mitra Anand, learned counsel for the

appellant and Ms. Pushpila Bisht, learned counsel for the
respondents.

2. There is a delay of 135 days as on 01.05.2024 in filing

the special appeal. Counsel for the respondents has no
objection in application for condonation of delay being
allowed, therefore, we allow the application for
condonation of delay and condone the delay in filing the
special appeal.

3. This special appeal has been filed under Chapter VIII

Rule 5 of the Allahabad High Court Rules, 1952
(hereinafter referred as 'High Court Rues') challenging the
judgment of learned Single Judge of this Court dated
18.11.2023 passed in Arbitration and Conciliation
Application under Section 11 (4) No. 3 of 2022 (M/s
Moksh Innovations Inc. Thru. Manager vs. E-City
Property Management and Services (P) Ltd. and
others) as also the order dated 12.01.2024 passed by the
said Single Judge Bench in Civil Misc. Review
Application No. 178 of 2023 (M/s Moksh Innovations
Inc. Thru Manager Jitendra Singh Bisht vs. E-City
Property Management and Services Pvt. Ltd.).

4. At the very outset, Ms. Pushpila Bisht, learned counsel

for the respondents invited our attention to ground (h).
Without saying much, we have perused the same. We
have also seen the averment made in support of the
application for interim relief and an order dated
16.02.2009 passed by a Division Bench of this Court in
First Appeal From Order No. 718 of 2008. Apart from the
fact that the wording of ground (h) is highly objectionable,
we have summoned the scanned copy of records of First
Appeal From Order No. 718 of 2008 and we find that the
learned Single Judge who has passed the impugned
judgments/orders had not signed the vakalatnama on
behalf of the appellant herein who was the appellant in
First Appeal From Order No. 718 of 2008. The
vakalatnama is signed by Mr. B.K. Saxena, Advocate. The
learned Judge at the relevant time was junior to Mr.
Saxena. Mr. Saxena had filed his vakalatnama and
thereafter moved an application for recall of some order in
the said First Appeal From Order No. 718 of 2008 and on
16.02.2009 the learned Single Judge who at that time
was an Advocate holding the brief of his senior informed a
fact to the Division Bench, nothing more to seek recall of
an order. There is no other pleading nor any material on
record of this appeal that he was the counsel for appellant
in his independent capacity in that appeal or in any other
proceedings on behalf of the appellant.

5. Most important, when we confronted the learned

counsel for the appellant as to whether at any point of
time during pending of Application under Section 11 (4) of
the Arbitration and Conciliation Act, 1996 (hereinafter
referred as 'Act 1996') the said order dated 16.02.2009
and the aforesaid fact was brought to the notice of the
learned Single Judge, he submitted that this was not
brought to the notice because the appellant himself was
not aware of this fact during pendency of the said
proceedings.

6. We find that against impugned judgment dated

18.11.2023 a review application was filed, but, we do not
find any such ground in the said review application nor
any such averment in any affidavit or application filed
along with it informing the learned Single Judge about the
said fact. The learned counsel for the appellant says that
this fact came to the knowledge of the appellant only after
decision in the review application. If it is so, then, how the
learned Single Judge could have known that 15 years ago
he had been holding the brief of his senior and had made
some mention before the Division Bench in an application
for recall in First Appeal From Order No. 718 of 2008 filed
by the appellant herein. In these circumstances it is highly
unjust to make such an averment as has been made in
ground (h) and the affidavit in support of the interim relief.

7. One could understand if this fact was brought to the

notice of the learned Single Judge and then an order had
been passed on merits. Even otherwise, the learned
Single Judge did not appear in his independent capacity
but was associated with the counsel who had filed his
vakalatnama and only as a junior lawyer he appeared and
made a statement before the Division Bench.

8. The only reason we have narrated these facts is that in

our view it is unfair to expect the learned Single Judge to
remember that he had by chance appeared in some
matter that too on behalf of his Senior in an application for
recall and had informed the Division Bench in the
aforesaid First Appeal From Order No. 718 of 2008 15
years ago in an appeal filed by the appellant that some
proceedings had already been initiated elsewhere and
then to recuse himself from hearing of the Application
under Section 11 (4) of the Act 1996, 15 years thereafter,
without being informed about the said fact. It was the duty,
if at all the appellant felt that the matter should not have
been heard by the said learned Single Judge, to inform
him about the said fact, but, it seems that having
contested the matter unsuccessfully before the learned
Single Judge this idea came to the appellant only
thereafter. Even in the review application this fact was not
mentioned. Although a second review is not maintainable
but, in these circumstances, if the appellant was serious
about this objection, he could have filed an application for
recall of the impugned judgment informing the learned
Judge about the aforesaid fact but, even this has not
been done, instead, uncalled for language has been used
in ground (h) of this appeal. The only reason we have
mentioned all this is because of manner in which the
ground raised in this appeal has been phrased.

9. We say no more on this issue, as, a preliminary

objection has been raised by Ms. Pushpila Bisht, learned
counsel for the respondents that the Special Appeal is not
maintainable on account of the bar in view of Section
11(7) of the Act 1996 which reads as under:

"(7) A decision on a matter entrusted by sub-section (4) or

sub-section (5) or sub-section (6) to the Supreme Court
or, as the case may be, the High Court or the person or
institution designated by such Court is final and no appeal
including Letters Patent Appeal shall lie against such
decision."
10. In response, learned counsel for the appellant says
that the appeal is maintainable under Chapter VIII Rule 5
of the High Court Rules, as, it does not fall in any of the
exclusionary categories mentioned therein. As regards
Section 11 (7) of the Act 1996, he says that the said
provision has been omitted and, therefore, the bar in
maintaining a special appeal which is analogous to
Letters Patent Appeal is no longer in existence.

11. However, we find that as per the Arbitration and

Conciliation (Amendment) Act, 2019 (hereinafter referred
as 'Amending Act 2019') (Act No. 33 of 2019) the same
was enacted to amend the Act 1996. As per Section 1 (2)
save as otherwise provided in this Act, it shall come into
force on such date as the Central Government may, by
notification in the Official Gazette, appoint and different
dates may be appointed for different provisions of this Act
and any reference in any such provision to the
commencement of this Act shall be construed as a
reference to the coming into force of that provision. Now,
Section 11 of the Act 1996 was amended omitting sub-
Section (7) of Section 11 thereof vide Section 3 of the
Amending Act 2019. A notification dated 30.08.2019 was
issued by the Ministry of Law and Justice in exercise of
the powers conferred by sub-Section (2) of Section 1 of
the Amending Act 2019 by which 30.08.2019 was
appointed as the date on which the provisions contained
in Section 1; Sections 4 to 9 (both inclusive); Sections 11
to 13 (both inclusive); Section 15 of the Amending Act
2019 shall come into force. The words used in the
notification: - "the provisions of the following Sections of
the said Act" refer to the Amending Act 2019 and not the
original Act 1996. Now, when we peruse the Amending
 Act 2019, we find that no date has been appointed for
coming into force of Section 3 of the Amending Act 2019
by which Section 11 (7) of the original Act 1996 is sought
to be omitted, meaning thereby, sub-Section (7) of
Section 11 of the Act 1996 barring a Letters Patent
Appeal/Special Appeal against an order passed under
Section 11 (4) (5) (6) of the Act 1996, still exists,
therefore, the bar continues so long as Section 3 of the
Amending Act 2019 is not notified.

12. This being the position, there is a statutory bar in the

Act 1996 which is a special enactment and Chapter VIII
Rule of the High Court Rules cannot be read, understood
and applied contrary to the said provision, therefore, this
special appeal is not maintainable.

13. We dismiss the special appeal as not maintainable,

leaving it open for the appellant to pursue other remedies
as may be permissible in law.

14. The records of First Appeal From Order No. 718 of

2008 which were summoned by us shall be returned to
the concerned section.

[Om Prakash Shukla, J.] [Rajan Roy, J.]

Order Date :- 8.5.2024
Santosh/-

Digitally signed by :-
SANTOSH KUMAR
High Court of Judicature at Allahabad,
Lucknow Bench