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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9106 OF 2019 (Arising out of Special Leave Petition (C) No. 22324/2018)

M/S DEEP INDUSTRIES LIMITED    Appellant(s)

VERSUS

OIL AND NATURAL GAS CORPORATION LIMITED & ANR. Respondent(s)

J U D G M E N T

R.F. Nariman, J.

1) Leave granted.

2) The present appeal raises important questions relating

to the High Court’s exercise of jurisdiction under Article

227 of the Constitution of India when it comes to matters

that are decided under the Arbitration and Conciliation Act,

1996 (“the Act” for short).  

3) In the present case, the respondent-Oil and Natural Gas

Corporation Limited (for short “ONGC”) awarded a contract to

the appellant for supply of one Mobile Air Compressor for a

period  of  five  years.   Shortly  after  entering  into  the

contract, the contract was terminated on 11.10.2017 by the

ONGC on the ground that some part of the equipment was not

new but only second hand.  This position was disputed by the

appellant.  On the very next day, i.e. on 12.10.2017, the

Vendor Code of the appellant was blocked, meaning thereby,

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that the appellant would be unable to bid for any other

further bids floated by the ONGC.  On 18.10.2017, a Show

Cause Notice was issued by the ONGC to the appellant asking

the appellant why it should not be put “on Holiday” i.e.

black listed for a period of two years.   

4) Since  disputes  had  arisen  between  the  parties,  the

appellant invoked the arbitration clause contained in the

contract on 02.11.2017.  This notice is the subject-matter

of dispute before the Arbitrator as well as before this

Court and will be adverted to subsequently.  Pursuant to the

notice, one Justice J.C. Upadhyaya (Retd. High Court Judge)

was appointed as a Sole Arbitrator to decide the disputes

between the parties on 21.12.2017.  On 02.02.2018, a claim

petition  was  filed  by  the  appellant  before  the  learned

Arbitrator in which the termination of the contract/show

cause notice was challenged and damages claimed.  After this

claim petition was filed, on 15.02.2018, the appellant was

blacklisted by an order passed by the ONGC with effect from

11.10.2017 for a period of two years.  Meanwhile, a Section

17  application  was  also  been  moved  before  the  learned

Arbitrator.  Applications were then moved by the appellant

to  amend  both  the  petition  as  well  as  the  Section  17

application to challenge this order dated 15.02.2018, which

amendments  were  granted  by  the  learned  Arbitrator  on

10.03.2018.

5) Meanwhile,  a  Section  16  application  was  before  the

learned Arbitrator basically on the ground that since the

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arbitration notice was confined only to termination of the

agreement, blacklisting would be outside the Arbitrator’s

ken.   This  Section  16  application  was  dismissed  on

09.05.2018 by the learned Arbitrator, in which the learned

Arbitrator held that the notice dated  02.11.2017 was not

merely confined to termination of the contract but was also

in respect of the two year ban that was sought to be imposed

at  that  time.   He  further  held  that  the  ban  order  was

relatable to Clause 18 of the contract and that therefore

the validity of the 15.02.2018 office order could be decided

by  him,  and  consequently  dismissed  the  Section  16

application filed by the respondent.

6) On  the  same  day  i.e.  09.05.2018,  the  Section  17

application  was  separately  disposed  of  by  the  learned

Arbitrator,  in  which  the  learned  Arbitrator  stayed  the

operation of the order dated 15.02.2018 on condition that

the  two  year  ban  will  only  operate  if  the  appellant

ultimately loses in the final arbitration proceedings.

7) An appeal against the Section 17 Order was filed and

disposed of by the City Civil Court, Ahmedabad on 31.05.2018

by  which  the  learned  Arbitrator’s  order  was  upheld.

Consequently, the first appeal filed under Section 37 was

dismissed.  At this stage, and which is the major bone of

contention between the parties before us, a Special Civil

Application being Application No. 9305/2018 was filed under

Article 227 of the Constitution of India before the High

Court Gujarat at Ahmedabad in which the City Civil Court’s

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order  was  challenged.   By  the  impugned  judgment  dated

25.07.2018,  the  High  Court  of  Gujarat  referred  to  a

preliminary contention raised on behalf of the petitioner

that  the  petition  filed  under  Article  227  should  be

dismissed  at  the  threshold  as  it  did  not  raise  any

jurisdictional issue.  The High Court, without answering

this question, then went on to state that the ban order had,

in fact, been passed under a General Contract Manual and not

under  Clause  18  of  the  Agreement  as  a  result  of  which

serious  disputes  arose  as  to  the  jurisdiction  of  the

Arbitrator to deal with the same.  It was also held on a

reading of the notice for arbitration that the notice did

not  raise  the  issue  of  the  ban  for  two  years  and  was

confined  only  to  illegal  termination.   The  High  Court

finally held that no stay could possibly have been granted

under Section 17 of the ban order as an injunction cannot be

granted in cases where the party can be compensated later in

damages.  This being the case, the Writ Petition was allowed

and the Ahmedabad City Civil Court’s order was set aside.

8) Mr. Mukul Rohatgi, learned senior counsel appearing for

the appellant has argued that the High Court referred to the

preliminary objection before it but did not answer the same.

He took us painstakingly through the Act, in particular, to

the provisions of Sections 5 and 37 and argued that given

the non-obstante clause contained in Section 5 together with

the constricted right of first appeal under Section 37, and

the denial of the right of second appeal, that a second bite

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at  the  cherry  would  not  be  permissible  under  any

circumstances, and that despite the fact that Section 5 of

the  Act  could  not  possibly  interdict  a  constitutional

provision, namely, Article 227, yet the statutory scheme

ought to be taken into account in order to deny relief in

almost every case.  For this purpose, he relied upon this

Court’s judgment in SBP & Co. vs. Patel Engineering Ltd. &

Another, (2005) 8 SCC 618.  He also relied upon Fuerst Day

Lawson Limited vs. Jindal Exports Limited, (2011) 8 SCC 333

for the proposition that the Act is a self-contained Code as

a  result  of  which  not  only  would  second  appeals  be

interdicted expressly under Section 37(2) of the Act but

appeals filed under the Letters Patent would also be so

interdicted.  He was at pains to point out that even under

Section 115 C.P.C. as amended, a revision would lie only in

cases where no appeal lies, and under the proviso inserted

with  effect  from  2002,  no  revision  petition  would  be

maintainable against interlocutory orders.  He then took us

through  the  impugned  judgment,  and  stated  that  the

observations made on merits were themselves erroneous and

that “serious disputes as to jurisdiction” would not amount

to lack of jurisdiction.  He also stated that, at best,

there can be stated to be a mere error of law, which could

not, in any case, be interfered with under Article 227 of

the Constitution of India.

9) Mr. K.M. Nataraj, learned Additional Solicitor General

appearing on behalf of the respondent, took us through the

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facts and was at pains to point out that under the relevant

clause of the contract, which is Clause 27.1, the notice

invoking the arbitration must specify all points of dispute

with  the  details  of  the  amount  claimed  at  the  time  of

invocation of arbitration and not thereafter. He stressed

the fact that even a cursory reading of the notice dated

02.11.2017  would  show  that  it  was  confined  to  illegal

termination and did not raise any plea as to the ban that

was  imposed  for  two  years.   He  further  went  on  to

distinguish  the  SBP  &  Co. (supra) stating  that  it  only

applied at a stage where an order of the Arbitral Tribunal

was  sought  to  be  interfered  with  directly  under  Article

226/227, in which context the seven-Judge bench made its

observations.  The present is a case where the Tribunal’s

orders had travelled to the first appellate court, which

appeal was then dismissed, as a result of which the first

appellate court’s order came directly under the supervisory

jurisdiction of the High Court under Article 227.  He then

referred to Punjab Agro Industries Corporation Limited vs.

Kewal Singh Dhillon, (2008) 10 SCC 128 which is a judgment

which distinguished SBP & Co. (supra) in a case in which an

article 227 petition was held to be maintainable against an

order rejecting a Section 11 application for appointment of

an  Arbitrator.   He  then  referred  to  several  judgments

stating  that  the  power  under  Article  227,  though  to  be

sparingly exercised, can certainly be exercised in cases of

patent lack of jurisdiction, and that the present case is

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one  such.   He  then  defended  the  judgment  under  appeal

stating that the judgment under appeal correctly held that

in the circumstances of the present case no stay order could

possibly have been granted by the Arbitrator under Section

17 on the basis of fundamental principles contained in the

Specific  Relief  Act,  in  that  damages  could  always  be

granted, and that therefore, the injunction granted in the

facts of the present case should have been denied.

10) Having heard learned counsel for both parties, it is

first  necessary  to  set  out  certain  provisions  of  the

Arbitration & Conciliation Act, 1996.   

Section 5 states:-

“5.  Extent  of  judicial  intervention.- Notwithstanding  anything  contained  in  any  other law  for  the  time  being  in  force,  in  matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.”

Section 37 which is also material states as follows:-

“37. Appealable orders.- (1) An appeal shall lie from the following orders (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order, namely:- (a) refusing to refer the parties to arbitration under section 8; (b) granting  or  refusing  to  grant  any  measure under section 9;  (c) setting aside  or refusing  to set  aside an arbitral award under section 34.

(2) An appeal shall also lie to a Court from an order granting of the arbitral tribunal.- (a) accepting the plea referred in sub-section (2) or sub-section (3) of section 16; or (b)  granting  or  refusing  to  grant  an  interim measure under section 17.

(3)  No  second  appeal  shall  lie  from  an  order

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passed in appeal under this section, but nothing in  this  section  shall  affect  or  take  away  any right to appeal to the Supreme Court.”

What is also important to note is that under Section 29A of

the Act which was inserted by the Amendment Act, 2016 a time

limit was made within which arbitral awards must be made,

namely, 12 months from the date the arbitral tribunal enters

upon the reference.  Also, it is important to note that even

so far as Section 34 applications are concerned, Section

34(6)  added  by  the  same  amendment  states  that  these

applications are to be disposed of expeditiously, and in any

event, within a period of one year from the date on which

the notice referred to in sub-section (5) is served upon the

other parties.  

11) Given the aforesaid statutory provision and given the

fact that the 1996 Act repealed three previous enactments in

order that there be speedy disposal of all matters covered

by it, it is clear that the statutory policy of the Act is

that not only are time limits set down for disposal of the

arbitral proceedings themselves but time limits have also

been  set  down  for  Section  34  references  to  be  decided.

Equally, in  Union of India vs.  M/s Varindera Const. Ltd.,

dated 17.09.2018, disposing of SLP (C) No. 23155/2013, this

Court has imposed the self-same limitation on first appeals

under Section 37 so that there be a timely resolution of all

matters which are covered by arbitration awards.

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12) Most  significant  of  all  is  the  non-obstante  clause

contained in Section 5 which states that notwithstanding

anything contained in any other law, in matters that arise

under Part I of the Arbitration Act, no judicial authority

shall  intervene  except  where  so  provided  in  this  Part.

Section  37  grants  a  constricted  right  of  first  appeal

against  certain  judgments  and  orders  and  no  others.

Further, the statutory mandate also provides for one bite at

the cherry, and interdicts a second appeal being filed (See

Section 37(2) of the Act)

13) This being the case, there is no doubt whatsoever that

if petitions were to be filed under Articles 226/227 of the

Constitution against orders passed in appeals under Section

37, the entire arbitral process would be derailed and would

not come to fruition for many years.  At the same time, we

cannot forget that Article 227 is a constitutional provision

which  remains  untouched  by  the  non-obstante  clause  of

Section  5  of  the  Act.   In  these  circumstances,  what  is

important to note is that though petitions can be filed

under Article 227 against judgments allowing or dismissing

first appeals under Section 37 of the Act, yet the High

Court would be extremely circumspect in interfering with the

same, taking into account the statutory policy as adumbrated

by us herein above so that interference is restricted to

orders  that  are  passed  which  are  patently  lacking  in

inherent jurisdiction.

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14) In  Nivedita Sharma vs.  Cellular Operators Association

of India and Others, (2011) 14 SCC 337, this Court referred

to several judgments and held:

“11.  We  have  considered  the  respective arguments/submissions.  There  cannot  be  any dispute that the power of the High Courts to issue  directions,  orders  or  writs  including writs  in  the  nature  of  habeas  corpus, certiorari,  mandamus,  quo  warranto  and prohibition  under  Article  226  of  the Constitution  is  a  basic  feature  of  the Constitution  and  cannot  be  curtailed  by parliamentary legislation -  L. Chandra Kumar v. Union of India (1997) 3 SCC 261. However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action  taken  by  the  State  and/or  its agency/instrumentality or any public authority or order  passed  by  a  quasi-judicial body/authority,  and  it  is  an  altogether different  thing  to  say  that  each  and  every petition  filed  under  Article  226  of  the Constitution must be entertained by the High Court as a matter of course ignoring the fact that  the  aggrieved  person  has  an  effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should  not  be  entertained  ignoring  the statutory dispensation.  

12. In  Thansingh Nathmal v. Superintendent of Taxes AIR 1964 SC 1419, this Court adverted to the  rule  of  self-imposed  restraint  that  the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: "7… The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open  to  the aggrieved  petitioner  to  move another  tribunal,  or even  itself  in  another jurisdiction  for  obtaining redress  in  the manner provided by a statute, the High Court normally  will  not  permit  by entertaining  a

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petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."  

13. In Titaghur Paper Mills Co. Ltd. v. State of  Orissa (1983)  2  SCC  433,  this  court observed: "11. It is now well recognised that where a right  or liability  is  created  by  a  statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity  by Willes,  J.  in  Wolverhampton  New Waterworks  Co.  v. Hawkesford (1859)  6  CBNS 336 : 141 ER 486 in the following passage: ’... ‘… There are three classes of cases in which a liability  may  be  established  founded  upon a statute .... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives  a  special  and  particular remedy  for enforcing it. .... The remedy provided by the statute  must  be  followed, and  it  is  not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.’  The rule laid down in this passage was approved by  the  House  of  Lords  in  Neville  v.  London Express Newspapers Ltd. 1919 AC 368 : (1918-19) 10 All ER Rep. 61 (HL) and has been reaffirmed by the Privy Council in  Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd 1935 AC 532 (PC) and  Secy. of State v. Mask and Co. (1939-40) 67 IA 222 : AIR 1940 PC 105.  It  has  also  been held  to  be  equally applicable to enforcement of rights, and has been  followed  by  this  Court throughout.  The High  Court  was  therefore justified  in dismissing the writ petitions in limine."  

14. In  Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536, B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: "77. … So far as the jurisdiction of the High Court under Article 226 - or for that matter, the jurisdiction of this Court under Article 32 -  is concerned,  it  is  obvious  that  the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article

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226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their  jurisdiction consistent  with  the provisions of the enactment."  

15.  In  the  judgments  relied  upon  by  Shri Vaidyanathan,  which,  by  and  large,  reiterate the proposition laid down in  Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad AIR 1969  SC  556,  it  has  been  held  that  an alternative  remedy  is  not  a  bar  to  the entertaining  of  writ  petition  filed  for  the enforcement of any of the fundamental rights or where  there  has  been  a  violation  of  the principles  of  natural  justice  or  where  the order  under  challenge  is  wholly  without jurisdiction or the vires of the statute is under challenge.

16. It can, thus, be said that this Court has recognised  some  exceptions  to  the  rule  of alternative  remedy.  However,  the  proposition laid  down  in  Thansingh  Nathmal  v. Superintendent  of  Taxes  (supra)  and  other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for rederssal of grievance still holds the field.”

In  SBP  &  Co.  (supra),  this  Court  while  considering

interference with an order passed by an arbitral tribunal

under  Article  226/227  of  the  Constitution  laid  down  as

follows:-    

“45.  It  is  seen  that  some  High  Courts  have proceeded on the basis that any order passed by an arbitral  tribunal  during  arbitration,  would  be capable of being challenged under Article 226 or 227 of the Constitution.  We see no warrant for such an approach. Section 37 makes certain orders of  the  arbitral  tribunal  appealable.   Under Section 34, the aggrieved party has an avenue for ventilating  his  grievances  against  the  award including any in-between orders that might have

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been passed by the arbitral tribunal acting under Section 16 of the Act. The party aggrieved by any order of the arbitral tribunal, unless has a right of appeal under   Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The arbitral tribunal is, after all, a creature of a contract  between  the  parties,  the  arbitration agreement, even though, if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the arbitral tribunal. It will still  be  a  forum  chosen  by  the  parties  by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed  by  the  arbitral  tribunal  is  capable  of being corrected by the High Court under Article 226  or  227  of  the  Constitution.  Such  an intervention  by  the  High  Courts  is  not permissible.  

46. The object of minimizing judicial intervention while  the  matter  is  in  the  process  of  being arbitrated upon, will certainly be defeated if the High Court could be approached under Article 227 or under Article 226 of the Constitution against every  order  made  by  the  arbitral  tribunal. Therefore, it is necessary to indicate that once the  arbitration  has  commenced  in  the  arbitral tribunal, parties have to wait until the award is pronounced unless, of course, a right of appeal is available to them under Section 37 of the Act even at an earlier stage.”  

While the learned Additional Solicitor General is correct in

stating that this statement of the law does not directly

apply on the facts of the present case, yet it is important

to notice that the seven-Judge Bench has referred to the

object  of  the  Act  being  that  of  minimizing  judicial

intervention and that this important object should always be

kept in the forefront when a 227 petition is being disposed

of against proceedings that are decided under the Act.

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15) It is true that in Punjab Agro Industries Corporation

Limited (supra), this Court distinguished SBP & Co. (supra)

stating  that  it  will  not  apply  to  a  case  of  a  non-

appointment of an Arbitrator.  This Court held:

“9. We have already noticed that though the order under Section 11(4) is a judicial order, having regard to Section 11(7) relating to finality of such orders and the absence of any provision for appeal, the order of the Civil Judge was open to challenge in a writ petition under Article 227 of the Constitution.  The decision in SBP & Co. does not bar such a writ petition.  The observations of this Court in SBP & Co. that against an order under Section 11 of the Act, only an appeal under Article 136 of the Constitution would lie, is with reference to the orders made by the Chief Justice of a High Court or by the designate Judge of that High Court.  The said observations do not apply to a subordinate court functioning as designate of the Chief Justice.”  

What is important to note is that the observations of this

Court in this judgment were for the reason that no provision

for appeal had been given by statute against the orders

passed  under  Section  11,  which  is  why  the  High  Court’s

supervisory  jurisdiction  should  first  be  invoked  before

coming to this Court under Article 136.  Given the facts of

the present case, this case is equally distinguishable for

the reason that in this case the 227 jurisdiction has been

exercised by the High Court only after a first appeal was

dismissed under Section 37 of the Act.

16) One other feature of this case is of some importance.

As  stated  herein  above,  on  09.05.2018,  a  Section  16

application had been dismissed by the learned Arbitrator in

which substantially the same contention which found favour

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with the High Court was taken up.  The drill of Section 16

of  the  Act  is  that  where  a  Section  16  application  is

dismissed, no appeal is provided and the challenge to the

Section  16  application  being  dismissed  must  await  the

passing of a final award at which stage it may be raised

under Section 34.  What the High Court has done in the

present case is to invert this statutory scheme by going

into  exactly  the  same  matter  as  was  gone  into  by  the

arbitrator in the Section 16 application, and then decided

that  the  two  year  ban  was  no  part  of  the  notice  for

arbitration  issued  on  02.11.2017,  a  finding  which  is

directly contrary to the finding of the learned Arbitrator

dismissing  the  Section  16  application.   For  this  reason

alone, the judgment under appeal needs to be set aside.

Even otherwise, as has been correctly pointed out by Mr.

Rohatgi, the judgment under appeal goes into the merits of

the  case  and  states  that  the  action  of  putting  the

Contractor  and  his  Directors  “on  holiday” is  not  a

consequence of the termination of the agreement.  This is

wholly incorrect as it is only because of the termination

that the show cause notice dated 18.10.2017 proposing to

impose a two year ban was sent.  Even otherwise, entering

into the general thicket of disputes between the parties

does  not  behove  a  court  exercising  jurisdiction  under

Article  227,  where  only  jurisdictional  errors  can  be

corrected.  Therefore to state that the ban order was passed

under a General Contract Manual and not Clause 18 of the

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Agreement, besides being incorrect, would also be incorrect

for the reason that the General Contract Manual does not

mean that such order was issued as an administrative order

invoking the executive power, but was only as an order which

emanated from the contract itself.  Further to state that

“serious disputes” as to jurisdiction seem to have cropped

up  is  not  the  same  thing  as  saying  that  the  Arbitral

Tribunal  lacked  inherent  jurisdiction  in  going  into  and

deciding the Section 17 application.  In point of fact, the

Arbitral  Tribunal  was  well  within  its  jurisdiction  in

referring  to  the  contract  and  the  ban  order  and  then

applying the law and finally issuing the stay order.  Even

if it be accepted that the principle laid down by Section

41(e) of the Specific Relief Act was infracted, in that

damages could have been granted, as a result of which an

injunction ought not to have been issued, is a mere error of

law and not an error of jurisdiction, much less an error of

inherent  jurisdiction  going  to  the  root  of  the  matter.

Therefore, even otherwise, the High Court judgment cannot be

sustained and is set aside.

17) We  reiterate  that  the  policy  of  the  Act  is  speedy

disposal of arbitration cases.  The Arbitration Act is a

special  act  and  a  self  contained  code  dealing  with

arbitration.   This  Court  in  Fuerst  Day  Lawson  Limited

(supra), has specifically held as follows:

“89.  It is, thus, to be seen that Arbitration Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan v. Andha Bank Ltd., (2004)

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11 SCC 672 was held to be a self-contained code. Now, if the Arbitration Act, 1940 was held to be a self-contained  code,  on  matters  pertaining  to arbitration, the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so.  Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lulcid expression of Tulzapurkar,J., that it carries with it “a negative import that only ‘such acts as are mentioned in the Act are permissible to  be  done  and  acts  or  things  not  mentioned therein are not permissible to be done”.  In other words, a letters patent appeal would be excluded by  the  application  of  one  of  the  general principles that where the special Act sets out a self-contained  code  the  applicability  of  the general  law  procedure  would  be  impliedly excluded.”      

What  becomes  clear  is  that  had  the  High  Court  itself

disposed of the first appeal in the present case, no article

227 petition could possibly lie - all that could perhaps

have been done was to file an LPA before a Division Bench of

the  same  High  Court.   This,  as  we  have  seen,  has

specifically been interdicted by Fuerst Day Lawson Limited

(supra).  Merely because, on the facts of this case, the

first appeal was disposed of by a court subordinate to the

High Court, an article 227 petition ought not to have been

entertained.    

18) Mr. Rohatgi is also correct in pointing out that the

legislative policy  qua the general revisional jurisdiction

that is contained by the amendments made to Section 115

C.P.C. should also be kept in mind when High Courts dispose

of petitions filed under under article 227.  The legislative

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policy is that no revision lies if an alternative remedy of

appeal is available.  Further, even when a revision does

lie, it lies only against a final disposal of the entire

matter  and  not  against  interlocutory  orders.   These

amendments were considered in  Tek Singh vs.  Shashi Verma

and Another, 2019 SCC OnLine SC 168 in which this Court

adverted to these amendments and then stated:

7. A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC  are  not  maintainable  against  interlocutory orders.  

8. Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to  correct jurisdictional errors only. This is well settled. In D.L.F. Housing & Construction Company Private Ltd., New Delhi v. Sarup Singh and Others (1970) 2 SCR 368 this Court held:  

“The position thus seems to be firmly established that  while  exercising  the  jurisdiction  under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to  the  jurisdiction  of  the  Court  to  try  the dispute  itself.  Clauses  (a)  and  (b)  of  this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned  Additional  District  Judge  had  either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in  him,  in  recording  the  order  that  the proceedings  under  reference  be  stayed  till  the decision of the appeal by the High Court in the proceedings  for  specific  performance  of  the agreement in question. Clause (c) also does not seem  to  apply  to  the  case  in  hand.  The  words "illegally"  and  "with  material  irregularity"  as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause

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may, in our view, relate either to breach of some provision  of  law  or  to  material  defects  of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed  formalities  have  been  complied  with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter  initially,  to  come  to  a  different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal,  could  hardly  justify  interference  on revision under Section 115 of the Code when there was  no  illegality  or  material  irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the   revision virtually as if it was an appeal.” at Pg.373

19) For all these reasons, the appeal stands allowed with

no  order  as  to  costs.   Accordingly,  the  arbitration

proceedings  may  now  be  disposed  of  as  expeditiously  as

possible, in accordance with the mandate contained in the

Act.

   .......................... J.

       (ROHINTON FALI NARIMAN)

                      .......................... J.   (ANIRUDDHA BOSE)

                      .......................... J.   (V. RAMASUBRAMANIAN)

New Delhi; November 28, 2019.