Nfluence Enterprises India Pvt. Ltd. vs Ld. Addi. District Judge and Others

Instant intra-court appeal has been filed assailing order of learned Single Judge dt. 23.09.2013 dismissing writ petition filed by appellant-petitioner against order of learned trial Judge dt. 05.09.2013 refusing to grant interim protection prayed in the pending application filed u/S. 9 of Arbitration & Conciliation Act, 1996 ("Act, 1996"), however, was of the view that the matter could be heard only after notices being served upon defendants-3 & 4 and as informed to this Court, pleadings are complete and the application filed u/S. 9 by the petitioner appellant is coming up before the learned trial Judge for hearing on 23.11.2013. The appellant-petitioner as alleged herein entered into agreement to sell dt. 25.10.2012 with respondents-2-5 to purchase subject property and certain rights were conferred upon to construct, book flats to be constructed over the subject property, receive earnest money against such bookings and apply for map approvals before various authorities and marketing as well for the said project to be developed over the property in question. It appears that some dispute arose between the parties arising from the agreement executed between the parties, to safeguard their interest in the meanwhile before the proceedings by the Arbitral Tribunal could be initiated, application came to be filed seeking interim relief by the petitioner-appellant u/S. 9 of the Act, 1996 before the learned trial Judge. However, the defendant No. 1 & 2 appeared and after hearing the parties the learned trial Judge was not inclined to grant interim relief, prayed for and observed that the matter may be heard after respondents No. 3 & 4 are served. It has been informed to this Court that after the parties being served written objections have been filed and the matter has riped & coming up before the learned trial Judge for hearing on application u/S. 9 of the Act on 23.11.2013.

The appellant-petitioner being dissatisfied with the ad-interim protection not being granted by the learned trial Judge vide order impugned dt. 05.09.2013 approached to this Court by filing writ petition invoking jurisdiction of this Court u/Art. 227 of the Constitution. The learned Single Judge after hearing counsel for petitioner dismissed the writ petition vide order dt. 23.09.2013 taking note of the fact that since the application was filed pending statutory notice for appointment of arbitrator u/S. 11 of the Act, the application filed u/S. 9 of the Act was premature & not maintainable. However, the learned Single Judge in the facts of the instant case was not inclined to exercise its extraordinary jurisdiction u/Art. 227 of the Constitution particularly in a case where the learned trial Judge has not expressed its view on the basis of the material which came on record not being inclined to grant ad-interim protection pending application vide its order dt. 05.09.2013.

Counsel for appellant submits that the finding recorded by the learned Single Judge in its order impugned 05.09.2013 holding that the application u/S. 9 of the Act pending statutory notice of thirty days was not maintainable, is wholly erroneous & contrary to law and requires interference by this Court.

Counsel for respondent also agrees that as regards maintainability of application u/S. 9 of the Act, it is not dependent upon statutory notice seeking appointment of arbitrator u/S. 11 of the Act but raised a preliminary objection that the order refusing to grant ad-interim protection pending application u/S. 9 of the Act, is appealable u/S. 37(1)(a) of the Act and further submits that if writ petition is filed u/Art. 227 of the Constitution, that will not grant right to appeal and in support of submission placed reliance upon judgment in 2010(2) WLC 500.

Counsel for appellant in counter submits that unless final order is passed granting or refusing to grant interim protection prayed for, is non-appealable u/S. 37 of the Act.

We are not inclined to express any opinion on the legal question regarding maintainability of alternative remedy & leave it open to be considered in the appropriate proceedings. However, we are of the view that the provision u/S 9 of the Act is not dependent upon the statutory notice which was served upon the party for appointment of arbitrator u/S. 11 of the Act and we do find that the learned trial Judge also noticed the submissions made by the respondent in its order dt. 05.09.2013 pending notice regarding appointment of arbitrator, however, didn''t express any opinion regarding maintainability of application u/S. 9 of the Act and was of the view that as regards ad-interim protection it could be considered only after parties are served and that appears to be a reason which the learned Single Judge also observed in its order dt. 23.09.2013.

Counsel for appellant submits that since there was interim protection at one stage granted by this Court, at least that may be allowed to continue till the application pending before the trial Judge is finally heard & decided, which has been opposed by respondent''s counsel & submits that it may be left open to be considered in the facts of the instant case by the learned trial Judge after hearing the parties when the matter is coming up on 23.11.2013 itself.

After taking note of the submissions made, we are of the view that if the learned trial Judge was not satisfied from the material which came on record to grant ad-interim protection pending application u/S. 9 of the Act and was of the view that it can be considered after the parties are served and since the parties have now been served and the matter is coming up before the learned trial court, as informed, on 23.11.2013 we do not find any apparent error in the order of the learned Single Judge which may require interference by this Court. Consequently, we do not find any substance and the appeal deserves to be dismissed and at the same time we would like to observe that since the matter is coming up before the learned trial Judge on 23.11.2013, it is expected from the learned trial court to decide the application expeditiously in accordance with law if possible on 23.11.2013. It is further made clear that the finding/observations made either by learned trial Judge/Single Judge or by this Court, may not influence/inhibit ate the learned trial Judge and the application may be decided independently on the basis of material on record in accordance with law.