Nikitha Build-Tech [P] Ltd. vs Natural Textiles Pvt. Ltd.

D.V. Shylendra Kumar, J.—The appeal u/s 37[1][a] of the Arbitration and Conciliation Act, 1996 read with Order 43 Rule 1[r] of CPC, by the petitioner in Arbitration Application No. 13 of 2010 before the II Additional District, Judge, Bangalore Rural District, Bangalore.

The appellant had filed a petition u/s 9 of the Arbitration and Conciliation Act, 1996 [for short ''the Act''] seeking the following prayer:

To restrain the respondent from carrying out work through any third party contractor in respect of the project viz., design and construction of a proposed factory production unit at plot No. 172, 173 and 174, Bommasandra-Jigani Link Road, Industrial Area, Bommasandra, Anekal Taluk, Bangalore and grant such other and further reliefs as are just.

In a petition of this nature, the appellant had also filed an application under Order 39 Rules 1 and 2 of the CPC seeking for the following prayer:

For the reasons stated in the accompanying affidavit, it is prayed that this Hon''ble Court may be pleased to issue a temporary injunction restraining the respondent from carrying out work through any third party contractor in respect of the project viz., design and construction of a proposed factory production unit at plot No. 172, 173 and 174, Bommasandra-Jigani Link Road, Industrial Area, Bommasandra. Anekal Taluk, Bangalore and grant such other and further reliefs as are just.

The learned Judge before whom the petition u/s 9 of the Act is pending, on an examination of the application, was of the view that even to order the application, some more material was required to be placed by the parties before the court and was of the further opinion that at this stage, the prayer cannot be granted and accordingly rejected the interim application.

It is against this order rejecting the interim application in a pending petition u/s 9 of the Act, the present appeal.

Appearing on behalf of the appellant, submission of Sri Aditya Sondhi, Learned Counsel is that the learned Judge of the trial court has not appreciated the significance of the application; that rejection of the application virtually renders the main petition u/s 9 of the Act infructuous and passing such an order to defeat the object of the main petition cannot be achieved by passing an order on an interim application, that too adverse to the interest of the appellant.

In the alternative, it is submitted that the appellant bona fide apprehends that the learned Judge of the trial court will proceed to determine the main petition also, on the same lines as the interim application had been decided and that can only result in dismissal of the main petition u/s 9 of the Act, which virtually leaves the appellant without the remedy which is envisaged u/s 9 of the Act and therefore also the impugned order is required to be set aside.

Sri Lomesh Kiran, Learned Counsel who has entered caveat on behalf of the respondent, submits that the averments contained in the affidavit in support of the application are not admitted: that it does not reflect the terms and conditions between the parties. However, hastens to add that the appeal only deserves to be dismissed, as without merit.

The petition u/s 9 of the Act itself is by way of an interim measure. We are of the opinion that there cannot be further interim application in a petition of this nature. It is for the parties to get their application u/s 9 of the Act ordered at the earliest. We are of the opinion that neither the interim application was tenable in a petition u/s 9 of the Act nor the present appeal.

This appeal is rejected.