S.B. Verma Construction Co. vs Teknow Consultants and Engineers Pvt. Ltd. and Another

Mukul Mudgal, J.

C.M. Nos. 8728-29/2009 (for exemption) in FAO(OS) No.258 /2009

Exemption allowed subject to all just exceptions.

The applications stand disposed of.

F.A.O.(OS) No. 258 /2009 and C.M. No. 8727/ 2009 (for stay)

The grievance by the appellant in the present appeal relates to the non-taking of the measurements of the work done by the appellant up to date which were declined by the learned Single Judge on the ground that as per the arbitration clause, the Managing Director of the company had not been approached before seeking the relief u/s 9 of the Arbitration and Conciliation Act, 1996 (for short ''the Act). The impugned order is dated 9th February, 2009 and the Learned Counsel for the appellant has drawn our attention to a letter dated 12th February, 2009 by which such an approach postulated by the learned Single Judge''s order was indeed made to the Managing Director. While such an approach was made on 10th February, 2009, a letter of 12th February, 2009 records that rather than acting on the said request, the Managing Director straightaway proceeded by directing the appellant to file the claims, therefore, declining the request of protection sought by him.

In our view, since the appellant has already approached the Managing Director as averred, the proper course for the appellant would be to invoke the jurisdiction of Section 9 of the Act as per the law laid down by this Court in F.A.O.(OS) No. 164/2009, Prima Developers v. Lords Co-operative Group Housing Society Ltd., decided on 8th May, 2009.

Accordingly, while reserving the liberty to the appellant to approach the learned Single Judge u/s 9 of the Act, we dismiss the appeal as having become infructuous. The pending application also stands disposed of.