Appeal filed under Section 37 against Commercial Court order dismissing Section 9 interim plea post-arbitrator appointment. Court upheld order, ruling jurisdiction restricts post-constitution unless Section 17 irreparation shown.
Appeal dismissed; no costs awarded to any party.
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AFR Reserved on 06.08.2021 Delivered on 19.08.2021
Court No. - 2
Case :- FIRST APPEAL FROM ORDER No. - 748 of 2021
Appellant :- Shri Ramesh Kumar Agarwal Respondent :- Shri Naresh Kumar Agarwal and another Counsel for Appellant :- Aarushi Khare Counsel for Respondent :- Rishabh Agarwal
Hon'ble Suneet Kumar, J.
- “CPC”
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the arbitration clause of the deed. Respondents did not agree to the Arbitrator proposed by the appellant and also failed to propose an Arbitrator. The appellant approached this Court for appointment of an Arbitrator under Section 11 of the Act, 1996, by filing Arbitration Application No. 57 of 2020. During pendency of the application under Section 11, appellant filed a petition under Section 9 before Commercial Court, Jhansi, for interim measure to protect the interest of the appellant. The respondents filed written statement. The Commercial Court adjourned the matter for 05.03.2021. In the meantime, this Court appointed an independent Arbitrator vide order dated 23.02.2021. On the matter being taken up, Commercial Court passed the impugned order holding therein that on appointment of an Arbitrator, Commercial Court would lack jurisdiction to proceed under Section 9 of Act, 1996, accordingly, ordered return of the record under Order 7 Rule 10 CPC relegating the parties to take remedy before the Arbitrator under Section 17.
3 . 2018 AIR CC 3244
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for interim measures under Section 9 of Act, 1996; the appellant has not pleaded before the Court below or before this Court that the circumstances existed which may not render the remedy provided under Section 17 efficacious. It is urged that appeal being devoid of merit, is liable to be dismissed at the admission stage itself.
36, apply to a court—
(ii) for an interim measure of protection in respect of any of the following matters, namely:—
4 . AIR 2016 Cal. 213
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arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the Court to be just and convenient,
and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.
(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.
( 3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious. ” (emphasis added)
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(c) the detention, preservation or inspection of any property or thing which is the subject matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
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(e) such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient, and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and in relation to, any proceedings before it.
(2) Subject to any orders passed in an appeal under section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure,1908 (5 of 1908), in the same manner as if it were an order of the Court.”
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Sub-Section (3). The party pressing for interim measure upon constitution of the arbitral tribunal must impress upon the Court that ‘circumstances’ exist which may not render the remedy under Section 17 efficacious. The circumstances could be several which a party has to plead, and, prima facie, prove. But where such ‘circumstances’ do not exist then in that event the Court is precluded to entertain the application instituted for interim measure of protection.
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Order Date :- 19.08.2021 P.Sri.
( Suneet Kumar, J.)
3 issues framed by the court
Whether the Commercial Court was justified in declining to entertain an application for interim relief under Section 9 of the Arbitration and Conciliation Act, 1996 after the constitution of the arbit
Whether the appellant failed to demonstrate circumstances rendering the remedy under Section 17 efficacious.
Whether the appeal was maintainable given the legal position on interim measures post-constitution of the tribunal.
Colour shows how this judgement treated each authority
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Tufan Chatterjee Versus Rangan DharRelied on¶20
Tufan Chatterjee Vs. Rangan Dhar
Martin & Harris Ltd. Versus 6th Additional District JudgeExplained¶17
Martin & Harris Ltd. Vs. 6th Additional District Judge
4 provisions across 2 enactments
Ramesh Kumar Agarwal
Naresh Kumar Agarwal
Suneet Kumar
As recorded by the court registry
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