Dismissed

M/S.Sai Concrete Pavers Pvt.Ltd. v. National Alluminum Company Ltd.

Orissa HC4 Mar 2016FAO/47/2016

Case brief

AI extract

What is this about?

This appeal challenged the rejection of an application under Order 39 Rule-3 CPC by the District Judge. The High Court held no appeal lies against such rejection and dismissed the appeal, simultaneously vacating an interim order from the lower court.

What did the court decide?

The appeal was dismissed and the interim order dated 28.01.2016 passed in Misc. Case No.71 of 2016 was vacated.

M/S.Sai Concrete Pavers Pvt.Ltd. Vs National Alluminum Company Ltd. — Arbitration | Orissa HC (2016)

¶1

HIGH COURT OF ORISSA: CUTTACK

¶2

FAO NO. 47 OF 2016

¶3

From the order dated 18.01.2016 passed by the learned District Judge, Koraput-Jeypore in I.A. No. 1 of 2016 arising out of C.M.A. No.1 of 2016.

¶4

¶5

M/s Sai Concrète Pavers Pvt. Ltd., Visakhapatnam …… Appellant -Versus-

¶6

National Alluminum Company Ltd., Koraput …… Respondent

¶7

For Appellants : M/s. S.S.Rao, B.K.Mohanty & R.Biswal

¶8

For Respondent : Mr. Manoj Mishra, Sr. Advocate

¶9

M/s. Tanmay Mishra, P.K.Das & S.Mishra,

¶10

¶11

Heard and disposed of on 04.03.2016 ------------------------------

¶12

P R E S E N T:

¶13

THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA ----------------------------------------------------------------------------------------------

¶14

O R D E R

¶15

K.R. Mohapatra, J. This appeal has been filed assailing order dated

¶16

18.01.2016 passed by the learned District Judge, Koraput-Jeypore in

¶17

I.A. No. 1 of 2016 arising out of C.M.A. No.1 of 2016.

¶18

The appellant filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, ‘the Act’) (CMA No.1 of 2016) praying for an interim protection by restraining the respondent from liquidating /enforcing the bank guarantee offered

¶19

¶20

by the appellant through IDBI Bank, Vishakhapatnam, issued through Karur Vysya Bank Ltd., Seetammadhara, Vishakhapatnam and for other reliefs. Along with the petition under Section 9 of the Act, the appellant also filed a petition under Order 39 Rules 1 and 2, CPC praying inter alia to restrain the respondent from invoking the bank guarantee till disposal of the CMA. Along with the petitioner under Order 39 Rules 1 and 2, CPC, i.e., I.A. No.1 of 2016, the appellant also filed a petitioner under Order 39 Rule-3 to pass an adinterim order of injunction by dispensing with issuance of notice to the respondent showing urgency in the matter. That petition being rejected, the appellant has come up with this appeal.

¶21

By order dated 28.01.2016, this Court, while issuing notice on admission in appeal, directed that there shall be no invocation of bank guarantee of the appellant/petitioner till the next date (in Misc. Case No.71 of 2016). The said order is continuing till date. It would be apt to mention here that while issuing notice in the matter, this Court has kept open the question of maintainability of

¶22

the appeal to be raised at the time of hearing. Thus, the respondent/opposite party on its appearance raised the question of maintainability of the appeal at the outset, which is taken up for consideration.

¶23

Heard Mr.S.S.Rao, learned counsel for the appellant and Mr.Manoj Mishra, learned Senior Advocate assisted by Mr.Tanmay

¶24

Mishra, learned counsel for the respondent-Company.

¶25

¶26

Mr.Rao, learned counsel for the appellant placing reliance upon paragraph-11 of the decision of the Hon’ble Supreme Court in the case of A.Venkatasubbiah Naidu Vs. S.Chellappan and others , reported in AIR 2000 SC 3032 contended that order passed either refusing or granting an application under Rule-3 of Order 39, CPC is appealable one. Mr.Rao further submits that there are two provisions under the Act, namely, Section-9 and Section 17 of the Act, which enable either the Court or the Arbitrator to pass interim orders or make an interim arrangement. Section 9 of the Act empowers the Court to pass interim orders or make interim arrangement in contemplation of an arbitral proceeding. Though the provisions of Section 9 of the Act deals with entertaining an application for interim measure it does not make any provision as to how the interest of the aggrieved party is to be protected before the petition under Section 9 of the Act is taken up on merit. Thus, the application filed for injunction can only be entertained under the provisions of Order 39 Rules 1 and 2, CPC and not otherwise. Thus, the appeal against the said order is maintainable before this Court.

¶27

Right of appeal is not inherent one. It is a creature of the statute, and should be considered on interpretation of the relevant provision. Thus, it is to be examined as to whether the appellant has a statutory right to prefer an appeal against rejection of an application under Order 39 Rule-3, CPC. On a plain reading of Section 104 as well as Order 43 Rule-1, CPC, which provides an appeal against

¶28

¶29

order does not include an order of rejection of an application under Order 39 Rule-3, CPC.

¶30

Law is no more res integra on this issue. This Court in a decision in the case of Sri Rabindra Kumar Mohanty Vs. Smt.

¶31

Sujata Mohapatra (FAO No.86 of 2012 disposed of on 10.07.2015) relying upon A.Venkatasubbiah Naidu (supra) as well as decisions reported in 1989 (II) OLR 455 and AIR 1993 (Orissa) 78 held as

¶32

under:-

¶33

“6. In view of the discussion made above and the law laid down (supra), I have no hesitation to hold that an appeal is maintainable as against an ex parte ad interim order of injunction as provided under Order XLIII Rule (1) (r) C.P.C., but not against the order refusing to exercise power under Order 39 Rule 3 C.P.C…...”

¶34

Thus, it can be unhesitatingly held that no appeal lies against an order rejecting an application under Order 39 Rule-3, CPC.

¶35

Mr.Mishra, learned Senior Advocate for the respondent submits that the impugned order is essentially an order under Section 9 of the Act and is not an order under Order 39 Rules-1, 2 or 3, CPC. He drives attention of this Court to the relevant provisions of Section 9 of the Act, which would be profitable to be reproduced here

¶36

under:-

¶37

“ 9. Interim measures, etc., by Court .— (1) A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a

Court:-

(i) xx xx xx

(ii) for an interim measure of protection in respect of any of the following matters, namely:-

¶42

(a) xx xx xx (b) xx xx xx (c) xx xx xx

¶43

(d) interim injunction or the appointment of a receiver;

¶44

(e) such other interim measure of protection as may appear to the Court to be just and convenient,

¶45

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.

¶46

(2) xx xx xx (3) xx xx xx”

¶47

Mr.Mishra, thus submits that in view of the scope of Section 9 of the Act it can never be said that I.A. No.1 of 2016 was filed under Order 39 Rules- 1 and 2, CPC. Though it is nomenclatured as such, it can only be treated as a petition under Section 9(1)(ii)(d) and (e) of the Act. Thus, an appeal against the impugned order would only lie under Section 37 of the Act and not otherwise. He also relied upon a decision of this Court in the case of Presidency Exports and Industries Ltd. Vs. E. Shipping Private Ltd. and others , reported in 2010 (I) OLR 867. In the aforesaid decision, this Court taking into consideration the provisions under Section-9 and Section 37 of the Act, and also relying upon different case laws, came to a categorical conclusion at paragraph-8, relevant portion of which is quoted below:-

¶48

“….. In the present case, the prayer of the petitioner in the Court below was to injunct the opposite parties from removing /re-shipping the cargo in question

¶49

¶50

stored at Paradip Port. In the impugned order an adinterim order of status quo in respect of the said cargo was passed. The provisions quoted above do not envisage the appeal can lie only against the final order passed under Section 9 of the Act. Accordingly, it is held that the appeal is maintainable.”

¶51

Section 9(1)(ii)(d) of the Act empowers the Court, namely,

¶52

the District Judge to make any interim arrangement including that of injunction or appointment of receiver. The language employed in Section 9 of the Act, more particularly the words “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” makes it clear that the Court shall have the same power to make any order in any proceedings under Section 9 of the Act. Thus, an order making or rejecting an application for ad-interim injunction is essentially an order under Section 9 of the Act only and not otherwise. Further, the scope and ambit of the Act does not empower the District Judge to entertain any application beyond the scope of this Act, be it an application under Order 39 Rules-1 and 2 or 3, CPC. Even if such an application is filed the same can only be considered to be an application under the provisions of Section 9 of the Act.

¶53

Learned counsel for the parties made arguments at length on merits of the case relying upon different case laws of the Hon’ble Supreme Court. This Court does not feel it prudent to delve into the merit of the case at this stage which can be effectively gone into at the time of hearing of the petition under Section 9 of the Act.

¶54

¶55

Thus, in view of the discussions made above, this Court holds that the appeal under Order 43 Rule-1(r), CPC is not maintainable and the same is accordingly dismissed.

¶56

Interim order dated 28.01.2016 passed in Misc. Case No.71 of 2016 stands vacated.

¶57

While parting with the order, this Court must record its note of appreciation for able assistance of Mr.Tanmay Mishra, learned counsel for the respondent for adjudication of the appeal.

¶58

Issue urgent certified copy of the order on proper application.

¶59

………………………….

¶60

K.R. Mohapatra, J.

¶61

Orissa High Court, Cuttack Dated the 4^th March, 2016/bks/ss

M/S.Sai Concrete Pavers Pvt.Ltd. v. National Alluminum Company Ltd.

Case brief

What is this about?

What did the court decide?

M/S.Sai Concrete Pavers Pvt.Ltd. v. National Alluminum Company Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Satya N.Mohapatra Vs State

Ashok Kr. Tripathy Vs Kartika Ch. Sahoo

Nesco Ltd. Vs Dilip Kumar Bardhen

Panchanan Sahu Vs Prafulla Kr. Sahu

Niranjan Jena Vs Umakanta Jena

Hemanta Kumari Routray Vs State of Orissa