IMPORTANT POINT
Orders granting or refusing ex-parte interim measures under Section 9 of the Arbitration and Conciliation Act, 1996 are appealable under Section 37, despite the Commercial Courts Act, 2015.

JUDGMENT :

ANANT RAMANATH HEGDE, J.

1. Whether an order refusing or granting ex-parte interim measure on an application under Section 9 of the Arbitration and Conciliation Act, 1996 (for short ‘Act, 1996’) falling under ‘Commercial Arbitration Dispute’ is appealable order under Section 37 of the Act, 1996, or such an appeal, barred under the proviso to Section 13(1A) of the Commercial Courts Act, 2015? (for short ‘Act, 2015’).

2. The respondents have raised a contention that the present appeal impugning the order of the Commercial Court, issuing emergent notice, and declining ‘ex-parte’ interim measure on an application under Section 9 of the Act, 1996 is not maintainable.

3. Learned Senior counsel Sri.Dhananjay Joshi, appearing for the appellant raised the following contentions:

The power to grant interim order under Section 9 of the Act, 1996 also includes the power to grant ex-parte interim order. Such power is expressly recognised in the High Court of Karnataka Arbitration (Proceedings before the Courts) Rules, 2001 (for short 'Rules, 2001’). Thus, an order issuing an emergent notice and declining exparte order is also an appealable order under Section 37 of the Act, 1996.

The co-ordinate Bench of this Court in M/s. Sorting Hat Technologies Private Limited vs. Sri Vishal Vivek Tiwar (COMAP No.274/2022) following the judgment of the Delhi High Court and Andhra Pradesh High Court has held that the appeal against the order under Section 9 refusing ex-parte interim measure under Section 9 of the Act, 1996 is maintainable and the law laid down in Symphony Services Corporation (India) Private Limited, Bangalore vs. Sudip Bhattacharjee, (2008) 2 KLJ 24 is no longer good law

4. Reliance is also placed on the following judgments:-

1. M/s Sorting Hat Technologies Private Limited vs. Sri Vishal Vivek Tiwari, COMAP NO.274/2022

2. ICICI Bank Limited vs. IVRCL Ltd. (formerly known as ICRCL Projects and Infrastructure Ltd) and others, 2015 SCC ONLINE Hyd 311

3. M/S Bilasraika Sponge Iron Pvt. Ltd., vs. M/S Devi Trading Company, 2011 SCC ONLINE AP 210

4. Aventis Pasteur S.A vs. Cadila Pharmaceuticals Ltd., 2002 SCC ONLINE Guj 288

5. Perin Hoshang Davierwalla And Another vs. Kobad Dorabji Davierwalla and others, 2014 SCC ONLINE Bom 534

6. M/S Nikitha Build-Tech (P) Ltd., vs. M/S Natural Textiles Pvt. Ltd., ILR 2010 KAR 4722

7. M/S Nikitha Build-Tech (P) Ltd., vs. M/S Natural Textiles Pvt. Ltd., ILR 2010 KAR 2846

8. Smt Madhumati vs. The State of Karnataka and others, WP NO.103965/2023

9. Essar House Private Limited vs. Arcellor Mittal Nippon Steel India Limited, 2022 SCC ONLINE SC 1219

5. Sri Ashok Haranahalli, the learned Senior counsel appearing for respondents No.2 to 5, raised the following contentions:-

In a proceeding under the Act, 1996, in respect of a Commercial Arbitration Dispute, the appeal under Section 37 of the Act, 1996 is maintainable against an interlocutory order, only if, such order falls under Order XLIII of the Code of Civil Procedure, in view of the proviso to Section 13(1A) of the Act, 2015.

The impugned order is not a final order under Section 9 of the Act, 1996 and the application on which the impugned order is passed is still pending consideration before the learned District Judge, as such, the appeal is not maintainable.

The order in M/s. Sorting Hat Technologies Private Limited supra is not a law declared and it is only a tentative view expressed while issuing notice to the respondent and law laid down by the single judge of this Court in Symphony Services Corporation (India) Private Limited, Bangalore supra still holds the field.

The scheme of the Act, 1996 and Act, 2015 does not enable an appeal against an order refusing to grant an ex-parte order and if such an appeal is held to be maintainable, it will defeat the very object of the Act, 1996 and the Act, 2015 in view of the law in BGS SGS SOMA JV Vs. NHPC LTD, AIR Online 2019 SC 1720 by the Apex Court.

The dispute raised under Section 9 of the Act, 1996 is also not a commercial