Vashdev Bheroomal Pamnani vs M. Bipinkumar & Co.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1986 Supreme(Bom) 246

IN THE HIGH COURT OF BOMBAY
A.D. Tated, J.
Vashdev Bheroomal Pamnani.... Petitioner.
Versus
M. Bipinkumar Co..... Respondents.
Civil Revision Application Nos. 248 257 of 1985, decided on 3-9-1986.
Advocates appeared :
G.G. Gavnekar, for petitioner-plaintiff.
K.K. Vyas, for respondent-defendants.

Headnote:Sections 34 and 41-Powers to pass interim orders mentioned in Section 41 (b) can be exercised in respect of any matters set out in Second Schedule for the purpose of arbitration proceedings-Judge did not keep in mind provisions of Section 41 while bearing application under Section 34. Trial Judge failed to exercise his jurisdiction to bear application for temporary injunction and pass appropriate orders thereon by the impugned orders in both the suits whereby he stayed ad interim injunction granted by him in both snits-Orders of trial Judge in both suits set aside.
The arbitrator do not have any powers under the Arbitration Act to grant interim orders for the protection of the subject-matter of the dispute. The powers to pass interim orders mentioned in clause (b) of Section 41 of the Arbitration Act can be exercised in respect of any of the matters set out in the Second Schedule for the purpose of, and in relation to, arbitration proceedings even before proceedings under some other section of the said Act are started, but only for the purpose of, and in relation to the arbitration proceedings.
It appears that at the hearing of the application under Section 34 of the Arbitration Act the attention of the trial Judge was not drawn to the provisions of Section 41 of the said Act. The Judge thought that on stay of suit proceedings under Section 34 of the Act, all proceedings in the suit, including the hearing of the application for a temporary injunction, must be stayed. Therefore, while staying the suit proceedings under Section 34 of the Act he also stayed the ad interim injunction granted by him and did not hear the parties for passing final orders on the plaintiffs application for a temporary injunction. It is obvious that the trial Judge failed to exercise the jurisdiction vested in him to hear an application for a temporary injunction and pass appropriate orders thereon by the impugned orders in both the suits whereby he stayed the ad interim injunction granted by him in both the suits. Therefore, the order of the trial Judge staying the ad interim injunction granted by him in both the suits it hereby set aside. The trial Judge shall hear the parties on the plaintiffs application Ex. 5 in both the suits on merits and shall pass order according to law, and pending the decision on these applications for a temporary injunction the ad interim injunction passed by the learned trial Judge shall continue.

JUDGMENT - A.D. TATED, J.:---Both the civil revision applications are disposed of by this common judgment. The petitioner and the respondents are the same in both the revision applications. The petitioner (hereinafter referred to as "the plaintiff") instituted Civil Suits No. 4 of the 1985 and 8 of 1985 in the Court of the Civil Judge (Senior Division), Thane, for a perpetual injunction restraining the respondents (hereinafter referred to as "the defendants"), their agents and employees from entering into the suit premises situate at Plot No. B-46, 16/29 'C', Wagle Industrial Estate, Thane. In both the suits the plaintiff filed an application for a temporary injunction marked Ex. 5' in both suits. The learned trial Judge passed an ex-parte temporary injunction on 2nd January, 1985 and the defendants were noticed to show cause why the ex parte order for temporary injunction should not be confirmed in both the suits. The defendants put in appearance in both the suits and moved an application under section 34 of the Arbitration Act, 1940, which is marked Ex. 12' in both the suits. According to the defendants, the conducting agreement under which they were allowed to conduct the business embodied an arbitration clause and, therefore, it was necessary to refer the dispute to arbitration and the suits were liable to be stayed under section 34 of the Arbitration Act. On hearing the parties, the learned trial Judge allowed the said application in both the suits by his orders dated 31st January, 1985. While staying the suits under section 34 of the Arbitration Act the learned trial Judge also stayed the ad interim temporary injunction granted by him as per the plaintiff's application for a temporary injunction (Ex. 5'). Feeling aggrieved by the stay of the ad interim temporary injunction and refusal by the learned trial Judge to hear the parties on the application of the plaintiff for a temporary injunction, the plaintiff has preferred those two revision applications against the separate orders passed by the learned trial Judge in two suits on 31st January, 1985 on Ex. 12'.

2. The plaintiff sought an ad interim injunction and this Court on 4th April, 1985 granted an ex parte temporary injunction in terms of prayer (b) of the revision applications and the same was confirmed on 24th April, 1985. Thus the ex parte ad interim injunction granted by the trial Court on 2nd January, 1985 is being continued in view of the ad interim temporary injunction granted by this Court on 4th April, 1985.

3. The learned Counsel for the plaintiff in both the revision applications stated that the learned trial Judge was not right in staying the ad interim temporary injunction granted by him while staying the suits under section 34 of the Arbitration Act. According to him, in view of section 41 of the Arbitration Act read with item No. 4 in the Second Schedule to the said Act, the Court could deal with plaintiff's application for a temporary injunction, though it stayed the suit proceedings under section 34 of the said Act. Section 41 of the Arbitration Act reads as follows:-

"41. Procedure and powers of Court.---Subject to the provisions of this Act and of rules made thereunder---

(a) the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court, and to all appeals under this Act, and

(b) the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceeding before the Court;

Provided that nothing in Clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters."

Item No. 4 in the Second Schedule to the Arbitration Act reads thus:---

"4. Interim injunctions or the appointment of a Receiver."

The arbitrators do not have any powers under the Arbitration Act to grant i

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Judicial Analysis

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1986 Supreme(Bom) 246

IN THE HIGH COURT OF BOMBAYA.D. Tated, J.Vashdev Bheroomal Pamnani.... Petitioner.VersusM. Bipinkumar Co..... Respondents.Civil Revision Application Nos. 248 257 of 1985, decided on 3-9-1986.Advocates appeared :G.G. Gavnekar, for petitioner-plaintiff.K.K. Vyas, for respondent-defendants.

Judicial Analysis

IN THE HIGH COURT OF BOMBAY
A.D. Tated, J.
Vashdev Bheroomal Pamnani.... Petitioner.
Versus
M. Bipinkumar Co..... Respondents.
Civil Revision Application Nos. 248 257 of 1985, decided on 3-9-1986.
Advocates appeared :
G.G. Gavnekar, for petitioner-plaintiff.
K.K. Vyas, for respondent-defendants.