The limited scope of court intervention and the absence of specific provisions for modification by the court under the Arbitration Act.

1. This Notice of Motion has been taken out by Respondent No.1 in the Arbitration Petition No. 484 of 2012 and prayed as under:

(a) that the Hon'ble Court be pleased to modify order dated 29th January, 2013 and discharge the Court Receiver, High Court, Bombay in respect of property situate at Chilli to Vanila, Mahesh Residencey, Off. Link Road, M.G. Raod, Dahanukarwadi, Kandivali (W), Mumbai 400 067 on such terms and conditions as the Hon'ble Court deems fit and proper;

(a)(i) In the alternative the Hon'ble Court may be pleased to grant leave to Respondent No.1 to institute and/or continue legal proceedings against the Court Receiver, High Court, Bombay being Receiver of the said property viz. Property situated at M/s. Vedansh Hospitalities & Resorts Pvt. Ltd.,, Chilli to Vanila, Mahesh Residency, Off. Link Road, M.G. Road, Dahanukarwadi, Kandivali (W), Mumbai 400 067 and also permit Respondent No. 1 and/or its servants and agents to attach, take possession and sell the said property including under provisions of SARFEST Act, 2002;

(b) for such other and further relief as this Hon'ble Court may deem fit and proper;

(c) for ad-interim relief in terms of prayer clause (a);

(d) for costs of the notice of motion.

2. The original Petitioner’s Application, under section 34 of the Arbitration and Conciliation Act, 1996 (for short, the Arbitration Act) has been allowed. The following is the operative order of the Judgment:

“4. However, in view of the clear liability of the appellants and respondent No.2, pending the hearing and final disposal of this appeal, the following order is passed:-

i). The Court Receiver, High Court, Bombay is appointed as a Receiver of the property forthwith. At this stage, the Court Receiver shall take only formal possession and appoint the appellants and respondent No.2 as his agents without security or royalty. However, the Court Receiver shall forthwith determine the royalty for running the hotel which will become payable with effect from 1.8.2011. This is to enable the appellants and respondent No.2 to raise money to secure the respondent – bank’s claim in the meantime.

ii). The appellants and respondent No.2 are restrained from disposing of, alienating, encumbering, parting with possession of or creating any third party rights in, to, upon or in respect of the said property.

iii). The Court Receiver shall determine the royalty forthwith and in any event before 1.8.2011. In the event of the appellants and respondent No.2 refusing to accept the agency of the Court Receiver, the Court Receiver shall invite bids from third parties for the purpose of running and managing the hotel. In that event, liberty to the appellants and respondent No.2 to bid for the agency of the Court Receiver. In the event of the appellants or respondent No.2’s bid matching the highest bid, preference will be given to them.

iv). The pendency of this appeal shall not restrict the arbitrator from proceeding with arbitration and making and publishing the award.

v). The impugned order shall remain stayed and shall be subject to the above order.”.

3. The learned counsel appearing for the original Petitioner has raised preliminary objections to the maintainability of this Notice Motion. Prayers are made by the Appellant to modify order dated 29th January, 2013 and to discharge the Court Receiver. In the alternatively, a prayer is made for grant of leave to institute a legal proceeding, including the attachment; and to take possession and sell the property under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, SARFAESI Act).

4. The Arbitration Act, 1996 nowhere provides and/or permits a court under section 34 to review and/ or modify its own order on merit. The submission of the Applicant/ Respondent No.1 that the Civil Procedure Code (C.P.C.) permits so and the same cannot be ignored in such a situation and, therefore, the Applica