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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V. MOHTA & A.A.SAYED, JJ.
M/s.Universals Enterprises – Appellant
Vs.
Deluxe Laboratories Pvt.Ltd. – Respondents
APPEAL (L) NO.96 OF 2016 IN ARBITRATION PETITION NO.1279 OF 2015 WITH NOTICE OF MOTION (L) NO.696 OF 2016 IN APPEAL (L) NO.96 OF 2016 IN ARBITRATION PETITION NO.1279 OF 2015
Decided On : 2-04-2016
Arbitration Act - Section 9 Petition - Section 37
Fact of the Case:
The Appellant filed a Section 9 Petition under the Arbitration Act seeking an injunction restraining the respondent from selling or disposing of flats. The learned Single Judge impounded the agreement for payment of stamp duty and directed the document to be forwarded for adjudication.
Finding of the Court:
The Court found that the impugned order resulted in the refusal of adinterim relief sought by the Appellant, leading to the present Appeal under Section 37 of the Arbitration Act.
Issues: The issues included the refusal of adinterim relief, maintainability of the Appeal, and the authority to grant adinterim protective injunction under Section 9.
Ratio Decidendi: The Court held that the existence of an arbitration agreement and the arbitration clause prima facie justified the consideration of adinterim reliefs under Section 9, despite the issue of insufficient stamp duty.
Final Decision: The Appeal was allowed, and the learned Single Judge was requested to hear both parties on the Section 9 Petition for grant of adinterim relief pending the reference to the concerned authority for adjudication of stamp duty.
Anoop V. Mohta, J.
Heard, entertained and decided finally by consent of the parties.
2. This Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 ( hereinafter referred to as `Arbitration Act') is filed by the Appellant, in whose Section 9 Petition the learned Single Judge by order 28.01.2016 has not granted any adinterim relief, though specifically prayed. The impugned order reads as under:
“1. … … ...
2. This petition is under Section 9 of the Arbitration & Conciliation Act, 1996 for an order of injunction restraining the respondent from selling, disposing of or creating third party right in respect of flats in the building constructed on the plot bearing C.S. No. 136(part), 2/136 (part) and 110 (part) of Lower Parel Division at Manjrekar Marg, Gandhi Nagar, Worli, Mumbai 400 018.
3. It is the case of the Petitioner that the Respondent executed the Agreement dated 29th December, 2008 on 100 Rupees stamp paper agreed to provide six flats. He further submits that it is specifically stated that on completion of the said project, the petitioner is entitled to 40% of the total proposed area aggregating to 73,200 sq. ft. super built up in the sale building to be constructed by the joint venture. He submits that as per the terms and conditions of the said agreement, if the built up area is less than 73,200 sq. ft. and or more, then the petitioner will be entitled to 40% of the same. He further submits that the respondent was called upon by the legal notice dated 15.03.2014 to comply the said agreement. As they failed and neglected to do so, the petitioner filed the present petition under Section 9 of Arbitration & Conciliation Act, 1996.
4. … … …
5. … … …
6. … … …
7. … … …
8. In these circumstances, the following order is passed:
a) The agreement which is on stamp paper dated 29.12.2008 being Exh.'A' to the petition is impounded for payment of stamp duty if it is applicable.
b) The authenticated copy of the said agreement shall be forwarded by the Prothonotary & Senior Master, High Court, Original Side to the Collector of Stamp, Mumbai for adjudication of the stamp duty and penalty, if any, on the documents under the provision of Maharashtra Stamp Act.
c) The Collector of Stamp, Mumbai shall expedite the determination in terms of clause (b) above and complete the exercise within the period of 8 weeks from the receipt of the duly authenticated copy together with the authenticated copy of this order from the Prothonotary and Senior Master, High Court, Original Side, Bombay.
d) Office is directed to place the matter on board after ten weeks.
9. At the request of learned Counsel for the petitioner, this order is stayed for four weeks.
3. The submission made by the learned Counsel appearing for the Appellant is that the impugned order resulted into refusal and/or non-grant of adinterim relief though sought for in view of urgency so expressed in the Petition. Therefore present Appeal under Section 37 of the Arbitration Act.
4. Sub-clause (1) and sub-clause (b) of Section 37 is reproduced as under:
37. Appealable orders.— (1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:—
(a) … … …
(b) granting or refusing to grant any measure under section 9;
(c) … … …
5. Learned Counsel for the Respondent, however, has raised a preliminary objection to the maintainability of such Appeal. He placed reliance upon judgment of the Supreme Court in SMS Tea Estates Pvt.Ltd. v/s. Chandmari Tea Company Pvt.Ltd., (2011) 14 SCC 66 and judgments of Division Bench of this Court in Agility Logistics Pvt.Ltd. v/s. Jagannath Parmeshwar Mills Pvt.Ltd., Appeal No.479 of 2012 in Arbitration Application No.29 of 2012 dt.25-3-2013 and in Lakdawal Developers Pvt.Ltd. v/s. Badal Mittal and ors., Appeal (L) No.272 of 2013 in Arbitration Petition No.221 of 2013 dt.25-6-2013 and the learned single Judge of this Court in Mr.Badal Mittal and ors. v
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