A party whose claims have been rejected in the course of the arbitral proceedings cannot have an arbitral award enforced in accordance with Section 36 of the Arbitration and Conciliation Act, 1996.

V. KAMESWAR RAO, J.

1. This is a petition filed by the petitioner under Section 9 of the Arbitration and Conciliation Act, 1996 for interim protection.

2. It is the case of the petitioner that the petitioner and the respondent No. 1 entered into a Joint Venture Agreement intending to develop and sell; (i) residential units on a piece of land measuring 3.436 hectares, situated in Khara No. 201 of Village Kalwadi on 125 road of Vayu Vihar, Shastripuram, Agra, Uttar Pradesh; (ii) a group housing project on the project land in the name and style of HRC Horizons and (iii) a commercial strip of land on the project land. The profits were to be shared by the petitioner and respondent No. 2 in the ratio of 25:75 respectively.

3. It is the petitioner’s case that on March 28, 2007, an Exit Agreement was executed between the petitioner, respondent No. 1 and the respondent No. 2, wherein the respondent No. 2 agreed to purchase the twenty five percent share of the petitioner, in the business of the joint venture for a fraction of its actual market value. It is also the petitioner’s case that in addition to Exit Agreement, the petitioner and the respondents entered into a Shareholder Agreement on November 28, 2007, whereby the business of the joint venture was to be transferred to the company, shares were to be issued to the petitioner which would eventually be purchased by the respondent for a total consideration of Rs. 16,60,000/-, including the sum of Rs. 6,60,000/- paid under the Exit Agreement, leading to the exit of the petitioner from the business.

4. It is the case of the petitioner that earlier, it had filed OMP No. 505/2010, wherein, this Court had protected the petitioner by restraining the respondents from selling, mortgaging, transferring and encumbering, alienating, disposing of the properties situated over land bearing Khasra No. 201, Village Kalwari, Shastri Puram, Agra, forming the part of the Exit Agreement. It is also its case that in OMP 574/2011, titled as HRC Engineers Estate Private Limited and Ors. Vs. Piyush Singhania, this Court restrained the respondents from selling, mortgaging, transferring, alienating, disposing of the property situated at land bearing Khasra No. 201, Village Kalwari, Shastri Puram, Agra, forming part of the Exit Agreement, including certain substituted properties.

5. The learned counsel for the petitioner states that the parties were relegated to the arbitration proceedings and the learned Arbitrator has held as under:

(1) Claim of Mr. Piyush Singhania, Sole Proprietor of Singhania, the Claimant is rejected.

(2) Counter Claim of HRC Engineers Estate Private Limited, Respondent No.1 and Mr. Bikram Upadhaya, Respondent No.2 is rejected.

(3) Parties shall bear their own costs of the arbitration proceedings.

6. Mr. Sanjeev Anand, learned counsel, who appears for the respondent on advance notice, had taken a preliminary objection about the maintainability of the petition under Section 9 of the Arbitration and Conciliation Act, 1996 in view of the fact that the disputes/claims between the parties/filed by the petitioner have not been decided by the learned Arbitrator in favour of the petitioner. He had relied upon the judgment of the Division Bench of this Court reported as 2014 (145) DRJ 399 (DB) Nussli Switzerland Ltd. Vs. Organising Committee Commonwealth Games, 2010.

7. Mr. Rajshekhar Rao, learned counsel appearing for the petitioner would state that the aforesaid judgment of Nussli Switzerland Ltd. (supra) would not be applicable to the facts of this case in view of the conclusion of the Division Bench in para 34 of the judgment inasmuch as the Organising Committee, which had its claims rejected, except a part, but which subsumes into the larger amount awarded in favour of the opposite party, even if succeeds in the objections to the award would at best have the award set aside for the reason the Arbitration and Conciliation Act, 1996 as distinct from the power of the Court under the Arbitration