Admit. Learned advocate Mr. Nandish Chudgar waives service of notice for the respondent, who appears on the basis of the Caveat.

With the consent of learned counsels for the parties, the matter is taken up for final hearing at the admission stage.

2. The appellant challenges issuance of ad interim ex parte injunction order by the learned 3rd Additional District Judge, Bharuch.

3. Broadly stated, respondent No.2, Oil and Natural Gas Corporation [“ONGC” for short] had engaged the appellant to set up PP & PE Plant at Dahej – Bharuch. The appellant, in turn, has entered into contract with the respondent No.1. It is subcontract. It was submitted that the project undertaken by the appellant via this contract with ONGC is of Rs. 2000 Crores, while the subcontract with respondent No.1 is of about Rs. 100 Crores. The said subcontract for part of PP & PE Plant was said to have been entered into on 24.11.2011. Thereafter, on 19.7.1913, the appellant had terminated the said subcontract with respondent No.1. It appears that to resolve the differences, a joint meeting was held on 6.8.2013. Much of the arguments by the learned advocates for the parties centers around the minutes of the meeting dated 6.8.2013. In the said meeting, parties had considered continuing or reviving of the contract with respondent No.1. On 12.8.2013, respondent No.1 filed an application before the District Court, Bharuch under Section 9 of the Arbitration Act, which was registered as Misc. Civil Application No. 141/2013. In that application, the trial Court, after considering the material placed on record and considering the submissions of the learned advocate for the applicant, was pleased to pass

the following operative order below Exh.40 :

“ORDER

Ex parte ad interim injunction is granted till dt. 19.8.2013.

Opponents are hereby restrained by the injunction order as prayed in Para 32(a) & (b).

Urgent process be issued on payment of urgent PF.

Applicant is directed to comply the provisions of O. 39 r. 3(a) and (b) of CPC”

4. Paragraphs 32 (a) & (b) of the application read thus:

“(a) The Hon’ble Court be pleased to grant injunction restraining opponent No.1, their servants, agents or anybody acting through opponent No.1, from creating any obstruction, hindrance and/or nuisance in the applicant’s work as per subcontract Nos. 1 & 2, till the arbitral Tribunal is not appointed and arbitral Tribunal passes an award.

(b) The Hon’ble Court be pleased to restrain opponent No.1 from entering into any arrangement and/or implementing arrangement with any third party with respect to work as stated in subcontract Nos.1 & 2 and the Hon’ble Court may also be pleased to restrain opponent No.1 from completing the work of Project by themselves and/or through any third party the work which is envisaged by sub contract Nos.1 & 2, till the arbitral Tribunal is appointed and the arbitral Tribunal passes an award.”

5. Granting of above ad interim ex parte injunction by the learned trial Court is under challenge herein by filing the present appeal under Order 43 Rule 1(r) of the Code of Civil Procedure.

6. Heard learned Senior Advocate Shri Mihir Joshi for the appellant and learned Senior Advocate Shri S.N. Soparkar for respondent No.1.

7. Shri Joshi submitted that the learned trial Court has granted prayers (a) & (b) without granting prayer (c), while in effect it amounts to granting of prayer (c) also. In the circumstances of the present case, it was not open for the trial Court to grant prayer (c). Secondly, it was submitted that granting of prayers amounts to granting of relief of mandatory nature. The relief as granted, though has appearance of relief in negative form or relief of prohibitory nature, in essence and in effect, it is a relief of mandatory nature. In the facts and circumstances of the case, ad interim ex parte relief of mandatory nature ought not to have been granted. Thirdly, it was also pointed out by the learned Senior Advocate Shri Joshi that the trial Court has proce