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2007 Supreme(Guj) 866
IN THE HIGH COURT OF GUJARAT
K.M. MEHTA, J.
Suzlon Energy Ltd. – Appellant
Versus
Vishal Plastomar Pvt. Ltd. – Respondent
First Appeal No. 2925 of 2007, C.A. No. 8194 of 2007
Decided On : 25-09-2007
Advocate Appeared:
For the Appellants : P.M. Thakkar, Navin Pahwa, K.T. Dave.
For the Respondents: Mihir Thakore, Umesh D. Shukla, A.J. Yagnik.
Headnote:
Arbitration and Conciliation Act, 1996 – Section 37 – Arbitration Agreement – Interim Relief - Appellant-original respondent, has filed this appeal under Section 37 of the Arbitration and Conciliation Act, 1996, challenging the judgment and order dated passed by learned City Civil Judge, Court No. 12 below Notice of Motion in Civil application filed under Section 9 of the Arbitration Act – By impugned order the learned Judge granted interim relief in terms of Notice of Motion and meanwhile the applicant shall produce the unconditional bank guarantee of within four weeks from the date of the order erection and commissioning, maintenance of one Wind Turbine Generators at Village Rajasthan and to Infrastructure Private Limited, for the services of erection, installation of one – From the record it appears that the said site selection for commissioning of the WTG at a particular place Village in State of Rajasthan was done by the experts of respondent and the land for the site was given on long term lease to petitioner by respondent land required for the project was given on sublease by Developers Private Limited an associate concern of the respondent having the very land on lease with the prior permission of the Department of Revenue, State of Rajasthan, who has actually leased the land to the sister concern of the respondent work of development of land and site, foundation and civil work, erection and commissioning of WTG and electrical, substation and/or pooling charges to be paid to Rajasthan Nigam Limited and/or Rajasthan Renewable Energy Corporation Limited and all other site related works and expenses was entrusted by the petitioner under the instructions of respondent to respondents group company Developers Private Limited – Held, Considered Section 8 of the Act which provides power to refer parties to arbitration where there is an arbitration agreement. Sub-section provides a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement of the substance of the dispute refer the parties to arbitration. Sub-section 2 of Sec. 8 provides the application referred to in sub-section shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. Sec. 9 provides interim measures, etc. by court which provides that a party may or during arbitral proceedings or at any time after the making of the arbitral award or for an interim measure of protection in respect of any of matters in connection with arbitration learned Senior Counsel with learned advocate, appears on behalf of original respondent who is appellant herein strongly objects to same learned counsel submitted that their submission is that order of trial Court is contrary to and inconsistent with the provisions of Order 39 Rule 3 of CPC learned counsel further submitted that it is no doubt true that they have filed appeal and Court condoned the delay and thereafter due to exigency of time the matter was heard partly and adjourned to some other occasion due to difficulty of the learned senior counsel appearing for both the sides and partly because this Court was busy with other part heard matters – Application is allowed.
JUDGMENT :
K.M. MEHTA, J.
1. M/s. Suzlon Energy Limited, appellant-original respondent, has filed this appeal under Section 37 of the Arbitration and Conciliation Act, 1996, challenging the judgment and order dated 4.5.2007 passed by the learned City Civil Judge, Court No. 12, Ahmedabad- below Notice of Motion in Civil Misc. Application No. 376 of 2007 i.e. application filed under Section 9 of the Arbitration Act. By the impugned order the learned Judge granted interim relief in terms of para 16(D) of the Notice of Motion and meanwhile the applicant shall produce the unconditional bank guarantee of Rs. 5 lacs within four weeks from the date of the order.
1.1 The appeal is admitted and with consent of parties this appeal is taken up for final disposal.
2. The facts giving rise to this appeal are as under.
2.1 Vishal Plastomer Pvt. Ltd. respondent in the present matter and original petitioner (hereinafter to be referred to as “petitioner”) is a Private Limited Company incorporated and registered under the Companies Act 1956 having its registered office at Ahmedabad. The petitioner is one of the Group Companies of “Vishal Group.” The petitioner as part of the diversification strategy, decided to foray into power generation and decided to put up Wind Power Plants. In this connection, the petitioner came in contact with the M/s. Suzlon Energy Limited respondent in the trial court and appellant herein.
2.2 The appellant M/s. Suzlon Energy Ltd. original respondent (hereinafter referred to as “respondent”) is a Public Limited Company incorporated and registered under the Companies Act 1956 having its registered office at Ahmedabad. It is an Indian Multinational Company engaged in the business of designing, engineering, procurement, supply, commissioning, maintenance and services of Wind Turbine Generators.
2.3 It appears that pursuant to the discussions and negotiations, the petitioner and the respondent agreed on the terms and conditions of the Purchase Order dated 24th May, 2003, to be made by the petitioner on the respondent. On issuance of the Purchase Order by petitioner, the respondent accepted the same by applying its seal and making of the signature of the Chairman and Managing Director of the respondent. The said Purchase Order clause 14 is an arbitration clause which reads as follows:
“If at any time any question, any dispute and/or differences whatsoever shall arise between the parties to this contract due to any special conditions of this contract or in connection with this contract, and failing amicable settlement the same shall be referred to an arbitrator under the Indian Arbitration and Reconciliation Act, 1998 or any statutory modifications for the time being in force and such arbitration shall take place at Ahmedabad.”
2.4 From the record it appears that the very terms and conditions of the purchase order set out the mutual rights and obligations of the petitioner and respondent. In other words the purchase order itself is a document of contract between the petitioner and the respondent.
2.5 The very purchase order entrusted the work of supply, erection and commissioning, maintenance of one Wind Turbine Generators (WTG) of S66/1250 KW) at Village Pohra, District Jaisalmer, Rajasthan Rs. 4,20,00000/- (Rupees Four Crore Twenty Lacs only) and to Suzlon Infrastructure Private Limited, for the services of erection, installation of one WTG at Rs. 65,00,000/- (Rupees Sixty Five Lacs only). From the record it appears that the said site selection for commissioning of the WTG at a particular place Village Pohra, District Jaisalmer in the State of Rajasthan was done by the experts of respondent and the land for the site was given on long term lease to petitioner by respondent. The land required for the project was given on sublease by Suzlon Developers Private Limited an associate concern of the respondent having the very land on lea
