Point of Law: Sub-section (3) of Section 9 provides for restriction of exercise of powers by the Court and it has to decide whether the remedy provided under section 17 is efficacious or not.

JUDGMENT :

1. By way of this petition under Article 227 of the Constitution of India, the petitioner – original applicant has challenged the order dated 16.7.2021 passed by the Commercial Court and learned 12th Additional District Judge, District and Sessions Court, Surat below interim application filed by the applicant in Commercial CMA no.2 of 2021.

As all documents including the material relied upon before the trial court is forming part of the record of this petition, we do not deem it fit to call for the original record and proceedings but to decide this petition on the basis of the record before us. The pleadings and documents which are relied upon by the parties before the trial court is part of the paper book. We have called for the original record and proceedings of IAAP 5 of 2021.

2. Following noteworthy facts emerge from the record of the petition:-

2.1 That, the parties to this petition entered into Cargo Handling Agreement (CHA) (hereinafter referred to as "the agreement") on 21.2.2011. It appears from the record that Article 15 of the said agreement stipulates that the disputes between the parties arising out of the said agreement shall be settled by way of arbitration. As per the record, several amendments were made in the said agreement. However, they are not necessary to be mentioned in this order. Record further shows that the disputes arose between the parties regarding the agreement in the month of December, 2019. The record further shows that the petitioner issued a notice to the respondent invoking the arbitration between the parties in relation to the agreement in the question on 22.11.2020. The notice dated 22.11.2020 was replied by the respondent on 30.12.2020. The petitioner herein filed a petition before this Court under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act" for the sake of brevity) which came to be registered on 5.1.2021 before this Court as IAAP no.5 of 2021 seeking appointment of an Arbitral Tribunal to adjudicate the disputes between the parties. On 8.1.2021, this Court (Coram: Ms. Bela M. Trivedi, J.) issued notice in IAAP no.5 of 2021. The petitioner herein filed an application under Section 9 of the Act before the Commercial Court at Surat on 15.1.2021. The said application was contested by the respondent before the Commercial Court at Surat and hearing of the said application took place before the Commercial Court at Surat from January 18, 2021.

2.2 The respondent also filed an application for interim measure as provided under Section 9(1) of the Act before the same Court i.e. Commercial Court at Surat.

2.3 Both the applications were heard together and final arguments in both the applications under Section 9(1) of the Act were made by both the sides before the Commercial Court at Surat between May 17, 2021 to June 7, 2021 both were made by both the sides before the commercial Court the applications were heard together and kept for orders ultimately on June 7, 2021. Record indicates that the Commercial Court at Surat was to pronounce the orders on both the applications filed by the respective parties under Section 9(1) of the Act on June 18, 2021, however, did not pronounce the orders and the matter was adjourned to 3.7.2021 for pronouncement of orders. Even on that day, the Commercial Court could not pronounce the orders on both the applications under Section 9(1) of the Act filed by the respective parties and the matter was kept for orders on July 20, 2021. Meanwhile, the application filed under Section 11(6) of the Act by the petitioner was allowed with consent on an express written agreement between the parties and by an order dated 9.7.2021, which is referred to hereinafter, this Court was pleased to appoint Arbitral Tribunal, consisting of Hon’ble Mr. Justice Vikramjit Sen and Hon'ble Mr. Justice G.T. Nanavati, former Judges of the Hon’ble Supreme Court of India as arbitrators and Hon'ble Mr. Justice Deepak Gupta, former Judge of the Ho