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2013 Supreme(Gau) 407

IN THE HIGH COURT OF GAUHATI
A.C. Upadhyay, J.
M/s. Brahmaputra Realtors Pvt. Ltd. - Appellants
Vs.
M/s. G.G. Transport (P) Ltd. and Ors. - Respondent
Arbitration Appeal No. 2/2013
Decided on : 25.07.2013

Advocates appeared:
For Appellant/Petitioner/Plaintiff:Mr. D. Baruah and Ms. B. Das, Advocates
For Respondents/Defendant:Mr. P.K. Kalita, Mr. V. Sharma and Mr. G.J. Saikia, Advocates for Respondent No. 1

Headnote:

Arbitration and Conciliation Act, 1996 - Section 37(1)(a) and 9 - Companies Act, 1956 - Specific Relief Act, 1963 - Section 14(1)(a) - Civil Procedure Code, 1908 - Order 1 - Rule 10 sub-rule (2) - Status-quo - Civil Matter - General Power of Attorney - Power of - Sale - Possession of Land - Appellant is a Private Limited Company under Act, 1956, having its registered office and being represented by its Director - On mutual arrangement, Respondent No. 2 and other respondents are occupying different plots of land and utilizing their share of land for their own purpose - By said Power of Attorney, Respondent No. 2 had given power to Respondent No. 3 to sell plot of land mentioned in Schedule of said Power of Attorney and to receive consideration of such sale - By said Power of Attorney, Respondent No. 2 gave power to Respondent No. 3 to apply for permission for such sell and after obtaining of such permission from competent authority to receive sale price and to deliver possession of the land to purchaser - Held, Court view that an order of injunction under Section 9 of Act, cannot be granted against a third party in exercise of powers, who is not a party to arbitration agreement or arbitration proceedings and who has a distinct right over property in question - Injunction order can be granted, u/s 9 of Act against a third party if he is asserting or claiming his right through any of parties to Arbitration - More so, when agreement conceives of compensation for breach of terms of agreement and an exclusive third party right is created on property in question, then enjoyment of property by such third party should not be disturbed by passing injunction order - It is admitted fact that Respondent No. 2 revoked power of attorney granted in favour of Opp. Party No. 3 - Respondent No. 2 sold suit land to Opp. Party No. 3 - Therefore parties to the Arbitration agreement by their own overt action already created third party right, then in that case the dispute involving a third party would not be an arbitral dispute - Impugned order passed by Court below is set aside - Order accordingly.

JUDGMENT

A.C. Upadhyay, J.

1. This is an appeal under Section 37(1)(a) of the Arbitration and Conciliation Act, 1996, challenging the judgment and order dated 08.10.2012, passed by the Additional District Judge, No. 1, Kamrup, in Misc. (Arb) Case No. 366/2012, under Section 9 of the Arbitration and Conciliation Act, 1996, whereby direction was issued to the parties in litigation to maintain Status-quo in respect of the suit land in question, described in Schedule-C of the petition. Brief facts of the case is that the appellant is a Private Limited Company under the Companies Act, 1956, having its registered office at C-2054, A Sushant Lok-1, Gurgaon, Haryana, and being represented by its Director Sri Pradeep Harlalka. Whereas Respondent No. 2 and other respondents are joint owners of different plots of land including the suit land and Respondent No. 3 is a resident of Boko, in the district of Kamrup. On mutual arrangement, the Respondent No. 2 and the other respondents are occupying different plots of land and utilizing their share of land for their own purpose.

2. The Respondent No. 2 for proper management, control and supervision of his share of land and also to develop his share of land described in the Schedule-A, appointed Respondent No. 3 as his lawful attorney by executing Deed No. 1259/11 dated 19.4.11 for doing the acts and deeds mentioned in the Irrevocable Power of Attorney, in favour of the Respondent No. 3. Apart from that the said Irrevocable Power of Attorney, the Respondent No. 2 earlier executed another registered Power of Attorney being Deed No. 221/11 (corrected as 94/11 dated 10.01.11), in favour of the Respondent No. 3.

3. By the said Power of Attorney, the Respondent No. 2 had given power to Respondent No. 3 to sell the plot of land mentioned in the Schedule of the said Power of Attorney and to receive consideration of such sale. By the said Power of Attorney, the Respondent No. 2 gave power to Respondent No. 3 to apply for permission for such sell and after obtaining of such permission from the competent authority to receive sale price and to deliver possession of the land to the purchaser.

4. That on the strength of the said registered Power of Attorney being Deed No. 221/11 dated 10.01.11, the Respondent No. 3 on behalf of the Respondent No. 2 entered into an agreement with the appellant for sale of land measuring 36 Bighas 3 Kathas 2 Lechas covered by different Dag Nos. and Patta Nos., for total consideration of Rs. 1,80,00,000/- and the said agreement for sale was registered as Deed No. 897/11 dated 1.2.11. However, the Respondent No. 2 revoked the Power of Attorney on 13.6.2011, executed in favour of Respondent No. 3 being Deed No. 94/11 dated 10.1.11 and Deed No. 1259/11 dated 19.4.11, which was earlier executed in favour of Respondent No. 3 on 16.6.2011, a suit was filed by Respondent No. 3 against the Respondent No. 2 for declaration and permanent injunction in respect of the revocation of Power of Attorney dated 10.1.2011. The suit was numbered as Title Suit No. 174/2011. However, the Respondent No. 3 sought to withdraw the suit on the ground of amicable settlement of the dispute without seeking any liberty. Subsequently on 6.9.2011, the agreement for sale, which is the bone of contention, executed by and between the Respondent No. 1 and Respondent No. 3 was also formally cancelled by mutually signing the deed of cancellation. In the meantime Respondent No. 1 filed a suit against the Respondent No. 2 to 6 seeking specific performance of the contract for sale and other consequential relief. The Respondent No. 2 in a suit being T.S. No. 342/11, had taken the plea that there was an arbitration clause in the agreement for sale and as such the matter should be referred to the Arbitrator as per Arbitration Clause and accordingly the learned Civil Judge No. 3 disposed of the title suit directing the parties to appear before the Arbitrator to settle their dispute. In the meantime, the respondents already sol






















































































































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