IMPORTANT POINT
The Appellate Court has jurisdiction to set aside ex-parte orders under Section 37 of the Arbitration and Conciliation Act, 1996, especially when the contract in question is deemed determinable.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Mr. H. Gupta, the learned counsel appearing on behalf of the petitioner. Mr. K.P. Pathak appears on behalf of the respondent.

2. This is an application under Article 227 of the Constitution of India challenging the order dated 17.01.2025 passed by the learned Court of Additional District Judge No. 1, Kamrup (M), Guwahati (hereinafter referred to as “the learned Appellate Court) in Misc. Arbitration Appeal No. 01/2025 whereby the ad interim ex-parte order dated 03.01.2025 passed in Misc (Arbitration) No. 01/2025 by the learned Court of the Civil Judge (Senior Division) No.3, Kamrup (Metro) at Guwahati was set aside and quashed.

3. The question which arises in the instant proceedings is as to whether this Court should exercise its supervisory jurisdiction against an order passed by the learned Appellate Court who had exercised jurisdiction under Section 37 of the Arbitration and Conciliation Act, 1996 (for short, “the Act of 1996”). To ascertain the said, this Court would like to briefly deal with the facts leading to the filing of the instant proceedings.

4. The petitioner herein was awarded a contract by the respondent for “Construction of New 33/11 KV Sub-Stations, Construction of 33 KV and 11 KV Lines, 33 KV Terminal Equipments & 33 KV and 11 KV Crossings for Railways/River in Tinsukia Electrical Circle on a Turnkey Basis”. Pursuant thereto, a contract agreement was entered into by and between the petitioner as well as the respondent. The petitioner herein was issued a notice of termination on 15.10.2024 by invoking Clause 42 of the General Conditions of Contract (for short, “GCC”). In response thereto, the petitioner wrote a letter dated 21.10.2024 assuring that there would be significant progress within 3 to 4 months and the contract work would be completed within the agreed date for completion of the project. At this stage, it is relevant to take note of that the completion date was 20.02.2025. Be that as it may, on 23.12.2024, the respondent terminated the contract vide an order bearing No.58. The petitioner thereupon being aggrieved, by the termination order issued a letter dated 31.12.2024 requesting for Appointment of a Dispute Board in terms of Clause 45.1 of Section 7 of the GCC.

5. While the said referral to the Dispute Board was pending, the petitioner also preferred an application under Section 9 of the Act of 1996 seeking interim measures. The said application being taken up as a commercial litigation was endorsed to the learned Court of the Civil Judge (Senior Division) No. 3, Kamrup (M) at Guwahati (hereinafter referred to as “Section 9 Court”) and was registered and numbered as Misc. (Arbitration) Case No. 01/2025. At this stage, it is further relevant to mention that the application under Section 9 of the Act of 1996 was filed on 30.12.2024. The petitioner thereafter received an e-mail dated 02.01.2025 from the respondent regarding invocation and forfeiture of the Bank Guarantee submitted by the petitioner at the time of entering into the Contract Agreement. The said application under Section 9 of the Act of 1996 was moved on 03.01.2025. Be that as it may, the petitioner did neither amend the application filed under Section 9 of the Act of 1996 to insert the cause of action pertaining to the invocation of the Bank Guarantee nor did seek any interim measures in respect to the email dated 02.01.2025.

6. The learned Section 9 Court vide an order dated 03.01.2025 passed an ex- parte ad-interim injunction restraining the respondent herein, their men, agents from giving effect to the termination Order No. 58 dated 23.12.2024 till the next date. The next date was fixed on 17.02.2025.

7. The respondent thereupon preferred an Appeal under Section 37 of the Act of 1996 before the learned Court of the Additional District Judge No. 1, Kamrup (M) at Guwahati, which was registered and numbered as Misc. Arbitratio