Point of Law: Pendency of proceedings in the writ petition are essentially in public domain.

ORDER :

1. The counsel for the respondent has not appeared apparently because he is abstaining from work pursuant to the call given by the office bearers of the Bar Association. Such non-appearance is clearly illegal and in breach of the order passed by Hon’ble Supreme Court in the case of Ex. Capt. Harish Uppal vs. Union of India and Another, 2003 (2) SCC 45.

2. Heard.

3. This appeal is directed against the order dated 26.04.2022 passed by the Commercial Court No. 1 Jodhpur by which the interim order dated 13.04.2022 pending decision of application under Section 9 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act’) filed by the appellants, has been discontinued.

4. The appellants moved an application under Section 9 of the Act before the Commercial Court seeking interim measures on the pleadings inter-alia that an award for specific performance of agreement between the parties has been passed by the sole Arbitrator on 31.07.2021. In the application, it was also stated that because of the pendency of PIL and in view of the conditions imposed in the award, the award could not be executed but in the meantime, the respondent is proceeding to dispose off/transfer the right, title or interest in respect of the property involved in the dispute between the parties.

5. The Commercial Court initially vide order dated 13.04.2022 passed the interim order restraining the respondent from selling or transferring any right, title or interest in respect of the property in dispute.

6. Later on, vide impugned order dated 26.04.2022, the interim order has not been continued though the application under Section 9 of the Act has remained pending for consideration. It is against this order that this appeal has been filed.

7. Learned counsel appearing for the appellants would argue that once there was an award passed in favour of the appellants, in terms of the agreement for sale of a floor, the appellants are entitled to appropriate interim relief so that the award is not frustrated. He would further submit that the order passed in the pending PIL in the High Court registered as D.B. Civil Writ Petition No. 19102/2018 does not allow the respondent to raise constructions beyond the 8th floor. Taking undue advantage of the order which was passed by the High Court on 23.02.2022, the respondent may proceed to dispose off by sale or otherwise constructed floors without there being any opportunity to the appellants to enforce the award.

8. On the other hand, the respondent in person would argue that the agreement for sale between the parties and the award are not in respect of other properties/floors than the one in respect of which the agreement was entered into and which the appellants may be entitled under the law by way of sale in execution of award for specific performance of contract. If an order is passed restraining the respondent, it will have adverse effect on the rights of other intending buyers, with whom the respondent has entered into agreement for sale upto 8th floor.

9. We have heard the parties and perused the records.

10. Undisputedly, the parties had entered into agreement for sale on 19th July, 2016. Amongst other conditions, the agreement stipulated under the Note that with consent of both parties floor number can be changed, but sale area will be same as per the agreement, remaining amount will be given at the time of execution of sale-deed.

11. On a PIL filed challenging the legality and validity of constructions raised by the respondent, initially a Division Bench of this Court passed an interim order dated 7th January, 2019 restraining the respondents from creating third party interest in any portion of the subject property. Thereafter, vide order dated 23.02.2022, the interim order dated 07.01.2019 was modified.

12. A dispute having arisen between the parties, arbitration proceedings were drawn, which eventually culminated in passing of award in favour of the appellants on 31.7.2021. As on that date the interim order dated 0