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2010 Supreme(Ori) 70
2010 (I) OLR — 647
SANJU PANDA, J.
M/s. D.T.M. Construction (India) Ltd....Petitioner
Versus
Capt. P.K. Srivastava and another...Opp. Parties
W.P.(C) No.1486 of 2010
Decided on 11th February, 2010.
For Petitioner:M/s. S. K. Dash, A. K. Otta, S. Dash, B. P. Dhal and Mrs. A. Dalasamanta
For Opp.Parties:M/s. M. R. N. Sahoo, S. Sahoo, S. N. Sahoo, A.R. Dash, S. K. Nanda-I, K. S. Sahu and B. Mohapatra
Headnote:ARBITRATION AND CONCILIATION ACT, 1996 - Sec. 9 - Application under claiming interim relief - District Judge returned the application to present it before a proper Court at Mumbai taking into consideration a clause of the agreement - Writ - Section 9 of the Act can be invoked by a party, before, or during arbitral proceedings or at any time after the making of the arbitral award - The provision can be invoked before the award is enforced in accordance with Section 36 of the Act - In the present case the dredger is the subject matter and the dispute between the parties is the said dredger - Held, petitioner rightly invoked the jurisdiction of the Court of the learned District Judge for interim relief before the dispute is referred to arbitration - Direction issued.
The provision is made for an interim measure of protection in respect of any of the matters regarding preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agree¬ment, interim injunction, receiver, etc. The provision has been enacted in accordance with the principles underlying Rule 1 of Order 38 of the Civil Procedure Code. Therefore, before exercis¬ing the powers conferred by the said provision, a Court should be satisfied on two points. The first is that the plaintiff's cause of action is prima facie an unimpeachable one subject to his proving his allegations made in the plaint. The second one is that the Court should have reason to believe on adequate materi¬als that unless the jurisdiction is exercised there is a real danger that the defendant will remove himself from the Court. The Court is specifically empowered by this section to pass interim orders that may be deemed necessary. The Court is vested with powers to pass interim order to safeguard and protect the inter¬ests of the parties. However, there is nothing in the said sec¬tion to warrant the assumption that the well-established princi¬ples governing the grant of temporary injunction like prima facie case, balance of convenience and irreparable injury are not applicable to the exercise of power under the said section. The scope of the said section is only deals with the interim measure by the Court. Obviously it is not within the scope of the said section to enquire into the claim and the counter-claim made by both the parties in regard to the custody of the articles and for protection of it pending dispute between the parties in regard to them. (Para - 10)
JUDGMENT
S. PANDA, J. — In this writ application, the petitioner has challenged the order dated 13.1.2010 passed by the learned Dis¬trict Judge, Puri in ARBP Case No.56 of 2010 returning the peti¬tion filed by the petitioner under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) to present the same in a proper Court at Mumbai.
2. The facts of the case are as follows :
The petitioner is a construction Company which deals in projects relating to construction and dredging. Opposite party No.1 is a proprietor concern which deals in hiring of dredger and its accessories by procuring margin. Opposite party No.2 is a Company which used to let out dredgers. The Irrigation Department of the Government of Orissa issued a work-order in favour of the petitioner for dredging and distillation in the rivers connected with Chilika Lagoon in the district of Puri to protect the same. Hence, the petitioner-D.T.M. Construction (India) Ltd. approached opposite party No.1 for hiring of dredger and opposite party No.1 accepted the said proposal of the petitioner. He intimated that though the dredger belongs to opposite party No.2 from whom he (opposite party No.1) obtained the said dredger on hire basis, he can sub-let the same. The petitioner brought the dredger from Mumbai to river Makara. However, several defects were found in the dredger which were rectified by opposite party Nos.1 and 2. But the situation did not improve. The petitioner entered into an agreement with opposite party No.1 on 1.9.2008 regarding hiring of the dredger on good faith and with the belief that opposite party No.1 had correctly revealed the condition of the dredger. Opposite party No.2 gave a letter authorising opposite party No.1 to sub-let the dredger. As per the said agreement, the petitioner paid Rs.30,00,000/- (Rupees thirty lakhs) to opposite party No.1 and also paid another sum of Rs.10,00,000 (Rupees ten lakhs) in the month of July 2009. Regarding hiring charges, opposite party No.1 demanded more amount from the month of April, 2009 to June, 2009. To solve the dispute, a joint meeting was held with opposite party Nos.1 and 2 and opposite party No.1 also recom¬mended to reduce the hiring charges to opposite party No.2, but no fruitful purpose was served. Despite the fact that the dredger did not function at all for some months, opposite party No.2 informed opposite party No.1 by e-mail that the petitioner should pay minimum charges for the period from 14th February to 15th April, 2009. However, the petitioner paid sum of Rs.40,000 (Rupees forty thousand) out of the total dues of Rs.45,000/- irrespective of the fact that the dredger due to defects, did not work and also the petitioner spent Rs.71,74,451/- for repair of the said dredger. The petitioner had to arrange two more dredgers to complete the job in time as the dredger obtained from opposite party No.1 did not work. Since dispute arose between the parties and the opposite parties tried to take away the dredger without settling the dues, finding no other way, the petitioner filed an application under Section 9 of the Act before the learned Dis¬trict Judge, Puri which was registered as ARBP Case No.56 of 2010 claiming interim relief to restrain the opposite parties from taking away the dredger on the ground that if the dredger will be taken away, the petitioner will sustain further loss and injury and the balance of convenience is in favour of the petitioner. The learned District Judge issued notice to the opposite parties and also passed an interim order protecting the petitioner. After appearance of the opposite parties, the learned District Judge heard the matter on the question of maintainability of the appli¬cation and by the impugned order, he held that the Court has no jurisdiction to decide the said application and directed to take back the petition to present before a proper Court at Mumbai and also vacated the interim order.
3. Learned counsel for the pe
