Back
1998 Supreme(MP) 588
1999 (1) JLJ 106
D.M. Dharmadhikari, J.
Nepa Limited v. Manoj Kumar Agarwal
Misc. Appeal No. 26 of 1998; against the order passed by Addl. District Judge, Burhanpur, in Civil Suit No.7 of 1997.
Abhay Sapre for the appellant; Ravindra Shrivastava with P. Diwakar. for respondent.
Headnote:(1) Arbitration and Conciliation Act, 1996 -- Ss. 9, 11 (10) and 2 (e) -approach for taking interim measures -- Court as defined under S. 2 (e) alone has jurisdiction to act under S. 9. -- S. 11 or scheme framed under S. 11 (10) or valuation of subject matter has no application. MCC 1183/97 relied on. [Para 13
(2) Arbitration and Conciliation Act, 1996 -- S. 9 -- Specific Relief Act. 1963 -- Ss. 14 (1) (c) and 41 (e) -- interim injunction under S. 9 of 1996 Act --provisions under the Act of 1963 are not applicable -- injunction issued to safeguard the interest of contractor based on sound principles -- cannot be questioned. AIR 1985 All. 265, AIR 1982 Guj. 289 and AIR 1986 Ori. 22 referred to. [Para 14 to 17
(3) Arbitration and Conciliation Act, 1996 -- Ss. 38 and 9 -- interim order to protect interest of contractor passed under S. 9 -- no interference in appeal can be made. 1990 (Supp) SCC 727 and (1996) 5 SCC 714 followed. [Para 15 &17
¼1½ ek/;LFke~ vkSj lqyg vf/kfu;e] 1996 && /kkjk 9] 11 ¼10½ rFkk 2¼³½ && varfje mik; fd, tkus ds fy, vfHkxe && ,d ek= 2¼³½ && ;Fkk ifjHkkf"kr dks gh /kkjk 9 ds v/khu dkjokbZ dh vf/kdkfjrk gS && /kkjk 11 vFkok /kkjk 11¼10½ ds v/khu fojfpr Ldhe ;k fo"k;oLrq dk ewY;kadu ykxw ugha gksrsA izØh.kZ flfoy ekeyk Ø- 1183@97 voyafcrA ¿ iSjk 13À
¼2½ ek/;LFke~ vkSj lqyg vf/kfu;e] 1996 && /kkjk 9 fofufnZ"V vuqrks"k vf/kfu;e] 1963 && 14 ¼1½¼x½ rFkk 41 ¼³½ && 1996 ds vf/kfu;e dh /kkjk 9 ds v/khu varfje O;kns‘k && 1963 ds vf/kfu;e ds mica/k ykxw ugha gS && lafonkdkj ds fgr ds j{kksik; esa tkjh O;kns‘k lgh fl)karksa ij vk/kkfjr && iz‘uxr ugha fd;k tk ldrkA , vkb vkj 1985 bykgkckn 265] , vkb vkj 1982 xqtjkr 289 rFkk , vkb vkj 1986 mM+hlk 22 fufnZ"VA ¿ iSjk 14 ls 17À
¼3½ ek/;LFke~ vkSj lqyg vf/kfu;e] 1996 && /kkjk 38 rFkk 9 && /kkjk 9 ds v/khu lafonkdkj ds fgr ds j{kksik; esa ikfjr varfje vkns‘k && vihy esa gLr{ksi ugha fd;k tk ldrkA 1990 ¼lIyh-½ ,l lh lh 727 rFkk ¼1996½ 5 ,l lh lh 714 vuqlfjrA
¿ iSjk 15 ls 17À
Dharmadhikari, J.-- (1) A common order is being passed in this appeal and the connected appeal between the same parties registered as MA No. 37/98.
2. Both the appeals arise out of two orders passed on 3.5.1997 and 24.2.1997 by Additional District Judge, Burhanpur in proceedings under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter) shortly referred to as 'the Act of 1996').
3. The facts leading to raising of an arbitration dispute and institution of proceedings under Section 9 of the Act of 1996 are as under :-
The Nepa Limited invited tenders in April 1996 for sale of coal ash. The respondent Manoj Agrawal submitted his tender. The offer was accepted and agreement was executed between the parties on 25.10.96.
4. According to the case of the respondent Manoj Agrawal (hereinafter referred to as 'the contractor'), contrary to clause 4.1 of the contract, the company sent a letter on 28.2.1997 to the contractor compelling him to lift straight-away lump sum quantity of 10,000 M. Ts. on payment of full price.. It 'was also threatened that if the quantity was not lifted, it would be disposed of to third parties. The action of the company led to exchange of legal notices between the parties. Ultimately, on 17.4.97, the contractor approached the Civil Court under Section 9 of the Act of 1996 seeking directions in the nature of injunctions and for preservation of the subject matter in dispute. Section 9. of the Act of 1996 empowers the Court to take interim measures including, if necessary, of issuing orders of injunction and appointment of receiver for preservation, interim custody or sale of any goods which are subject matter of the arbitration agreement. The provisions also empower the Court to secure any amount in dispute in the arbitration. Section 9 of the Act deserves to be quoted:--
"9. Interim measures by Court --
A party may. before or during arbitral award but before it is enforced in accordance with Section 36, apply to a Court –
(i) for the appointment of a guardian for a minor or a person of unsound mind for the purpose of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely –
(a) the preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party or authorising any samples to be taken or any observation to be made. or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the Court to be just and convenient,
and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceeding before it"
5. On the application under Section 9 filed by the contractor, the Court by the Impugned order dated 3.5.97 directed the company to preserve the contracted quantity of coal ash and for the purpose directed the representatives of the parties to measure quantity at the spot The above order of the Court is under challenge at the instance of the company in M.A. No. 26/98. According to the contractor's case, no proper measurement of the quantity of coal ash as made by the company and, therefore, the contractor requested for taking up conciliation proceedings for settlement of disputes. The company rejected that prayer. The contractor. therefore, made a request for referring the disputes between the parties to arbitration. The contractor made the second application under Section 9 of the Act of 1996 on 26.6.1997 seeking dire
