IMPORTANT POINT
Broad principle, upon which the injunction is granted are also held to be applicable to the exercise of the power to make interim measure conferred by Sec. 9 of the Arbitration Act.

S.C. Dharmadhikari, J.—Admit. Respondent No.1 waives service. By consent of parties, taken up for hearing forthwith.

2. Mr. Devitre, learned Senior Counsel appearing for the Appellant states that other Respondents are duly served. However, for the limited purposes of this Appeal, I do not see that their presence is necessary. There would be no prejudice caused to them if the Appeal is decided in their absence as the contesting parties, are before the Court.

3. This Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 challenges an order passed by the learned District Judge, Pune dated 1st April 2009 on an Application (Exhibit 30) in Arbitration Petition No.215 of 2009.

4. Counsel appearing for parties are agreed that the effect of the order is that an ad-interim relief prayed by the First Respondent has been granted by the Court below and that is how the instant Appeal is maintainable. The Appeal questions continuation of an ex parte and interim order made under Section 9 of the Arbitration Act and refusal of the Trial Court to vacate it on the ground that the same is in breach of the principles enshrined under Order XXXIX. Rule 3 of Civil Procedure Code. For the purpose of this Appeal. I need not go into the larger issue as to whether all Appeal would lie under this provision against the order of the present nature otherwise. That is a matter left upon for being considered in an appropriate case.

5. It is not in dispute in the present Appeal that the First Respondent had moved the Court below by filing a Petition under Section 9 of the Arbitration and Conciliation Act, the First Respondent applied for interim measures and more particularly that pending the arbitration proceedings and till the making and implementation of the award therein. the First Respondent - Appellant before me be directed to deposit a sum of Rs. 48.50 crores being the aggregate payments made along with interest calculated at 15% p.a. as more particularly stated in prayers a(i) of a( iv). It was prayed inter alia that pending the arbitration proceedings and till the making and implementation of the award the Court below be pleased to pass an order of injunction restraining the Respondents to the Arbitration Petition (which include the Appellant before me) from dealing with, disposing off, alienating, encumbering, constructing, and/or creating any third party right in any manner whatsoever in respect of the Suit property or any part thereof. This application/petitioner was made on 19th February, 2009. Therein, a distinct application for interim reliefs was made and the same interim measures have been prayed for.

6. Upon this application, the First Respondent applied for an ex parte injunction against the Appellants and others restraining them from creating any third party interest or dealing with or disposing off the Suit property in any manner whatsoever.

7. It is not in dispute that the application was moved for ad interim ex parte, injunction. Admittedly, no notice of this application was served on the Appellants and other Respondents to the main Petition. The learned Judge heard the Advocate appearing for the First Respondent and by an order dated 6th March, 2009 granted the following relief:-

“The Respondents are hereby restrained of creating any 3rd party interest in the suit property and also from inducting any 3rd person in the suit property. Issued show cause notice to the Respondents as to why the ad-interim relief granted to the petitioner should not be confirmed. The notice R/o. 23-3-2009.”

8. The reasoning based upon which the learned Judge concluded that if notice is given to the Respondent that is the Appellant before mc prior to passing off the order or injunction, is of the possibility is that the parties may create third party rights and then the loss that would be caused cannot be compensated in terms of money. The order to the extent of this reasoning reads thus:-

“Considering the prima facie material on r