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2022 Supreme(Online)(KER) 19557
HIGH COURT OF KERALA
C.S. DIAS, J
I.D.A. MALAPPURAM BRANCH
– Appellant
Versus
THE INDIAN DENTAL ASSOCIATION – Respondent
OP(C) 2141 2022
ALEX.M.SCARIA, G.SREEKUMAR (CHELUR), BEAS K. PONNAPPAN, A.J.RIYAS, SARITHA THOMAS, ALEN J. CHERUVIL, SAHL ABDUL KADER, SANJITH KUMAR R.
The court reinforced that interim measures under the Arbitration and Conciliation Act must follow prescribed procedures to protect parties' rights effectively.
Headnote:
Injunction - Arbitration - Arbitration and Conciliation Act, 1996 - Section 9 - The court emphasized the importance of adhering to the proper procedures as outlined in the Arbitration and Conciliation Act when granting interim measures and the implications of a failure to do so.
Fact of the Case:
The petitioner sought an interim injunction under Section 9 of the Arbitration and Conciliation Act, 1996 to prevent the respondents from inaugurating a specific dental association branch. The lower court granted an ad-interim injunction but later vacated it without addressing the petitioner's arguments.
Issues: Whether the procedure adopted by the lower court in vacating the ad-interim injunction was correct and justifiable.
Ratio Decidendi: The court held that a party's request for relief under Section 9 must be duly considered, and the absence of proper procedures infringes on the party's rights, necessitating intervention.
Final Decision: The original petition was allowed, and the lower court was directed to reconsider the original petition with urgency.
JUDGMENT
Aggrieved by Ext.P6 order passed in I.A. No.2/2022 in O.P(Arbitration) No.582/2022 by the Court of the Additional District Judge-III, Manjeri, the petitioner before the court below has filed the original petition. The respondents are the respondents before the court below.
2. The facts leading to Ext.P6 order, in a nut shell, are: the petitioner had filed the original petition under Section 9 of the Arbitration and Conciliation Act, 1996 (in short ‘Act’), seeking interim measures. Along with the original petition, the petitioner had filed I.A. No.2/2022 for an order of ad-interim injunction to restrain the respondents from conducting any inauguration or installation ceremony of Indian Dental Association, Tirur branch till 15.10.2022. The court below passed Ext.P3 ad-interim order of injunction as prayed for. Thereafter, one of the respondents appeared and filed Ext.P4 counter affidavit. The learned counsel for the petitioner filed Ext.P5 argument notes. The court below, without any valid reason or adverting to Ext.P5 argument notes, vacated Ext.P3 order by the impugned Ext.P6 order. The procedure adopted by the court below is improper, irregular and unsustainable in law. Hence, the original petition.
3. Heard; Sri.G.Sreekumar (Chelur), the learned counsel appearing for the petitioner and Sri.Shyam Padman, the learned counsel appearing for the respondents.
4. The question is whether the procedure adopted by the court below leading to Ext.P6 is correct and justifiable ?
5. Section 9 of the Arbitration and Conciliation Act, 1996 , reads as follows:-
9.Interim measures, etc., by Court.—
[(1)]A party may, before or during arbitral proceedings or at any time after the making of the 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 person of unsound mind for the purposes 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 proceedings before it. [(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.
(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious.]
6. A reading of the above provision undoubtedly demonstrates that, the court may, before, during and before the enforcement of the arbitral award, for the purpose of interim measures enumerated in Section 9 of the Act, pass an order of interim injunction.
7. Invoking sub-clause (ii) (d) of Sub Section (1) of Section 9 of the Act, the court below has passed Ext.P3 ad-interim order of injunction, on being satisfied that the petitioner has made out a prima facie case for an
