Section 41(b) of the Arbitration Act does not empower courts to grant interim relief before referral to arbitration proceedings.

1Alleging that without terminating the contract, and after the work has progressed to a substantial extent, the respondents entrusted the balance work to 'some other agency' (not specified) and that agency started work, the petitioner moved the lower court for interim injunction restraining the respondents, from altering, modifying or tampering with or destroying the work he has already done by themselves (the respondents) or through other agencies, till the Arbitrator inspects and measures the same. The contract mentioned above is a works contract for construction of a road and the culverts thereon, and contains an arbitration clause, but admittedly no dispute has been referred for arbitration, though according to the petitioner disputes have arisen between the parties -- this is denied by the respondents. The petitioner invoked S.41(b) of the Arbitration Act, 1940 and the provisions in clauses 1, 3 and 4 in the Second Schedule to that Act. The lower court said that no arbitration proceedings are pending and therefore S.41 is not of any avail to the petitioner. According to the learned counsel for the petitioner before the reference of the dispute or disputes, as the case may be for arbitration, and even before any dispute arises S.41(b) can be invoked by a party to an arbitration agreement. Whether this submission is right, is the question to be decided in this case.

2 S.41(b) confers on the court the same power of making orders in respect of the matters mentioned in the
Second Schedule to the Act as it has for the purpose of and in relation to any proceedings before the Court, for the purpose of and in relation to arbitration proceedings, but, as per the proviso thereto, without prejudice to any power vested in an arbitrator or umpire for making orders with respect to any of such matters. Whatever be the construction to be placed on the words 'for the purpose of and in relation to, arbitration proceedings' in S.41(b), whether, under that provision the Court is, as contended on behalf of the petitioner, in view of the words therein, 'for the purpose of arbitration proceedings', competent to pass any order even prior to the commencement of the reference, that is to say, before the parties refer their disputes for arbitration to the arbitrator, or not, (it is also contended that 'arbitration proceedings' commence from the time of the 'arbitration agreement' and this I will examine hereinafter in due course) clauses 1 and 3 in the Second Schedule limit the power of the Court to make orders only as regards 'goods which are the subject matter of the reference' (clause 1) and 'property or thing which is the subject matter of the reference or as to which any question may arise 'therein, i.e. in the reference (clause 3), and clause 2: only as regards 'the amount in difference in the reference; which a priori means that the orders contemplated by S.41(b) read with clauses 1 to 3 in the Second Schedule can be made only when there has been a reference of the dispute or disputes, as the case may be, for arbitration. Clause 4 in the Second Schedule read with S.41(b) confers on the Court the same power of making orders of 'interim injunction or appointment of receiver' as it has for the purpose of and in relation to any proceeding before it. In relation to a proceeding before it, the Court derives its power of issuing interim injunction and appointing a receiver from the provisions contained in S.94(c) and (d) of the code of Civil Procedure, 1908 and the said powers are to be exercised in accordance with R.1 to 5 in O.39 and Rules 1 to 5 in O.40 of that Code. S.94 of the Code enables the Court to make interlocutory orders some of which are specified and enumerated in clauses (a) and (d) as is clear from the residuary clause, clause (e) which says that the Court may, 'make such other interlocutory orders as may appear to the Court to be just and convenient'. An interlocutory order is an order made