Back
2012 Supreme(Online)(KER) 11408
HIGH COURT OF KERALA
K.HEMA, P.S.GOPINATHAN, JJ
K.G.RATHISH KUMAR – Appellant
Versus
M/S.NPR FINANCE LTD. – Respondent
Arb.A 52 2009
SRI.V.PHILIP MATHEW, SRI.S.SREEKUMAR (SR.), SRI.P.PRIJITH, SRI.ANEESH JAMES, SRI.P.MARTIN JOSE
An order under the Arbitration and Conciliation Act must be reasoned and address contested issues to be sustainable.
Headnote:
Arbitration - Arbitration and Conciliation Act - Section 9, Section 17 - The court found the impugned order making the interim attachment absolute was non-speaking and thus unsustainable, allowing the respondent to seek interim relief through the Arbitral Tribunal.
Fact of the Case:
The respondent filed an arbitration petition under Section 9 of the Arbitration and Conciliation Act for the attachment of the appellants' properties as an interim measure. The Additional District Court passed an order making the attachment absolute, which was appealed by the appellants.
Finding of the Court:
The court found the order was non-speaking and did not adequately address the objections raised by the appellants regarding the validity of the agreement and their liability. The lack of reasoning in the lower court's order rendered it unsustainable.
Issues: The primary issue was whether the Additional District Court's order making the attachment absolute was valid given it did not provide reasons and failed to address contested facts.
Ratio Decidendi: The court held that an order must be a speaking one to be sustainable, thereby recognizing the need for a reasoned approach in judicial decisions.
Final Decision: The impugned order was set aside, allowing for potential relief through the Arbitral Tribunal under Section 17.
J U D G M E N T
Hema,J.
The respondent herein moved an arbitration petition before the Additional District Court under Section 9 of the Arbitration and Conciliation Act, 1996 for attachment of immovable properties belonging to appellants as an interim measure. The Additional District Court passed an order of interim attachment and thereafter as per the impugned order, the attachment was made absolute. This appeal is filed against the final order in the arbitration petition.
2. Heard both sides. At the very outset, learned counsel for appellant submitted that the impugned order is illegal and not sustainable since it does not show any reason to make the attachment absolute. The only order passed while disposing of the arbitration petition finally is “ Attachment made absolute. Arbitration O.P. Closed”. Learned counsel for appellants submitted that validity of the agreement was challenged by him. Appellants also disputed the liability under the alleged arbitral agreement as well as the original agreement. But none of these contentions were looked into by the court and no findings are entered into by the court below on disputed facts.
3. We are satisfied that the impugned order is a non-
speaking one and hence it is unsustainable. Further, learned counsel for respondent submitted that even if the said order is set aside, the order of attachment may be allowed to continue for a particular or until respondent gets an order from the arbitrator. Admittedly, arbitration proceedings are initiated. Therefore, going by Section 17 of the Arbitration and Conciliation Act, 1996 any interim measure of protection afforded to a party by Arbitral Tribunal. The Tribunal may also require the party to provide appropriate security in connection with the measure ordered under (1) of the . Therefore, having initiated arbitral proceedings it is possible to obtain an order from the Arbitral Tribunal itself. 4. On hearing both sides and on considering the fact that parties shall not suffer by the mistake committed by the court in not passing a speaking order, we find that some interim measure has to be made to protect the interests of the parties. But we make it clear that we have not gone into the merit of the contentions. Since proceedings are initiated respondent, if so advised will be at liberty to move Arbitral Tribunal for any appropriate interim relief. Hence the following order is passed:
(1) The impugned order is set aside.
(2) Since the arbitration proceedings have been initiated, the aggrieved party is at liberty to get any interim measure of protection under Section 17 of the Arbitration and Conciliation Act, 1996 .
(3) Appellants are directed not to dispose of the property which is attached in the arbitration petition for a period of 20 days from today.
(4) Return the records forthwith to the court below.
This appeal is disposed of accordingly.
