Bombay High Court
Rameshkumar vs The Learned Principal District ... on 12 November, 2013
Bench: Z.A. Haq
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5720 of 2012.
PETITIONER: Rameshkumar s/o Nathmal Chordiya,
aged about 57 years, Occu: Business, R/o Ramesh
General Stores, near Janata College,
Warora Road, Chandrapur, Distt.Chandrapur.
: VERSUS :
RESPONDENTS: 1. The learned Principal District Judge,
Wardha, Distt.Wardha.
2. Kishorkumar s/o Nathmal Chordiya,
aged about 53 years, Occu: Business ,
R/o Pandurang Weard, Arvi, Tq.Arvi, Distt.Wardha.
3. Dilipkumar s/o Nathmal Chordiya,
aged about 57 years, Occu: Business,
R/o Walisaheb Ward, Main Road, Arvi,
Tq.Arvi, Distt. Wardha.
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Mr. Rohit Joshi, Advocate for the petitioner.
Mr. Kadu, AGP for the respondent no.1.
Mr. V.M.Deshpande, Advocate for respondent no.2.
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CORAM: Z. A. HAQ, J.
DATED: 12th NOVEMBER, 2013.
ORAL JUDGMENT (Per Z. A. Haq, J.)
1. Heard the learned Counsel for the parties.
2. Rule. Rule is made returnable forthwith.
3. The challenge is to the order passed by the learned
Principal District Judge allowing the application filed by the respondent
no.2 praying for stay of the proceeding till the decision of the Special
Civil Suit No.24 of 2012. It is the submission of the respondent no.2
that the father of the respondent no.2 has filed the Special Civil Suit
No. 24 of 2012 praying for confirming the partition in respect of the
property, which is the subject-matter in the arbitration proceedings, and
for setting aside the award.
4. The application filed by the respondent no.2 per se is not
maintainable. The respondent no.2 has not quoted the provisions
under which the application is made. At the time of argument,
perhaps, the jurisdiction of the Court was sought to be invoked under
Section 9 of the Arbitration and Conciliation Act, 1996 and under
Section 151 of the Civil Procedure Code.
5. Shri V. M. Deshpande, learned Advocate for respondent
no.2 has submitted that the father of the respondent no.2 was not party
to the arbitration proceedings and therefore, he could not have raised
any grievance in the proceedings going on before the District Court.
The submission is that the respondent no.2 was, therefore, constrained
to file the application. The learned counsel has further submitted that
the respondent no.2, being a party as defined under Section 2(h) of the
Arbitration and Conciliation Act, 1996, can invoke the jurisdiction of the
District Court under Section 9 of the Arbitration and Conciliation Act,
1996. Section 9 of the Arbitration and Conciliation Act, 1996 reads as
follows -
"9. Interim measures, etc., by Court.- 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 a 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,
ignamely:-
(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 authorizing for any of the aforesaid
purposes any person to enter upon any land or building
in the possession of any party, or authorizing 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."
6. Prayer made by the respondent no.2 in the application filed
before the District Court does not fit in any of the provisions of Section
9 of the Arbitration and Conciliation Act. It cannot be said that the
powers of the District Court under Section 9 of the Arbitration and
Conciliation Act, 1996 are invoked for interim measures as
contemplated by Section 9 of the Act.
7. Shri Deshpande, learned Advocate for the respondent no.2,
has further submitted that, in any case, the proceedings can be stayed
by the District Court under Section 151 of the Civil Procedure Code
exercising its inherent power. It is the settled law that if there is no
provision under the enactment, then the provisions of Section 151 of
the C.P.Code cannot be invoked to do indirectly what is not permitted
to be done directly. In view of the above, impugned order is
unsustainable in law. The impugned order is set aside and the
application filed by the respondent no.2 (Exh.23) is rejected. Rule is
made absolute in the above terms. In the circumstances, the parties
to bear their own costs.
JUDGE.
chute
