Home Care Retail Marts Private ... vs Haresh N. Sanghavi
2016 Latest Caselaw 2226 Bom

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                                                                       907 appl 849.15 os.doc


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                               
                            APPEAL (L) NO.849 OF 2015




                                                       
                                        IN
                       ARBITRATION PETITION NO.715 OF 2014

    Home Care Retail Marts




                                                      
    Private Limited                          ..... Appellant (Original Petitioner)
          V/s
    Haresh N. Sanghavi                      ..... Respondent




                                           
    Mr. Rajiv Kumar, Senior Advocate a/w Mr. K.G. Munshi, Ms. Shivani
    Khanna i/b M/s. FZB & Associates for Appellant (Original Petitioner) in
                                 
    Appeal and Notice of Motion.
    Mr. S.U. Kamdar, Senior Advocate a/w Mr. Y.M. Chaudhari i/b Mr. Omkar
    Kulkarni for Respondent.
                                
                             CORAM                 :   ANOOP V. MOHTA &
                                                       A.A. SAYED, JJ.

                             RESERVED ON           : 26 APRIL 2016
                             PROUNOUNCED ON        : 04 MAY 2016
   



    JUDGMENT:- (PER A.A. SAYED, J.)





    1       The above Appeal is filed under section 37 of the Arbitration and

Conciliation Act, 1996 (hereinafter referred to as 'the Arbitration Act')

challenging the orders dated 28 July 2015 and 23 October 2015 passed

by the learned Single Judge in Arbitration Petition No.715 of 2014 filed

under section 34 of the Arbitration Act. The impugned order dated 28 July

2015 reads as follows:

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". Admit. Learned counsel appearing for the respondent

waives service.

2. Affidavit-in-reply, if any, shall be filed within four weeks

from today. Rejoinder, if any, shall be filed within two weeks from the date of service of affidavit-in-reply. Parties are at liberty to file compilation of documents within eight weeks

from today. Hearing of the petition is expedited.

3. In view of the learned arbitrator having rendered a final award rejecting the claims made by the petitioner herein, the

interim order passed by the learned arbitrator under Section

17 of the Arbitration Act duly modified by the Supreme Court stands vacated."

2 The aforesaid impugned order dated 28 July 2015 was corrected

upon an Application by the Applicant for speaking to the minutes, by the

order dated 23 October 2015 which reads as follows:

"Matter is placed on board for speaking to the minutes of the order dated 28th July, 2015. In paragraph (3) of the

order, it is clarified that in view of the learned arbitrator having rendered a final award rejecting the claims made by the petitioner herein, the interim order passed by the learned arbitrator under section 17 of the Arbitration Act duly

modified by this court by an order dated 11th November, 2011 and further modified by the Supreme Court by an order dated 30th January, 2012 has come to an end. Order dated 28th July, 2015 stands corrected accordingly."

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3 Learned Senior Counsel for the Respondent raised a preliminary

objection and submitted that the Appeal is not maintainable and

therefore, the Appeal ought not to be entertained and is required to be

dismissed. He submitted that no Appeal lies against an order under

section 34 of the Arbitration Act where such order does not set aside or

refuses to set aside the Award. The learned Senior Counsel contended

that the impugned orders do not set aside or refuse to set aside the

Award, hence, the Appeal is not maintainable.

4 Learned Senior Counsel for the Appellant on the other hand

submitted that the impugned orders passed by the learned Single Judge

are in the nature of refusing to grant any measure under section 9 of the

Arbitration Act, therefore, the Appeal would be maintainable. The learned

Senior Counsel submitted that the scope of proceedings under section

34 of Arbitration Act is limited. However, the observations/directions in

the impugned orders have the effect of discharging the Court Receiver,

thereby leaving the property in question is unprotected. He submitted

that the impugned orders are contrary to the order of the Supreme Court

dated 12 January 2012 continuing the Court Receiver for five years in

respect of the premises in question.

5 Section 37 of the Arbitration Act reads as follows:

"37. Appealable orders.- (1) An appeal shall lie from the following orders (and from no others) to the Court authorised

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by law to hear appeals from original decrees of the Court

passing the order, namely:---

(a) granting or refusing to grant any measure

under section 9;

(b) setting aside or refusing to set aside an arbitral award under section 34.

(2) An appeal shall also lie to a Court from an order of the arbitral tribunal-

(a) accepting the plea referred to in sub-section (2)

or sub-section (3) of section 16; or

(b)

granting or refusing to grant an interim measure under section 17.

(3) No second appeal shall lie from an order passed in

appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court."

6 The impugned orders have been passed in a Petition under

section 34 of the Arbitration Act. The impugned orders neither set aside

nor refuse to set aside the Award. In these circumstance, in our view, the

Appeal against the impugned orders would not be maintainable as the

impugned orders passed by the learned Single Judge do not come with

the purview of the appealable orders under section 37 of the Arbitration

Act. The Appeal being creature of statute, even if the Appellant is

impugned by any directions in the impugned orders that would not give a

right to the Appellant to file an Appeal as contemplated under section 37

of the Arbitration Act.

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7 Even otherwise, we find that the Appeal cannot be entertained for

reasons stated hereinafter. The Appellant is essentially aggrieved by the

observations in the impugned order dated 28 July 2015 and impugned

order dated 23 October 2015 which according to the Appellant have the

effect of discharging the Court Receiver in respect of the premises in

question and the said premises are left unprotected. Pertinently, the

Appellant had filed an Arbitration Petition under section 9 of the

Arbitration Act being Arbitration Petition (L) No.1642 of 2015 interalia

seeking the relief of appointment of Court Receiver and the Appellant in

the said Arbitration Petition has made a reference to the very order dated

28 July 2015 which is impugned in this Petition. In paragraph 11 of the

Petition while making reference to the impugned order dated 28 July

2015, the Appellant has stated thus:

"The Petitioner submits that interim relief granted by order dated 30th January 2012, and vacated by order dated 28 July,

2015 needs to be continued and relief as prayed for in this Petition needs to be granted .... .... .... ...."

(emphasis supplied)

8 The aforesaid Arbitration Petition (L) No.1642 of 2015 under

section 9 of the Arbitration Act was dismissed by the learned Single

Judge vide order dated 21 August 2015 relying upon judgment of the

Division Bench of this Court in the case of Dirk India Private Limited vs.

Maharashtra State Electricity Generation Company, 2013 (DGLS) (AHC)

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4364. The Appellant thereafter challenged the order of the learned Single

Judge dated 21 August 2015 by preferring Appeal (L) No.701 of 2011

before the Division Bench of this Court which Appeal came to be

dismissed on 23 September 2015. The Division Bench observed that the

ratio in Dirk's case raises debatable issue. The Division Bench however

further observed that since identical issue in Dirk's case was under

consideration before the Apex Court, it did not entertain the Appeal and

accordingly dismissed the said Appeal.

9 The Appellant thereafter, preferred Special Leave Petition being

SLP No.29972 of 2015 against the order of the Division Bench dated 23

September 2015 which has been admitted by an order dated 7

December 2015 and has been tagged alongwith the SLP pending from

the order passed by the Division Bench of this Court in Dirk's case as

questions of law arising in both matters were identical. The order dated

7 December 2015 of the Supreme Court reads as follows:

"Heard Mr. Kapil Sibal, learned Senior counsel appearing for the petitioner and Mr. Jaideep Gupta, learned

Senior counsel appearing for the sole respondent.

Issue notice.

Mr. P.N. Puri, learned Advocate-on-Record who is on caveat accepts and waives formal notice.

This Special Leave Petition be tagged with Special Leave Petition (Civil) No.13688 of 2013 which is pending before this Court.

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Any action being taken by any party in the matter shall

abide by the final result of this Special Leave Petition."

10 In the circumstance, the Appellant having failed to secure the relief

in Arbitration Petition (L) No.1642 of 2015 under section 9 of the

Arbitration Act interalia for appointment/continuation of Court Receiver

after adverting to and making a grievance that the interim relief of

appointment of Court Receiver stands vacated by the order dated 28

July 2015 (which is impugned in the present Appeal) and the co-ordinate

Division Bench of this Court having not entertained the Appeal of the

Appellant and further that the issue is still at large before the Supreme

Court in SLP No.29972 of 2015 and no reliefs have been granted to the

Appellant in the said SLP, it would not be appropriate for us to entertain

the present Appeal when in essence what the Appellant is seeking is the

continuation of the Court Receiver, which is the subject matter of the said

SLP No.29972 of 2015 before the Supreme Court. Prima facie, we do

find some substance in the submission of the Appellant that the

observations contained in the impugned order dated 28 July 2015 has

the effect of discharging the Court Receiver which Court Receiver has

been continued by the Supreme Court for a period of 5 years by order

dated 30 January 2012 in Civil Appeal No.1136 of 2012. The said Civil

Appeal No.1136 of 2012 before the Supreme Court arose from an

Application under section 17 of the Arbitration Act wherein interim reliefs

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were refused by an order dated 16 August 2011 by the learned Arbitrator

against which Arbitration Appeal No.23 of 2011 was filed before learned

Single Judge under section 37 of the Arbitration Act. The learned Single

Judge was interalia pleased to appoint a Court Receiver in respect of the

property in question for a period of 3 years. Since there is no intra-court

second Appeal is provided from proceedings under section 17 of the

Arbitration Act, the aforesaid Civil Appeal No.1136 of 2012 was filed by

the Appellant before the Supreme Court which modified the order of the

learned Single Judge by continuing the Court Receiver for a period of 5

years. The order dated 30 January 2012 of the Supreme Court reads as

follows:

"Leave granted.

2 Heard Dr. Abhishek Manu Singhvi, learned senior

counsel for the appellant, and Mr. Mukul Rohtagi, learned senior counsel for the respondent.

           3        The Appeal is disposed of as follows:-





            (i)     In para 12(i) of the impugned order, 'three years' shall
                    stand substituted by 'five years'.
           (ii)     In so far as para 12(ii) of the impugned order is

concerned, it is directed that the Court Receiver shall appoint the present appellant - Haresh N. Sanghavi - as his agent.

(iii) The appellant shall be at liberty to give the subject property on leave and license basis immediately and the rent/licence fee shall be received by him as agent for which account shall be kept by him.

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4 With the above modification, the impugned order is

confirmed.

5 The arbitrator is required to adjudicate the dispute and

pass award as early as may be possible and preferably by the end of July, 2012."

We however note that the Appellant is not remediless as the Appellant

can always take recourse to filing proceedings before the Supreme Court

as contemplated under section 37(3) of the Arbitration Act.

11 For the aforesaid reasons, the Appeal is dismissed as not

maintainable. There shall be no order as to costs. We clarify that we

have not expressed any opinion on merits of the case.

                         (A.A. SAYED, J.)                    (ANOOP V. MOHTA, J.)





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