Calcutta High Court
Usha Martin Limited vs Al Sifah Minirals Private Limited on 25 September, 2024
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
ODC-5
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
[Commercial Division]
AP-COM/809/2024
USHA MARTIN LIMITED
VS
AL SIFAH MINIRALS PRIVATE LIMITED
BEFORE:
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
Date : 25th September, 2024
Appearance:
Mr. Chayan Gupta, Adv.
Mr. Souvik Kundu, Adv.
...for petitioner.
Mr. Chunky Agarwal, Adv.
Ms. S. Bhowmick, Adv.
...for respondent.
The Court:- An interesting question has arisen in the present case. The
present application is one under Section 9 of the Arbitration Conciliation Act
1996. The matter emanates from an arbitral proceeding which is still ongoing
before the tribunal. An interim award was passed in favour of the present
petitioner. The present application seeks the awarded amount to be secured.
At this juncture, on a query from Court as to whether the bar of Section
9(3) would apply, learned Counsel for the petitioner cites an unreported
judgment of a coordinate Bench in AP/1072/2017, where during pendency of
the arbitral proceeding, an application under Section 9 was entertained.
However, learned Counsel for the petitioner, in his usual fairness, submits
that the learned Single Judge himself proceeded on the premise that the
provisions of the 1996 Act prior to its amendment by the Act 3 of 2016, with
effect from October 23, 2015, would be applicable, thereby obviating the
applicability of the amended sub-Section (3) of section 9.
It transpires from the tenor of sub-section (3) that it has been introduced
by way of an exception and/or circumscription of sub-section (1) of Section 9.
Although Section 9(1) provides that an application under section 9 is
maintainable at any time before or during arbitral proceedings or at any time
after making of the award but before it is enforced, the same is curtailed by the
rider stipulated in sub-section (3), which provides that 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.
Such a bar, however, is not applicable to an execution application under
Section 36 even in respect of an interim award, which, under the 1996 Act, is
included within the definition of "award".
Insofar as a Section 9 application is concerned, since the arbitral
proceeding is still going on, and the present application is not one for
enforcement of the interim award, the rigour of sub-section (3) of Section 9
would ordinarily apply.
However, the only exception would be if the petitioner succeeds in
impressing upon the court that the remedy under Section 17 of the 1996 Act
before the arbitral tribunal is not equally efficacious.
Learned Counsel for the petitioner hints at such a suggestion, since two
applications are pending at the behest of the respondent before the learned
arbitrator. The first application is under Section 16 of the 1996 Act challenging
the very jurisdiction of the arbitral tribunal and the second seeks impoundment
of the agreement on which the petitioner bases its claim, both of which
applications might be reasonably apprehended to stall the hearing of a Section
17 application, even if filed.
At this juncture, learned Counsel having instruction to appear for the
respondent seeks some time to be furnished with a Vakalatnama and to prepare
himself in the matter. It is alleged by learned Counsel that till date no copy of the
interim award has been served upon the respondent by the Arbitrator.
Learned Counsel for the petitioner submits that they have served such a
copy. However, learned Counsel having instruction to appear for the respondent
contends that it is the statutory duty of the Arbitrator also to serve a copy.
Be that as it may, delay might defeat the very purpose of the present
application. A hearing is required first to ascertain whether the remedy before
the arbitral tribunal under Section 17 is equally efficacious on the points as
indicated above.
In view of the adjournment sought by the respondent but keeping in mind
the urgency involved, the matter is adjourned for a day only and shall be taken
up tomorrow under the same heading when learned Counsel having instruction
to appear for the respondent is requested to come prepared to contest the matter.
(SABYASACHI BHATTACHARYYA, J.)
SK.
