Indiabulls Financial Services ... vs M/S Jubilee Plots And Housing ...
2009 Latest Caselaw 3234 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  OMP.Nos. 452/2009 and 453/2009

%                               Date of decision: 18th August, 2009

INDIABULLS FINANCIAL SERVICES LTD ...Petitioner
                            Through: Mr. Rishi Agrawala, Advocate

                                     Versus

M/S JUBILEE PLOTS AND HOUSING                             ... Respondents
PRIVATE LTD & ORS
                            Through: None.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?

2.    To be referred to the reporter or not?

3.    Whether the judgment should be reported
      in the Digest?


RAJIV SAHAI ENDLAW, J.

1. Both these petitions under Section 9 of the Arbitration and

Conciliation Act 1996 seek interim measures as already granted to

the petitioner by the arbitral tribunal, on applications of the

petitioner under Section 17 of the Act. The arbitral tribunal vide

order dated 31st July, 2009 in arbitration case which is the subject

matter of OMP.No.453/2009 restrained the respondents from selling,

alienating, parting with possession of or creating third party interest

in the immovable properties situated in Kancheepuram District,

Chennai. On similar relief being claimed from the arbitral tribunal in

the other arbitration case, which is the subject matter of

OMP.No.452/2009, the arbitral tribunal vide order dated 31st July,

2009 held that since the respondents had already been restrained as

aforesaid and which restraint would cover the claims subject matter

of this arbitration case also, no separate order of injunction was

required to be issued.

2. The petitioner has preferred these petitions contending that

since as per the judgment of the Supreme court in MD, Army

Welfare Housing Organisation Vs Sumangal Services (P) Ltd

2004(9) SCC 619, the orders under Section 17 of the Act are

unenforceable, the same orders be passed by this court also in

exercise of powers under Section 9 of the Act.

3. The petitions came up for admission before this court on 10th

August, 2009. On that date the counsel for the petitioner was

informed that this court had reserved order in another matter on the

same legal issues.

4. Today vide orders passed in Shri Krishan Vs Anand OMP

597/2008 it has been held that the orders of the arbitral tribunal

under Section 17 of the Act are enforceable under Section 27(5) of

the Act and that party which has elected to apply for the relief under

Section 17 of the Act is thereafter not entitled to seek the same relief

from the court under Section 9 of the Act. It is not deemed

expedient to repeat the detailed reasoning in this order.

5. Suffice it is to state that since the orders already obtained by

the petitioner from the arbitral tribunal under Section 17 of the Act

are enforceable, these petitions are not maintainable.

6. Before parting with the cases it is also necessary to deal with

the aspect of territorial jurisdiction since relief with respect to the

properties outside the territorial jurisdiction of this court is claimed.

The petitioner has in the petitions stated that this court has

territorial jurisdiction, since a part of the cause of action has arisen

within the territorial jurisdiction of this court and further since the

parties had agreed to the exclusive jurisdiction of this court. It is

clarified that neither any documents in this regard are filed

alongwith the petitions nor has this court expressed any view in this

regard.

With the aforesaid observations, the petitions are disposed of.

RAJIV SAHAI ENDLAW (JUDGE) 18th August, 2009 M