Delhi High Court
Kotak Mahindra Bank Limited vs Akbar Khan on 29 September, 2016
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 29, 2016
+ FAO 340/2016 & C.M.No.26446/2016
KOTAK MAHINDRA BANK LIMITED ..... Appellant
Through: Mr. Sanjeev Singh, Ms. Neerja
Sharma and Mr. Tanuj Agarwal,
Advocates
versus
AKBAR KHAN ..... Respondent
Through: Mr. Asad Iqbal, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In proceedings under Section 9 of the Arbitration and Conciliation
Act, 1996, trial court vide impugned order of 25th April, 2016 has allowed
the petition under Section 9 of the Arbitration and Conciliation Act, 1996
with direction to appellant herein to return the amount received from the
respondent/petitioner according to the insurance value of all the three
vehicles upon their repossession, after adjusting the amount due at the
relevant period within a period of two months. In the impugned order, it
is noted that copy of the Award passed by the Arbitrator has been already
placed on record.
FAO 340/2016 Page 1
At the hearing of this appeal, the precise submission of learned
counsel for appellant is that the directions issued in the impugned order
run contrary to the Award passed, which is erroneous on the face of it, in
view of Division Bench decision of this Court titled Nussli Switzerland
Ltd. v. Organizing Committee Commonwealth Games 2010,reported in
2014 SCC OnLine Del 4834. Learned counsel for appellant has apprised
this Court that the Award passed against appellant has been satisfied and
appellant has not received any notice of objections under Section 34 of
the Arbitration and Conciliation Act, 1996.
On the other hand, it is submitted by learned counsel for
respondent that the directions have been issued in view of the conduct of
appellant as noted in the impugned order, which is as under: -
".......However, despite repeated directions, the bank
has failed to return two vehicles which were repossessed by
the bank without any authority and orders of this court and
the bank officials in shadow of the orders of this court has
acted malafidely against the applicant Akbar Khan and
also repossessed other vehicles without any orders from
any court."
It is submitted by respondent's counsel that the alternate prayer
made by respondent-petitioner in petition under Section 9 of the
Arbitration and Conciliation Act, 1996 has been rightly allowed by trial
court. Lastly, it is submitted that the alternate prayer of mandatory
injunction with consequential relief, is justified in view of the conduct of
appellant as pointed out above.
Upon considering the submissions advanced by both the sides and
FAO 340/2016 Page 2
on perusal of impugned order, material on record and the decision cited, I
find that once an Award has been passed, then no direction to the contrary
while deciding petition under Section 9 of the Arbitration and
Conciliation Act, 1996 can be justified. Such a view is being taken in
view of the dictum of a Division Bench in Nussli Switzerland Ltd.
(supra), which is as under: -
"In view of the opinion expressed by us with reference
to Section 9 of the Arbitration and Conciliation Act, 1996,
the application filed by the respondent seeking an interim
measure post award was not maintainable and thus we do
not decide the second issue concerning the prima-facie
merits of the claim."
Otherwise also, Section 9 of the Arbitration and Conciliation Act,
1996 deals with interim measures only till the Award is enforced. This
Section 9 does not empower the court to pass any mandatory injunction
like the one, which has been passed in the impugned order. It remains
uncontroverted that the Award passed has been satisfied. In such a
situation, recourse to Section 9 of the aforesaid Act was totally
unwarranted. So far as the conduct of appellant, as noted in the impugned
order, is concerned, it shall be open to respondent to proceed against
appellant in accordance with law. But, it certainly does not justify passing
of mandatory injunction against appellant in proceedings under Section 9
of the Arbitration and Conciliation Act, 1996. During the course of
hearing, respondent's counsel was unable to confirm filing of any
objections under Section 34 of the Arbitration and Conciliation Act,
1996.
FAO 340/2016 Page 3
In the aforesaid view of the matter, impugned order is hereby set
aside and this appeal and the application are accordingly disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 29, 2016
s
FAO 340/2016 Page 4
