Madras High Court
M.Kalanidhi vs Mr.S.Kuppuraj on 27 August, 2021
O.A.No.99 of 2021 and
A.No.615 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.08.2021
CORAM
THE HON'BLE Mr. JUSTICE V.PARTHIBAN
O.A.No.99 of 2021 and
A.No.615 of 2021
M.Kalanidhi ... Applicant
Vs.
Mr.S.Kuppuraj ... Respondent
Prayer : Application filed under Order XIV Rule 8 of OS Rules r/w Section
9 of the Arbitration Act, to grant interim injunction restraining the respondent
from commencing construction work any further over and above the land and
building situated at Door No.1, 5th Cross Street, Manigandapuram,
Thirumullaivoyal, Chennai – 62, by engaging third party building contractor.
For Applicant :M/s.M.Hema Kumar
For Respondent :Mr.B.Anand Johnson
https://www.mhc.tn.gov.in/judis/
1
O.A.No.99 of 2021 and
A.No.615 of 2021
ORDER
This application has been filed to grant interim injunction
restraining the respondent from commencing construction work any further
over and above the land and building situated at Door No.1 , 5th Cross Street,
Manigandapuram, Thirumullaivoyal, Chennai 600 062 by engaging third
party building contractor.
2. The case of the applicant is that he is a building contractor and
the respondent is the owner of the above said property. A Construction
Agreement dated 22.01.2018 has been entered into between the applicant and
the respondent. According to the applicant, he has started the construction
work as per the agreement dated 22.01.2018. The work has not been
completed due to the non-cooperation of the respondent. But, all of a sudden,
suppressing all these facts, the respondent has arbitrarily terminated the
Construction Agreement dated 22.01.2018 and also failed to pay the dues to
the tune of Rs.12,41,764/-. Hence, the dispute was referred to sole Arbitrator
as per clause 18 of the Construction Agreement. The Arbitrator passed an
Award directing the respondent to pay a sum of Rs.8,16,243/-, after all the
deductions, to the applicant. While matter stood thus, on 23.11.2020, the
respondent in a hurried manner started the construction work by availing the
service of another building contractor without paying the award amount
https://www.mhc.tn.gov.in/judis/
O.A.No.99 of 2021 and
A.No.615 of 2021
passed by the sole Arbitrator. Therefore, the applicant is before this Court
with the above prayer.
3.Mr.B.Anand Johnson, learned counsel for the respondent
appeared and filed a counter affidavit. The learned counsel submitted that the
present Section 9 application is not maintainable as the award passed by the
Arbitrator dated 21.11.2020 became enforceable and therefore, the present
application has to be dismissed as not maintainable. In this regard, the
learned counsel referred a decision of the learned Division Bench of this
Court dated 15.02.2021, in the case of Gopuram Enterprises Ltd. vs.
M/s.Integrated Finance Company Ltd in O.S.A.53 of 2021 and
C.M.P.No.1830 of 2021, in support of his submissions. The relevant portions
in paragraph Nos.6 to 11 are extracted hereunder:
"6. In short, notwithstanding the Act of 1996 being
a complete code and governing everything pertaining to
arbitration, once an arbitral award, in full or part, becomes
enforceable, the enforcement of such award or part of the
award has to be in accordance with the Code. In a manner of
speaking, the matter as to the enforcement of an award slips
out of the purview of the Act of 1996 and falls within the
domain of the Code for it to be exclusively governed by the
Code thereupon.
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O.A.No.99 of 2021 and
A.No.615 of 2021
7. Though such aspect of the matter may not be
relevant in the present context, but for the completeness of the
discussion on the aspect, it must not be lost sight of that the
word "Court" in the relevant expression in Section 36(1) of
the Act is preceded by the definite article. That would
necessarily imply that the Court before which execution of an
arbitral award is sought must have been capable to entertain
a suit between the parties in respect of the subject-matter of
the arbitral reference. The choice of the definite article
instead of the indefinite, necessitates such construction and
excludes any other.
8. However wide the powers conferred on a Court
under Section 9 of the Act may be seen to be, such powers
may not extend to issuing orders for discovering the assets of
an award debtor. Order XXI of the Code, that provides for
execution, carries the necessary provisions for such purpose
and Section 9 of the Act cannot be enlarged to incorporate the
wide authority that an executing Court has to aid the award-
holder, who metamorphoses as a decree-holder by the legal
fiction contained in Section 36(1) of the Act, to seek or obtain
orders of such nature or of arrest or detention of the award-
debtor or the sequestration of its assets and properties.
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O.A.No.99 of 2021 and
A.No.615 of 2021
9. The quality of orders that can be passed under
Section 9 of the Act are substantially different from the quality
of orders that may be passed in course of execution. While the
emphasis in Section 9 is to the subject-matter of the
arbitration and may even, charitably, be seen to cover the
subject matter of the award; orders in the nature of
discovering assets of the deemed judgment-debtor or
requiring him to file an affidavit of assets and the like may not
be seen within the ambit of the authority available under
Section 9 of the Act of 1996.
10. The Act of 1996 covers all things pertaining to
arbitration and operates between the commencement of the
arbitral proceedings within the meaning of Section 21 of the
Act of 1996 and the conclusion of all matters pertaining to the
arbitration before Section 36 of the Act kicks in, so to say, and
renders the award enforceable.
11. For the reasons aforesaid, the order impugned
in O.S.A.No.53 of 2021 is found to be in excess of jurisdiction
and not being squarely covered by the limited ambit of
Section 9 of the Act of 1996 available at the post-award stage.
Such order is set aside."
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O.A.No.99 of 2021 and
A.No.615 of 2021
4. This Court has considered the submissions of the learned
counsel for the applicant as well as the learned counsel for the respondent
and the also perused the materials placed on record and the decision of the
learned Division Bench of this Court referred by the learned counsel for the
respondent. In view of the above decision and also the fact that the award
was passed on 21.11.2020 and it had become admittedly enforceable,
invocation of Section 9 is legally impermissible.
5. Hence, this application in O.A.No.99 of 2021 filed under
Section 9 of the Arbitration and Conciliation Act, 1996 is not maintainable
and hence dismissed. Consequently, A.No.615 of 2021 filed for furnishing
security also stands dismissed as not maintainable. No costs.
27.08.2021
gsk
https://www.mhc.tn.gov.in/judis/
O.A.No.99 of 2021 and
A.No.615 of 2021
V.PARTHIBAN,J.
gsk
O.A.No.99 of 2021 and
A.No.615 of 2021
27.08.2021
https://www.mhc.tn.gov.in/judis/
