M/S Aakaar Associates vs M/S Shri Hari Group
2021 Latest Caselaw 2280 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

           D.B. Civil Miscellaneous Appeal No. 594/2021

M/s Aakaar Associates., Registered Office At H-25, Sapphire
Jagan Apartment, Tulsi Marg, Bani Park, Jaipur, Through Its Sole
Proprietor- Mr. Shailesh Khandelwal.
                                                                  ----Appellant
                                   Versus
M/s Shri Hari Group, Having Its Registered Office At 1St Floor,
Dhariwal Complex, Behind New Vidhan Sabha, Janpath, Lalkothi,
Jaipur 302015, Through Its Partner Mr. Hari Om Gupta
                                                                ----Respondent

For Appellant(s)         :     Mr. Anuroop Singhi
For Respondent(s)        :     Mr. Manish Sharma
                               Mr. Rahul Kamwar



           HON'BLE MR. JUSTICE PRAKASH GUPTA
          HON'BLE MR. JUSTICE PANKAJ BHANDARI

                                Judgment

26/03/2021

1. Appellant has preferred this appeal aggrieved by order dated

16.3.2021 whereby application filed by the appellant under

Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter

referred to as "the Act") was dismissed.

2. It is contended by learned counsel for the appellant that the

Commercial Court has rejected the application only on the ground

that an Arbitrator has been appointed on 3.3.2021. It is also

contended that the Arbitrator and the Court works in different

spheres. An application for interim measure lies before the

Arbitrator under Section 17 of the Act and an application for

interim relief lies before the Court under Section 9 of the Act. It is

argued that merely because, an Arbitrator has been appointed,

(2 of 3) [CMA-594/2021]

the Court does not seize to have jurisdiction to decide an

application under Section 9 of the Act.

3. It is contended that the Commercial Court has passed an

interim order and has later on interpreted "status-quo" to mean

that construction would continue on the site. It is also contended

that the said interpretation of the order was challenged before the

High Court in S.B. Civil Writ Petition No.13725/2020 and the High

Court clarified that the observation made by the Commercial Court

recorded in Para 9 of the order dated 4.11.2020 with regard to the

interpretation of the "status-quo", should not come in the way

while deciding application under Section 9 of the Act.

4. It is contended that the Court below has not noted the

observation made by the High Court in S.B. Civil Writ Petition

No.13725/2020 and has reproduced the observation made by the

Court in order dated 4.11.2020 and therefore, has erred in

dismissing the application holding it to be meaningless. Learned

counsel for the appellant has placed reliance on Benara Bearings

& Pistons Ltd. Versus Mahle Engine Components India Pvt.

Ltd.: FAO(OS) (COMM) 66/2016 & CM No.31593/2016 passed by

the Delhi High Court on 1.3.2017 wherein it was held that if the

arguments of the appellant were to be accepted that the moment

an Arbitral Tribunal is constituted, the Court, which is seized of an

application under Section 9 of the Act, becomes coram non judice,

would create a serious vacuum as there is no provision for dealing

with pending matters. All the powers of the Court to grant interim

measures before, during the arbitral proceedings or at any time

after the making of the arbitral award but prior to its enforcement

in accordance with Section 36 are intact and have not been

altered by the amendment in Section 9(1) of the Act.

(3 of 3) [CMA-594/2021]

5. Learned counsel for the respondent contends that since the

Arbitrator has been appointed, he has the power under Section 17

of the Act to dispose of the application pertaining to interim relief.

It is also contended that the provisions contain under Section 17

of the Act is verbatim to the powers granted to the Court under

Section 9 of the Act.

6. We have considered the contentions.

7. The Commercial Court has clearly erred in not exercising its

powers under Section 9 of the Act and has committed a grave

error in dismissing the application only on the ground that an

Arbitrator has been appointed. Therefore, the impugned order

dated 16.3.2021 deserves to be quashed and set aside and the

same is accordingly quashed and set aside. Parties are directed to

appear before the Commercial Court on 5.4.2021. The Commercial

Court is directed to decide the application under Section 9 of the

Act afresh after taking into account the order passed by the High

Court in S.B. Civil Writ Petition No.13725/2020 in accordance with

law.

                                   (PANKAJ BHANDARI),J                                        (PRAKASH GUPTA),J

                                   SUNIL SOLANKI /14









Powered by TCPDF (www.tcpdf.org)