Kirby Building Systems And ... vs M/S. Vellapally Brothers
2022 Latest Caselaw 626 Tel

   THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                              AND
        THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

                         COMCA.Nos.38 and 39 of 2021

COMMON JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)

        Regard being had to the controversy involved in the aforesaid

cases, they were heard together and are being decided by a

common order.

        The facts of COMCA.No.38 OF 2021 are reproduced as

under:-

        The present appeal is arising out of the order dated

19.07.2021 passed by the learned Judge, Special Court for Trial

and     Disposal        of    Commercial          Disputes,         Hyderabad,   on   an

application preferred under Section 9 of the Arbitration and

Conciliation Act, 1996 (for short 'the Act of 1996') i.e., COP.No.26

of 2021.

        The undisputed facts of the case reveal that the appellant

before this Court and the respondents have entered into an

agreement and a bank guarantee was also furnished for a sum of

Rs.1.00 crore. As there was a dispute between the parties, an

application was preferred under Section 9 of the Act of 1996 by the

appellant for issuance of an order restraining the respondents

therein from encashment of the bank guarantee.

Learned counsel for the appellant is fair enough in stating

before this Court that the bank guarantee has already been

encashed and therefore, the only relief for which he is praying

today is that the order passed by the Court below on an

application under Section 9 of the Act of 1996 should not come in

the way of the parties, in case arbitration clause is invoked.

Learned counsel for the respondents has argued before this

Court that there is no arbitration clause and therefore, the

application under Section 9 of the Act of 1996 itself was not

maintainable.

In the considered opinion of this Court, the questions as to

whether the arbitration clause is in existence or not and whether

the dispute is arbitrable or not have to be looked into by the

appropriate Forum, in case an application is preferred under

Section 11 of the Act of 1996.

Therefore, the present appeals stand disposed of with a

liberty to take recourse to the other legal remedies available under

the law and the order passed by the Court below will not come in

the way of the parties. In case an Arbitrator is appointed under

Section 11 of the Act of 1996, the Arbitrator shall pass an

appropriate award, based upon the evidence adduced by the

parties, not being influenced by the order passed by the Court

below.

Pending miscellaneous applications, if any, shall stand

closed. There shall be no order as to costs.

________________________ SATISH CHANDRA SHARMA, CJ

_______________________ ABHINAND KUMAR SHAVILI, J

14.02.2022 JSU