Mdda Ramky Isbt Ltd vs Mussoorie Dehradun Development ...
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HIGH COURT OF UTTARAKHAND AT NAINITAL

            Writ Petition (M/S) No. 2233 of 2023
MDDA RAMKY ISBT Ltd.                        .............Petitioner

                                Versus

Mussoorie Dehradun Development Authority
                             ...........Respondent
Present:-
              Mr. Arvind Desai and Mr. Divyan Agarwal, Advocates
              (through video conferencing) and Ms. Gurbani Singh,
              Advocate for the petitioner.
              Mr. Rahul Consul, Advocate for the respondent.



                              JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

By means of the instant petition, the petitioner

seeks directions to restrain the respondent from

interfering in any manner with the petitioner's

performance of its services in terms of the agreement and

further restraining the respondent from creating or

alienating any third-party rights on the project site.

2. Heard learned counsel for the parties and

perused the record.

3. It is the case of the petitioner that the

respondent issued a request for proposal for undertaking

the construction of Inter State Bus Terminal ("ISBT")

along with commercial complex on Built Operate and

Transfer basis. The petitioner submitted his proposal and

he was awarded the work on 23.06.2003. Subsequently,

the petitioner entered into an agreement with the

respondent. Some dispute arose between the parties. The

petitioner did file an application under Section 9 of the

Arbitration and Conciliation Act, 1996 ("the Act") in the

Commercial Court at Dehradun, which was registered as

Arbitration Case No.39 of 2023. The petition was

dismissed on 21.07.2023. Thereafter, the petitioner filed a

petition under Section 11 of the Act. It was registered

Arbitration Petition No.44 of 2023, which was allowed on

28.07.2023 and Arbitrator has been appointed. It is the

case of the petitioner that when the Arbitration

proceedings were still pending on 26.07.2023, the

respondent did issue a notice to the petitioner to

handover the possession of the project site.

4. Learned counsel appearing for the petitioner

would submit that the term of the agreement is till

26.10.2023. There have been some disputes between the

petitioner and the respondent that were agitated by the

petitioner in the arbitration proceedings firstly, under

Section 9 of the Act and thereafter, a fresh petition that

was filed by the petitioner for appointment of Arbitrator.

But, it is argued that the respondent, in a most arbitrary

manner, without any just reason are adamant to throw

out the petitioner from the project site without due course

of law. It is also submitted that, in fact, admittedly the

petitioner shall remain in project site till 27.10.2023

although, according to him the petitioner claims that he

has right to run the project till 2031.

5. Learned counsel appearing for the respondent

would submit that the petitioner filed an application

under Section 9 of the Act for the similar relief, which has

already been rejected on 21.07.2023, which has yet not

been challenged. Not only this, it is argued that at the

instance of the petitioner Arbitrator has already been

appointed in a proceeding that was undertaken under

Section 11 of the Act. It is argued that the respondent had

already taken possession of the project site on

27.07.2023. Learned counsel would submit that the

reliefs, which the petitioner have sought in Arbitration

proceedings, are again sought in the writ petition. For this

reason the petition is not maintainable.

6. There are gross disputed question of facts in

the instant petition. At the first instant, what is argued on

behalf of the petitioner is that the respondent intends to

disposes the petitioner without due course of law. This

question of possession has been disputed by the

respondent on the ground that the petitioner is not in

possession of the project site and the respondent has

already been taken possession on 27.07.2023. This Court

may not examine those issues in this writ petition.

Moreover, it is admitted case of the petitioner that he has

filed an application under Section 9 of the Act with regard

to the dispute that had arisen with the respondent. It is

also admitted that the application under Section 9 of the

Act has already been dismissed by the Commercial Court,

Dehradun, that order has yet not been challenged. It is

also admitted position that with regard to the dispute that

has arisen between the parties, the petitioner has sought

appointment of an Arbitrator by filing an application

under Section 11 of the Act, which has already been

allowed for constitution of the Arbitral Tribunal.

7. As stated, there are gross disputed question of

facts between the parties, which has arisen out from the

contract. The arbitration proceedings have already been

undertaken on the issue. Therefore, this Court does not

see any reason to entertain the petition. Accordingly, the

petition deserves to be dismissed at the stage of

admission itself.

8. The petition is dismissed in limine.

9. When these lines were dictated, learned

counsel for the petitioner would submit that the petitioner

should be given liberty to raise all these questions in the

appeal that may be filed against the order passed under

Section 9 of the Act.

10. Needless to say, the petitioner is always free to

raise these issues, which has been raised in the petition

before any forum as permissible under law because this

Court has not recorded any finding on any of the issues.

This Court has just not entertained the petition in view of

the nature of dispute between the parties as well as the

recourse to arbitration proceedings by the petitioner.

(Ravindra Maithani, J.) 11.08.2023 Sanjay