Judgment :- 1. This is an application by Chemech Engineers Private Limited under S. 41 of the Arbitration Act read with Schedule II and O. 14, R. 8 of the Original Side Rules, for an injunction restraining the first respondent, viz., the Arbitrator appointed by the second respondent, from acting as Arbitrator and proceeding with the arbitration and also restraining the second respondent from proceeding with arbitration before the first respondent. 2. The facts of the case are briefly as follows:—The applicant is a company specialised in execution of Turnkey Jobs and supply and erection of chemical manufacturing plant. The second respondent is a company which has as its main objects the manufacture of certain chemicals and chemical components. The second respondent called for a tender for the designing, fabrication, erection and commissioning of a plant for the manufacture of Acetic Acid and Acetic Anhydride (Plant) at Pudukkottai District and in pursuance thereof an agreement was entered into between the applicant and the second respondent on the 27th May, 1977, whereunder the applicant agreed to design, erect and commission a plant for the manufacture of acetic acid, acetic anhydride according to the specifications and particulars agreed to between the parties for a total consideration of Rs. 1,38,60,000. The agreement clearly provided for the manner in which the aforesaid sum of Rs. 1,38,60,000 was to be paid by the second respondent. Since the applicant was not in possession of process know-how for part of the project which had to be secured from another agency on a fee of Rs. 10,50,000 the second respondent agreed to pay a sum of Rs. 1,28,10,000 under a supplemental agreement and the said revised agreement was entered into on 27th May, 1977. 3. The first agreement, dated 27th May, 1977 contains an arbitration clause by which any dispute or difference between the parties arising out of the said agreement has to be referred to two arbitrators to be appointed by each party to the dispute. 1,28,10,000 under a supplemental agreement and the said revised agreement was entered into on 27th May, 1977. 3. The first agreement, dated 27th May, 1977 contains an arbitration clause by which any dispute or difference between the parties arising out of the said agreement has to be referred to two arbitrators to be appointed by each party to the dispute. Clause 5-8 of the agreement, dated 27th May, 1977 is as follows;— “should any difference or dispute arise between Hydrocarbons and Chemech of this agreement, than it should be referred to two arbitrators to be appointed by each party and such arbitration shall be governed by the Arbitration Act, 1940 or any statutory modification thereof for the time being in force.” There were differences between the applicant and the second respondent and there were also claims and counterclaims. The said differences were not settled by mutual discussion as is borne out from the correspondence filed by both the parties in this case. Eventually the second respondent by means of a letter dated 29th November, 1983, addressed to the applicant, lodged a claim for Rs. 51.70 lakhs towards non-performance as well as failure of consideration in respect of S.S. Equipment. It is also stated in that letter that since the second respondent had not received the amounts due so far, the second respondent had no other alternative than to seek arbitration as laid down in the agreement, dated 27th May, 1977. By means of subsequent letter dated 13th January, 1984, the second respondent intimated the applicant that they have appointed Thiru M.L.N. Sastry, Technocrat and Industrialist, Managing Director, Malladi Drugs and Pharmaceuticals Limited, Madras, the first-respondent herein as their Arbitrator. The applicant was requested in that letter to notify the second respondent within 15 days from the date of receipt of the communication the appointment of an Arbitrator from their side failing which Thiru M.L.N. Sastry, will be appointed by the second respondent as the sole Arbitrator whose award will be binding on both sides. According to the letter dated 7th March, 1974, by the second respondent to the applicant, the second respondent stated that since no intimation had been received for a period of 45 days from the applicant the second respondent had appointed Thiru M.L.N. Sastry as the sole Arbitrator, whose award shall be binding on both sides. According to the letter dated 7th March, 1974, by the second respondent to the applicant, the second respondent stated that since no intimation had been received for a period of 45 days from the applicant the second respondent had appointed Thiru M.L.N. Sastry as the sole Arbitrator, whose award shall be binding on both sides. On receipt of the letter dated 7th March, 1974 from the second respondent, the applicant replied by means of a letter dated 16th March, 1984 in which the applicant took a stand that they also had a claim against the second respondent for a sum of Rs. 16,55,342 and a further sum of Rs. 4,71,675 towards interest, making up in all a sum of Rs. 21,27,017 and that the applicant had also initiated legal proceedings against the second respondent for recovery of the said sum. In the said letter the applicant also alleged that the agreement dated 27th May, 1977 does not contain a valid arbitration clause as alleged by the second respondent. As per clause 58 of the agreement, if any difference or dispute arises between Southern Hydrocarbons Limited and Chemech it should be referred to two Arbitrators to be appointed by each party. No dispute has been raised by the second respondent as envisaged in the said clause in the agreement. In the said letter it is further stated that the appointment of a single Arbitrator by the second respondent is not in consonance with the arbitration clause in the agreement. Even on this ground the appointment of Thiru M.L.N. Sastry is not acceptable to the applicant and the appointment is wholly untenable and not binding on the applicant. Hence the applicant prayed for an injunction restraining the first respondent-the arbitrator appointed by the 2nd respondent from acting as an Arbitrator and also for an injunction restraining the Arbitrator as well as the second respondent from proceeding with the arbitration. 4. In the counter-affidavit filed on behalf of the second respondent the averments in the affidavit in support of the application are denied. The second respondent also raised a legal contention that S. 41 of the Arbitration Act can be invoked by a party to an Arbitration for certain interim reliefs pending decision on a dispute by the Arbitrator. The said provision cannot be invoked unless a valid reference is pending. The second respondent also raised a legal contention that S. 41 of the Arbitration Act can be invoked by a party to an Arbitration for certain interim reliefs pending decision on a dispute by the Arbitrator. The said provision cannot be invoked unless a valid reference is pending. In as much as the applicant is contending that there is no arbitration clause in the contract and that the reference is not valid it cannot at the same time approach the Court for orders under S. 41 of the Arbitration Act. The applicant cannot dispute the existence and validity of the arbitration proceedings and at the same time seek relief under S. 41 of the Arbitration Act. The allegation that there is no valid arbitration agreement between the second respondent and the applicant is denied. The further allegation that there is no valid dispute between them is also denied. The letter from the second respondent dated 25th October, 1983 and the further reminder dated 29th November, 1983 clearly bring out the existence resolved only in the manner provided in the agreement, namely, by reference to arbitration. The second respondent after mentioning that though this Court cannot go into the details of the claim and the same will have to be done before the Arbitrator yet proceeded to deny the claim made. The second respondent also contended that the first respondent, viz., the Arbitrator, will have to proceed with the Arbitration on account of the following reasons:— (1) The applicant company has not established plant performance as per guarantees as laid down in the agreement to the satisfaction of the second respondent, despite the long time given; (2) The non-performance of guarantees has been accepted without any reservation by the applicant company every time and at every meeting; (3) Failure of consideration and deficiencies in the performance of the guarantees: The applicant company has to make good Rs. 38 lakhs in the supply of stainless steel equipment towards failure of consideration. Further, there has been deficiencies in the performance of guarantees, which has been quantified as Rs. 13.86 lakhs. The second respondent company has been put to substantial financial loss on account of the above factors for which the company made a net claim of Rs. 38 lakhs in the supply of stainless steel equipment towards failure of consideration. Further, there has been deficiencies in the performance of guarantees, which has been quantified as Rs. 13.86 lakhs. The second respondent company has been put to substantial financial loss on account of the above factors for which the company made a net claim of Rs. 51.7 lakhs after adjusting the allowable portion in the escalation claim: (4) The non-performance of guarantees has slowly but steadily eroded into the profits of the company and has made it a sick unit: (5) The second respondent has sought for arbitration, since there is a dispute between the signatories to the agreement which has to be resolved by reference to arbitrators to be appointed by each party. Accordingly, the second respondent appointed the first respondent as arbitrator and requested the applicant company to appoint an arbitrator from their side. Since the applicant company did not appoint the arbitrator even after the lapse of 45 days, the second respondent had no other alternative than to appoint the Arbitrator earlier appointed by them as the sole Arbitrator: (6) The applicant did not appoint an arbitrator even though sufficient time was given and has now sought the intervention of the Court to stall the proceedings of the Arbitrator. The applicant is not entitled to an order of injunction Hence the first respondent prays for the dismissal of the application. 5. In support of the contention by the second respondent that S. 41 of the Arbitration Act can be invoked by a party to the arbitration for certain interim reliefs pending decision by the Arbitrator and the same cannot be invoked unless a valid reference is pending, reliance is placed upon the case reported in Union of India v. Raman Iron Foundry 1 where the Supreme Court held that under S. 41 (b) of the Arbitration Act read with second Schedule the Court has power to issue interim injunction, but such interim injunction can only be for “the purpose of and in relation to the arbitration proceedings”. The second respondent further contended that if the validity of the arbitration is to be challenged it can be done only under S. 33 of the Arbitration Act, which is as follows:— “Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits: Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit”. It is also pointed out that under S. 41 of the Arbitration Act certain orders can be passed with reference to matters set out in the second Schedule. All the matters set out in the second schedule only relate to the interim proceedings pending arbitration, viz., preservation, interim custody and sale of the articles which are the subject matter of reference. Action can be taken with reference to the detention, preservation or inspection under the second schedule. None of the clauses in the second schedule empower a party to question the authority of the arbitrator or the validity of the arbitration agreement. S. 41 (b) of the Arbitration Act empowers the Court only to pass orders with reference to matters set out in the second schedule. Since the reliefs relating to invalidity of the arbitration agreement do not find a place in the second schedule I have no hesitation in coming to the conclusion that in this application under S. 41 of the Arbitration Act the applicant cannot challenge the existence or validity of the arbitration agreement. 6. S. 33 of the Arbitration Act enables the parties to challenge the existence or validity of an arbitration agreement or an award. Now the question is whether this application filed under S. 41 of the Arbitration Act can, be treated as an application filed under S. 33 or the Arbitration Act under the inherent powers of the Court. S. 41 read with second schedule deals only with the powers of the Court to pass orders in respect of the matters pending before the Arbitrator and the same is in the nature of an interlocutory proceeding. S. 41 read with second schedule deals only with the powers of the Court to pass orders in respect of the matters pending before the Arbitrator and the same is in the nature of an interlocutory proceeding. But proceedings under S. 33 of the Arbitration Act are in the nature of original proceedings that can be filed by a party for declaration relating to the validity of an arbitration agreement or award. Hence the application filed under S. 41 of the Arbitration Act cannot be treated as an application filed under S. 33 of the Arbitration Act. 7. The learned Advocate for the applicant also contended that in any event the arbitration agreement provides for two arbitrators and the reference to a single arbitrator is not sustainable. This contention again falls under S. 33 and hence no relief can be granted in an application filed under S. 41. 8. Under the circumstances this application filed under S. 41(b) of the Arbitration Act is not sustainable and the same is dismissed. However, the applicant is at liberty to start appropriate proceedings, if so advised. There will be no order as to costs.