Dalveer Bhandari ( 1 ) THE petitioners have entered into a number of agreementswith the respondents, for the construction of a Five Star Hotel at Saket, New Delhi. Itis alleged by the petitioners that during the pendency of the agreement, the respondentshave entered into an agreement with ITC, in total contravention of the agreements withthe petitioners. It is further alleged that the petitioners agreements with the respondents are subsisting and without requisite notice of termination, the respondents haveentered into an agreement with ITC, which is in contravention with the respondentsagreement with the petitioners. Consequently, respondent No. 1 be restrained fromterminating the Technical Services Agreement, Hotel Operating Agreement, Advisoryservices Agreement, License and Royalty Agreement, Pre-Opening Technical Assistance Agreement and International Sales and Marketing Agreement dated 8/03/1997. ( 2 ) IT is also prayed that the respondents be restrained from entering into anyagreement for provision of technical services for the Hotel with any third party, otherthan petitioner No. 2 or its affiliates. ( 3 ) IT is further prayed in the petition that the respondents be restrained fromdisclosing or parting with the confidential information in violation of confidentialityclause contained in the agreement. It is also prayed that the respondents be directed torestore immediately the "marriott" banner and sign-board at the construction site ofthe Hotel and direct the respondents to effect payments to petitioner No. 2 as requiredunder the terms of TSA dated 8. 3. 1997. ( 4 ) THE petitioners have moved this Court under Section 9 of the Arbitration andconciliation Act, 1996 for interim measure/relief. The main submission of the petitioners is that there is no valid termination of the petitioners agreement with therespondents. For the sake of convenience, the petitioners hereinafter shall be referredas marriott and the respondents as ansals . ( 5 ) ACCORDING to Article 8. 02 (C), Technical Services Agreement hereinafterreferred TO as (TSA) required minimum 30 days written notice of termination forbreach/default. It is also mentioned that if breach/default is rectified or cured within30 days then the notice at termination shall be of no force and effect. The respondentshave terminated the agreement vide letter dated 13. 1. 1999 and purport to terminatemarriott TSA with immediate effect with no cure period. According to the petitioners,the termination is illegal. The petitioners replied to the termination letter dated 2. 2. 1999and 26. 2. 1999 but received no response from the respondents. ( 6 ) ARTICLE 16. The respondentshave terminated the agreement vide letter dated 13. 1. 1999 and purport to terminatemarriott TSA with immediate effect with no cure period. According to the petitioners,the termination is illegal. The petitioners replied to the termination letter dated 2. 2. 1999and 26. 2. 1999 but received no response from the respondents. ( 6 ) ARTICLE 16. 02 of Marriott Operating Agreement provides for termination byminimum 90 days notice and if breach/default is rectified or cured within the noticeperiod, then the notice would be of no force and effect. Other Marriott Agreements alsocontain similar notice provisions. Termination by letter dated 4. 3. 1999 with immediateeffect with no notice period is illegal. Other Marriott Agreements were terminated byletter dated 5. 3. 1999 with immediate effect with no notice period. ( 7 ) IT is alleged by the petitioners that the respondents have entered into anagreement with ITC Hotels Limited on 16. 1. 1999 in utter violation with the petitioners agreement. It is also alleged that ITCHL Hotel Operating Agreement was entered intoon 16. 1. 1999 even before the issue of purported termination letter dated 5. 3. 1999 formarriott Operating Agreement and other Marriott Agreements. ( 8 ) THE ITCHL entered into shareholders agreement on 16. 1. 1999, during theperiod when Marriott Hotel Operating Agreement was subsisting, consequently theagreement is clearly in violation of the provisions of hotel Sale with Marriott Hoteloperating Agreement. ( 9 ) IT may be pertinent to mention that the petitioners have alleged that on 13. 1. 1999the respondents terminated Technical Services Agreement dated 8. 3. 1997 by allegingthat petitioner No. 2 Marriott International Design and Construction Services had failedto perform its obligation thereunder. By letters dated 4/03/1999, the respondentsterminated the remaining other agreements with the petitioners by alleging that (i)agreements had not come into operation and (ii) no consideration had passed betweenthe parties. The agreements by terms do not call for performance by either party untilat or near the official opening date of the Hotel, a date that is at least one year away. Inaddition, the terms of the agreements clearly indicate that a full and fair considerationhas passed between the parties. Therefore, such purported termination by the partiesis null and void and of no legal force or effect. Inaddition, the terms of the agreements clearly indicate that a full and fair considerationhas passed between the parties. Therefore, such purported termination by the partiesis null and void and of no legal force or effect. ( 10 ) THE petitioners as such, on the basis of the information received one or morerespondents or their affiliates have executed or are about to execute an agreement oragreements with ITC Hotels Limited or its affiliates under which (i) ITC Hotels Limitedor its affiliates to operate Hotel or (ii) ITC Hotels Limited will purchase upto 25% of theshares of respondent No. 1 and will provide Hotel operation advice, consultation andtechnical services to respondent No. 1, to enable respondent No. 1 to operate the Hotelby itself. The provisionsg the crime may be. All possible chances of innocent man being convicted have to be ruled out. There should be no hostile atmosphere against an accused in Court. A hostile at- mosphere is bound to interfere in an unbiased approach as well as a decision. This has to be avoided at all costs. We are sorry for the above diversion but it has become necessary in this case. M/s. D. K. Enterprises e. S. I. Corporation delhi HIGH COURT yogeshwar Day without sufficient cause to do so, in order to availthemselves of the opportunity to appoint ITC Hotels Limited as the new operator of thehotel or to enable respondent No. 1 to take over operation of the Hotel itself. Thepetitioners have been and continue to barmed by such action on the part of therespondents and ITC Hotels Limited. The relevant portions of the Technical Servicesagreement are reproduced. "4. 1: Generalon behalf of owner, MIDCS shall, subject to the terms and conditions containedherein, provide the technical services set forth in this Article. In general, MIDCSshall advise owner and owner s Consultants on the Standards, aesthetics, endsystems necessary for the Hotel to be operated by operator. Such advice shall beprovided to Owner and Owner s Consultants in the areas of architectural design,interior design, Trade equipment specifications and layouts, life/safety require-ments, audio/video, telecommunication, security, and Hotel Systems. In per-forming these technical services, MIDCS shall :8. Such advice shall beprovided to Owner and Owner s Consultants in the areas of architectural design,interior design, Trade equipment specifications and layouts, life/safety require-ments, audio/video, telecommunication, security, and Hotel Systems. In per-forming these technical services, MIDCS shall :8. 02: Terminationthis agreement may be terminated (unless otherwiserestricted by applicablelaw) on thirty (30) days written notice : By owner upon the occurrence of the following : (1) If MIDCS shall fail to perform or observe any material obligation orrequirement of this agreement and such failure shall continue for thirty (30) days after written notice thereof from owner specifying the nature andextent of such default; provided, however, that if upon receipt of suchnotice, MIDCS shall (if such default is not susceptible of being cured withinthirty (30) days) promptly commence to cure such default and shallthereafter diligently pursue such efforts to completion, then such noticeshall be of no force and effect. "8. 03: Survival of Termsthe obligations of owner for compensation to MIDCS as contained in Article V and forindemnification as contained in Sections 3. 04 and 9. 07 shall survive any termination orexpiration of this agreement. ( 11 ) THE clauses regarding jurisdiction as applicable are set out as under :"a. This agreement is executed pursuant to, and shall be construed under andgoverned exclusively by, the laws of India. Notwithstanding anything to the contrary herein, either party may seekinjunctive relief including, for purposes of illustration, restraining ordersand preliminary injunctions in any Court of competent jurisdiction; eitherparty shall be entitled to make an application to the Court requesting thatthe proceedings REFERRED TO arbitration in accordance with the terms ofsection 9. 12 without prejudice, however, to interim injunctions or enjoining orders granted by such Court. " ( 12 ) THE another important agreement which was executed between the petitioners and the respondents was the hotel Operating Agreement . Relevant clauses of thesaid agreement are reproduced hereinunder : "recital B. Operator has expertise and experience in operating first-class, full-service international Hotels and has agreed, at the request of owner, to performpurchasing, marketing, sales and other technical and professional services inorder to operate the Hotel as a first-class full-service international Marriott Hotelfor the account of owner on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the premises and mutual convenantscontained herein, the parties hereto agree as follows :"1. 01. Definition. hotel Sale shall mean. . . . NOW, THEREFORE, in consideration of the premises and mutual convenantscontained herein, the parties hereto agree as follows :"1. 01. Definition. hotel Sale shall mean. . . . (ii) any sale, assignment, transfer or other conveyance,in a single transaction or a series of related transactions for value or otherwise. . . . which results in a change of effective control of owner. "2. 01. Appointmentin consideration of the mutual convenants contained in this agreement, ownerhereby engages operator to render the technical and professional servicesdescribed in this agreement and appoints operator to supervise, direct andcontrol the operation of the Hotel for the term provided in Article IV. Ownerhereby grants to operator the full scope of authority necessary to carry out andperform the terms of this agreement. Operator accepts such engagement andappointment and agrees to perform such services and operate the Hotel duringthe term in accordance with the terms and conditions set forth herein. Theperformance of all activities by operator hereunder shall be for the account ofowner. Operator shall have only such obligations to onwer as are expressly setforth in this agreement. 3. 01. Development Standards Financing and Construction. A. Owner at its sole cost and expense shall plan, design, construct, furnishand equip the Hotel on the site in accordance with (i) first-class, full serviceinternational standards, (ii) such plans, designs, specifications, fire and lifesafety standards, and time schedules as incorporate the standards ofmarriott as set forth in International Hotel Design Guide (a copy of whichhas been delivered to owner and which is incorporated herein by reference), and (iv) such other plans, designs, specifications, fire and life safetystandards, and time schedules as are agreed between owner and operator. Any change in any of such standards, plans, designs; specifications, fireand life safety standards, or time schedules shall require the joint agreement of owner and operator and shall be accomplished only pursuant toa written change order or other appropriate written evidence executed byowner and operator except as otherwise specifically provided in thetechnical Services Agreement or other relevant agreement. 16. 03. Other Remedies B. Nothing contained in this agreement shall bar either party s right to obtaininjunctive relief under applicable equity rules (including the applicablerules for obtaining restraining orders and preliminary injunctions) againstthreatened conduct which may cause it to incur loss or damages. 19. 01. 16. 03. Other Remedies B. Nothing contained in this agreement shall bar either party s right to obtaininjunctive relief under applicable equity rules (including the applicablerules for obtaining restraining orders and preliminary injunctions) againstthreatened conduct which may cause it to incur loss or damages. 19. 01. Hotel Sale Owner shall not enter into any Hotel Sale Agreement with any person to which,in operator s reasonable opinion, any of the standards of Section 18. 01 isapplicable. . . and owner shall not enter into or complete any Hotel Sate Agreementif there is an outstanding event of default or default in either case on owner spart. . . . . . ( 13 ) IN this agreement also the parties have agreed that this agreement is executedpursuant to and shall be construed and governed exclusively by the laws of India. Thisis indicated in Clause 22. 05 (B) which reads as under :"b. Notwithstanding anything to the contrary herein, either party may seekinjunctive relief (including, for purposes of illustration, restraining ordersand preliminary injunctions) in any Court of competent jurisdiction; eitherparty shall be entitled to make an application to the Court requesting thatthe proceedings be REFERRED TO arbitration in accordance with the terms ofsection 22. 06 without prejudice, however, to interim injunctions orenjoining orders granted by such Court. " ( 14 ) CLAUSE 22. 06 relates to Arbitration where the parties have agreed that thevenue of arbitration shall be at Kuala Lumpur, Malaysia. ( 15 ) SIMILARLY, in other agreements, it was made clear between the parties that theagreement is executed pursuant to and shall be construed under and governedexclusively by the laws of India. ( 16 ) IT is alleged by petitioner No. 1 that petitioner No. 2 has performed and hascontinued to perform and observe, all of its material obligations and requirementsunder the terms of the TSA. Similarly, regarding other agreements also the case of thepetitioners is that they have been discharging their obligations under the agreements. It is further alleged in the petition that the respondents have continued to deny thepetitioners their rights and have refused to comply with their obligations. In thesecircumstances, the petitioners are left with no choice but to approach this Court forinterim relief. ( 17 ) REPLY to the petition has been filed by the respondents. It is further alleged in the petition that the respondents have continued to deny thepetitioners their rights and have refused to comply with their obligations. In thesecircumstances, the petitioners are left with no choice but to approach this Court forinterim relief. ( 17 ) REPLY to the petition has been filed by the respondents. The respondents havetaken a preliminary objection that there is clear embargo of Section 2 (2) of the Act whichreads as "this part shall apply where the place of arbitration is in India". According to therespondents. Section 9 of the Act is in Part 1 of the Act and. in this case, admittedly,the venue of arbitration is at Kuala Lumpur, Malaysia and consequently, this Court hasno jurisdiction to entertain this petition. ( 18 ) ACCORDING to the respondents this petition suffers from misjoinder of causesof action. ( 19 ) IT is incorporated in the reply that the respondents entered into a contract withthe petitioners in order to get expertise and information from the professional hoteliers. It was discovered that the petitioners were not familiar with the requirements of thehoteliers in India. They could not give the details necessary for the operation of Hotelsin Indian conditions. The petitioners are also ignorant of the laws of India. It is alsomentioned in the reply that it is not only the quantitative inputs on the part of thepetitioners that has proved to be unsatisfactory and inadequate. It is also mentioned inthe reply that petitioner No. 2 has till date not supplied any preliminary evaluationreport of the project as required under the terms of the TSA. ( 20 ) THE respondents have also pointed out that some of the suggestions given bythe petitioners were not practical and conducive. It is also mentioned in the reply thatthe petitioners have behaved in a manner which indeed frustrated the entire purposeof entering into any contract with them. It is also indicated that the petitioners areignorant of the Indian legal requirements and the suggestions given by them are totallymeaningless for the Indian conditions and requirements particularly their advice andsuggestion pertaining to fire safety norms. Hotel rooms bedcovers, number ofkitchens, the quality of services, etc. , etc. ( 21 ) THE respondents have also submitted an additional affidavit of Mr. Virenders. Datta, Managing Director of respondent No. 1 in which it is mentioned that therespondents have entered into an agreement with ITC on 16. 1. 1999. Hotel rooms bedcovers, number ofkitchens, the quality of services, etc. , etc. ( 21 ) THE respondents have also submitted an additional affidavit of Mr. Virenders. Datta, Managing Director of respondent No. 1 in which it is mentioned that therespondents have entered into an agreement with ITC on 16. 1. 1999. The said agreementwas signed between the shareholders of Ansals and ITC, wherein 69,32,800 shares havebeen allotted to ITC for a consideration. ITC paid a sum of Rs. 6,23,95,200. 00 by way ofaccount payee cheque on 25. 2. 1999. A copy of the allotment letter showing allotmentof shares, dated 25. 2. 1999 has been placed on record. It is mentioned that the said Mr. Virender S. Datta was inducted as the Managing Director of respondent No. 1 in ameeting held on 20. 4. 1999 by the Board of Directors. Respondent No. 1 also recordedtransfer of 34,80,150 equity shares in favour of ITC Hotels Limited in a meeting held on20. 4. 1999. ( 22 ) IN the rejoinder, the petitioners have denied allegations, averments orcontentions incorporated in the reply. It is asserted in the rejoinder that it is misleadingto say that the agreements giving rise to the present proceedings were terminated asfar back as January, 1999. It is also mentioned that only the Technical Servicesagreement was purportedly terminated by the respondents on 13. 1. 1999, withoutproviding the petitioners with the 30-days notice period as required by the TSA. Petitioner No. 1 sent an interim response to the respondents on 2. 2. 1999, denying theallegations that petitioner No. 2 breached the TSA. This response also asserted that thetsa contained in full force and effect that the attempted termination had not beenundertaken in good faith and was not enforceable against petitioner No. 2. This wasfollowed by a detailed response on 26. 2. 1999 to the various points raised in therespondents letter of 13. 1. 1999. Accordingly, the allegation that the petition was hopelessly barred due to delay and laches is untenable. It is also mentioned that thepetitioners first became aware that the respondents were negotiating with ITC Hotelslimited through the newspaper reports dated 27. 2. 1999 and 18. 3. 1999. ( 23 ) IN the rejoinder the petitioners denied the allegations that they were ignorantof requirements of running a Hotel in India or the petitioners have failed to advise andassist the respondent adequately or displayed a lack of understanding. 2. 1999 and 18. 3. 1999. ( 23 ) IN the rejoinder the petitioners denied the allegations that they were ignorantof requirements of running a Hotel in India or the petitioners have failed to advise andassist the respondent adequately or displayed a lack of understanding. It is mentionedthat the petitioners franchise three Hotels in India at Mumbai, Hyderabad and Goa andis about to open the first Marriott managed Hotel in Goa. In addition, three moremarriott managed Hotels are under construction in India. Petitioner No. 2 providedrespondent No. 1 with the services specified in their agreement so that the respondentscould design and build a first class, full service international Hotel in accordance withmarriott International Standards that could be operated under the Marriott name. ( 24 ) MR. Ashok Desai, the learned Senior Advocate, who appeared on behalf of thepetitioners submitted that the conduct of the respondents has been manifestly dishon-est. He submitted that the notice of termination is neither in accordance with the lawsnor with the agreement entered into between the parties. ( 25 ) MR. Desai also submitted tliat Section 9 read with Section 2 (2) of thearbitration and Conciliation Act, 1996 does not restrict the Court s powers andjurisdiction to grant interim orders preserving the legal rights of the petitioners. Hesubmitted that the respondents are located within the jurisdiction of ttus Court. Mr. Desai also submitted that all Marriott Agreements are governed by the Indian laws. Agreements contain an express provision that either of the. parties to the agreementemay seek injunctive relief in any Court of competent jurisdiction. He particularly reliedon Articles 9 and 10 (B) of the Technical Services Agreement. Mr. Desai also submittedthat the Malaysian Arbitration Act, 1952 provides that neither the provisions of themalaysian law shall apply to any arbitration conducted under the auspices of the Kualalumpur Regional Centre for Arbitration (KLCRA) permits the parties to an arbitrationagreement to approach the judicial authority for interim measures. This is in concurrence with UNCITRAL Rules. He submitted that in any event the Court has inherentpowers and jurisdiction to grant injunction. "the ouster of the Courts jurisdiction hasto be express and cannot be inferred. He particularly relied on Sections 141 and 151 ofcode of Civil Procedure, 1908. I deem it appropriate to deal with the arguments of thelearned Counsel for the petitioner at some length. ( 26 ) MR. "the ouster of the Courts jurisdiction hasto be express and cannot be inferred. He particularly relied on Sections 141 and 151 ofcode of Civil Procedure, 1908. I deem it appropriate to deal with the arguments of thelearned Counsel for the petitioner at some length. ( 26 ) MR. Desai submitted that it is clear from the language of the Technical Servicesagreement that for termination of the agreement a 30 days clear notice is imperative. It is alleged that in this case, the 30 days notice as envisaged was not given. Similarly,in the Hotel Operation Agreement, a 90 days notice is imperative. The agreement wasterminated on 4. 3. 1999. ( 27 ) IN this view of the matter according to the petitioners it has to be concludedthat the respondents failed to give requisite notice of termination of the contract to thepetitioners. Mr. Desai also submitted that under the Arbitration and Conciliation Act,1996, the Court has been invested with the powers to grant the interm injunction/relief. He submitted that Section 2 (2) of the Arbitration and Conciliation Act, 1996 docs notrestrict the Court powers and jurisdiction to grant interim orders. It is mentioned in theact that Part I consists of Sections 1 to 43 of the Act shall apply to place of arbitrationin India. This does not exclude the arbitration where venue of arbitration is outsideindia. Mr. Desai further submitted that the intention of the Legislature becomesabundantly clear from the other clauses of this section, i. e. , Sections 2 (3), 2 (4), 2 (5 ). Therelevant clauses of the section are reproduced hereinbelow for the sake of convenience:"2 (2) This part shall apply where the place of arbitration is in India. 2 (3) This part shall not affect any other law for the time being in force by virtueof which certain disputes may not be submitted to arbitration. 2 (4) This part except Sub-section (1) of Section 40, Sections 41 and 43 shall applyto every arbitration under any other enactment for the time being in force, as ifthe arbitration agreement as if that other enactment were an arbitration agreement, except in so far as the provisions of this part are inconsistent with that otherenactment or with any rules made thereunder. 2 (5) Subject to the provisions of Sub-section 940, and save in so far as is otherwiseprovided by any law for the time being in force or in any agreement in forcebetween India and any other country or countries, this part shall apply to allarbitrations and to all proceedings relating thereto. " ( 28 ) SECTION 2 (5) clearly mentions that this part shall apply to all the arbitrrations andproceedings relating thereto, therefore, on close scrutiny and analysis of Section 2 (5),intention behind enacting the legislation becomes abundantly clear. According to Mr. Desai, the application of the section was not intended to be restricted for the arbitrationwhich are held in India. According to Mr. Desai, Section 2 (4), is clear that this part exceptsub-section (1) of Section 40, Sections 41 and 43 shall apply to every arbitration underany other enactment for the time being in force. Mr. Desai also submitted that the Chiefjustice of India and the Chief Justices of the High Courts have been invested with thepower to appoint Arbitrator under Section II, particularly when the venue of thearbitration is outside India. If the interpretation as given by the respondents is accepted,then the Chief Justice of India and Chief Justices of the High Courts shall have no powerto appoint an Arbitrator because Section II is also within Part I of Act. ( 29 ) MR. Desai submitted that in case para 1 of the Act does not apply to anarbitration with the venue outside India it could lead to an anomalous situation. According to the definition of international arbitration, it is possible that the venue ofthe arbitration is outside but the properties of one of the parties are located in India, asis the situation in the instant case. The immovable and movable properties of therespondents are in India. The arbitration proceedings are bound to take some time andaccording to the allegations, are that during the interregnum period, the parties arelikely to dispose of/fritter away the assets and by the time, the award is received, theother side may have only a paper award. In such a situation, if the domestic Courts haveno powers to grant interim protection then it may not only lead to immense hardshipbut in some cases the whole purpose of refering the matter for the arbitration may evenbe defeated. In such a situation, if the domestic Courts haveno powers to grant interim protection then it may not only lead to immense hardshipbut in some cases the whole purpose of refering the matter for the arbitration may evenbe defeated. ( 30 ) THE Arbitration and Conciliation Act, 1996 is based on the United Nationscommissions on International Trade law (UNCITRAL) adopted in 1985, the modellaw on International Commercial Arbitration. The General Assembly of the Unitednations has recommended that all countries give due consideration to the said Modellaw, in view of the desirability of uniformity of the law of arbitral procedures and thespecific needs of International Commercial Arbitration Practice. The UNCITRAL alsoadopted in 1980 a set of Conciliation Rules. The General Assembly of the United Nationshas recommended the use of these rules in cases where the disputes arise in the contextof international commercial transactions and the parties seek amicable settlement oftheir disputes by recourse to conciliation. In the Statement of Objects and Reasons it ismentioned that an important feature of the said UNCITRAL Model Law and Rules isthat they have harmonised concepts on arbitration and conciliation of different legalsystems of the world and thus contain provisions which are designed for universalapplication. The UNCITRAL Model Law and Rules are intended to deal withinternational Commercial Arbitration and Conciliation, they could, with appropriatemodifications, serve as a model for legislation on Domestic Arbiration and Conciliation. The present Act of 1996 is an Act to consolidate and amend the law relating todomestic Arbitration, International Commercial Arbitration and enforcement offoreign Arbitral Awards as also to define the law relating to conciliation and for mattersconnected herewith or incidental thereto. ( 31 ) SECTION 9 of the arbitration is a replica of Section 9 of the UNCITRAL Modellaw on International Commercial Arbitration, Article 9 of UNCITRAL Model Lawon International Commercial Arbitration reads as under : "it is not incompatible with an arbitration agreement for a party to request, beforeor during arbitral proceedings, from a Court an interim measure of protectionand for a Court to grant the protection. " ( 32 ) THE intention of the Legislature in enacting or incorporating Section 9 is clearand explicit, that the party before arbitral proceedings or at any time after making ofthe award but before enforcement can apply to the Court for interim relief under Section 9 which reads as under :"9. " ( 32 ) THE intention of the Legislature in enacting or incorporating Section 9 is clearand explicit, that the party before arbitral proceedings or at any time after making ofthe award but before enforcement can apply to the Court for interim relief under Section 9 which reads as under :"9. Interim measures by Court--A party may, before or during arbitral proceedingsor at any time after the making of the arbitral award but before it is enforced inaccordance with Section 36, apply to a Court : (i) for the appointment of a guardian for a minor or a person of unsound mindfor the purpose of arbitral proceedings; or (ii ). for an interim measure of protection in respect of any of the followingmatters, namely - (a) the preservation, interim custody or sale of any goods which are thesubject-matter of the arbitration agreement; (b) securing the amount in dispute in the arbitration; (c) the detention, preservation or inspection of any property or thingwhich is the subject-matter of the dispute in arbitration, or as towhich any question may arise therein and authorising for any of theaforesaid purposes any person to enter upon any land or buildingin the possession of any party, or authorise any samples to be takenor any observation to be made, or experiment to be tried, which maybe necessary or expedient for the purpose of obtaining full informa-tion or evidence; (d) interim injunction or the appointment of a Receiver; (e) such other interim measure of protection as may appear to the Courtto be just and convenient, and the Court shall have the same powerfor making orders as it has for the purpose of, and in relation to, anyproceedings before it. " ( 33 ) MR. Desai placed reliance on the judgment of this Court, i. e. , Dominant Offsetprivate Limited, v. Adamovske Strojirny A. S. , 1997 (2) Arbitration Law Reporters 335where the learned Single Judge of this Court while dealing with somewhat similar factsand circumstances has categorically come to the conclusion that conjoinit reading of thedifferent clauses of Section 2 includes an International Commercial Arbitration : "a conjoint reading of all the aforementioned provisions clearly indicate that Subsection (2) of Section 2 is an inclusive definition and that it does not exclude theapplicability of Part 1 to those arbitrations which are not being held in India. Theaforesaid interpretation gets support from the provisions of Sub-section (5) ofsection 2 which provides that Part I shall apply to all arbitrations and to allproceedings relating thereto which would also, in my considered opinion,include an International Commercial Arbitration. "( 34 ) MR. Desai submitted that in view of the authoritative pronouncement, whichaccording to him is the correct interpretation of law. Part i also applies to thosearbitrations, where the venue of arbitration is outside India. ( 35 ) MR. Desai submitted that in any event, the Court has inherent powers to grantinterim relief under the Arbitration Act. He placed reliance on the judgment of thebombay High Court at Panaji Bench, Goa, i. e. , Prime International Limited v. M. V. Mariner IV and Others. ( 36 ) HE also placed reliance on the judgment of the Supreme Court, namely, Rajnibai (Smt.) @ Mannubai v. Kamla Devi (Smt.) and Others, (1996) 2 Supreme Court Cases225. Their Lordships of the Supreme Court in this judgment observed as under : "admittedly, the appellant is in possession of the property. In view of hisapprehension that there is a threat to his possessions, his only remedy would bewhether he will be entitled to the declaration sought for. When he seeks to protecthis possession, if he is otherwise entitled according to law, necessarily the Courthas to consider whether protection is to be given to him pending the suit. Merely,because there is no dispute as regards the corporeal right to the property, it doesnot necessarily follow that he is not entitled to avail of the remedy under Order39, Rules 1 and 2 CPC. Even otherwise also, it is settled law that under Section 151,cpc, the Court has got inherent power to protect the rights of the parties pendingthe suit. Under these circumstances, the view expressed by the High Court thatapplication itself is not maintainable is clearly illegal and erroneous. The application under Order 39, Rules 1 and 2 is maintainable. " ( 37 ) HE also placed reliance on Mohd. lkram Hussain v. The state of Uttar Pradeshand Others, AIR 1964 Supreme Court 1625. He has particularly drawn my attention toparagraphs 18 and 19 of the said judgment. In this judgment their Lordships of thesupreme Court observed that :"all procedure is always open to a Court which is not expressly prohibited. lkram Hussain v. The state of Uttar Pradeshand Others, AIR 1964 Supreme Court 1625. He has particularly drawn my attention toparagraphs 18 and 19 of the said judgment. In this judgment their Lordships of thesupreme Court observed that :"all procedure is always open to a Court which is not expressly prohibited. " ( 38 ) WE also placed reliance on Manohar Lal Chopra v. Rai Bahadur Rao Raja Sethhiralal, AIR 1962 Supreme Court 527. While interpreting Section 151 of the Code ofcivil Procedure, Their Lordships of the Supreme Court laid down :"section 151 itself says that nothing in the Code shall be deemed to limit orotherwise affect the inherent power of the Court to make orders necessary for theends of justice. In the face of such a clear statement, it is not possible to hold thatthe provisions of the Code control the inherent power by limiting. it or otherwiseaffecting it. The inherent power has not been conferred upon the Court, it is apower inherent in the Court by virtue of its duty to do justice between the partiesbefore it. Further, when the Code itself recognizes the existence of the inherentpower of the Court, there is no question of implying any powers outside the limitsof the Code. ( 39 ) HE also placed reliance on the judgment of the Supreme Court, Munsi Ramv. Banwari Lal (deceased), AIR 1962 Supreme Court 903. The relevant portion readsas under:"the power to record such an agreement and to make it a part of the decree,whether by including it in the operative portion or in the schedule to the. decree,in our opinion, will follow from the application of the Code of Civil Procedure bysection 41 of the Arbitration Act and also Section 141 of the Code. " ( 40 ) MR. Desai placed strong reliance on the celebrated case of Channel Tunnelgroup Ltd. and Ors. v. Balfour Beatty Construction Ltd. and Others, (1993) 1 All. ER 664. The House of Lords had clearly observed that the Courts have power to grantinterim injunction in arbitration matters and the domestic Courts have the jurisdictioneven where the venue of the arbitration is outside. The relevant paras are reproducedas under: " (1) The Court had power pursuant to its inherent jurisdiction to grant a stayof an action brought before it in breach of an agreed method of resolvingdisputes by some other method. The relevant paras are reproducedas under: " (1) The Court had power pursuant to its inherent jurisdiction to grant a stayof an action brought before it in breach of an agreed method of resolvingdisputes by some other method. Furthermore, a stay of the appellants action ought to be granted because the parties were large commercialenterprises negotiating at arm s length in the light of long experience ofconstruction contracts which had dearly decided that the two-stageprocedure, despite its potential weaknesses, had a balance of practicaladvantage over the alternative of bringing proceedings in the nationalcourts and because, having agreed to take their complaints to experts andif necessary Arbitrators, they should be required to their chosen Tribunalto settle their commercial differences. " "where the Court made an order staying an action pending a foreignarbitration it had no power under Section 12 (6) of the 1950 Act to grant aninterim injunction since none of the powers conferred on the Court by thatact applied to arbitrations conducted abroad under a law other thanenglish law. Accordingly, the chosen curial law of the arbitration beingbelgian law the Court had no power under Section 12 (6) to grant an interiminjunction requiring the respondents to continue work on the coolingsystem pending the decision of the penal or the Arbitrators. (3) The Court had power to grant an interlocutory injunction under Section37 of the Supreme Court Act, 1981 in support of a cause of action whichthe parties had agreed should be the subject of a foreign arbitration,notwithstanding that proceedings in England had been stayed undersection I of the 1975 Act so that the agreed method of adjudication shouldtake place, since the cause of action remained potentially justiciable beforethe English Court despite the stay. Accordingly, although the commencement of the action was a breach of the arbitration agreement, so that therespondents were not properly before the Court, the Court had powerunder Section 37 of the 1981 Act to grant an interlocutory injunction toprevent the respondents stopping work on the cooling system. However,as a matter of discretion the injunction sought by the appellants would notbe granted because the injunction sought was the same relief which wouldbe claimed from the panel and the Arbitrators and therefore if the Courtwere to grant the injunction it would largely pre-empt the decision of thepanel and Arbitrators. However,as a matter of discretion the injunction sought by the appellants would notbe granted because the injunction sought was the same relief which wouldbe claimed from the panel and the Arbitrators and therefore if the Courtwere to grant the injunction it would largely pre-empt the decision of thepanel and Arbitrators. " ( 41 ) IT is submitted that the Channel Tunnel (Supra) judgment has been followed inthe recent celebrated judgment of the Supreme Court, Sundram Finance Limited of NEPCIndia Limited. ( 42 ) MR. Desai also submitted that the ouster of jurisdiction has to be strictlyconstrued by the Civil Courts. He placed reliance on Richpal Singh and Others etc. v. Dalip, AIR 1987 Supreme Court 2205 in support of his contention. In paragraphs 12 and13 of this judgment, the Court observed as under : "where there is an express bar of the jurisdiction of the Court, an examination thescheme of the particular Act to find the adequacy or the sufficiency of theremedies provided may be relevant but is not decisive to sustain the jurisdictionof the Civil Court. Where there is no express exclusion the examination of the remedies and thescheme of the particular Act to find out the intendment becomes necessary andthe result of the inquiry may be decisive. In the latter case it is necessary to see ifthe statute creates a special right or a liability shall be determined by the Tribunalsso constituted, and whether remedies normally associated with actions in Civilcourts are prescribed by the said statute or not. " ( 43 ) HE also placed reliance on Smt. Bismillah v. Janeshwar Prasad and Others, (1990) I Supreme. Court Cases 207 in which the Court observed as under :"it is settled law that the exclusion of the jurisdiction of the Civil Court is not tobe readily inferred, but that such exclusion must either be explicitly expressedor clearly implied. The provisions of a law which seek to oust the jurisdiction ofcivil Court need to be strictly of Civil Court need to be strictly construed. Section331 of the Act has been the subject of series of pronouncements of the High Courtas to the circumstances and the nature of the suits in which its exclusionary effectoperates. The provisions of a law which seek to oust the jurisdiction ofcivil Court need to be strictly of Civil Court need to be strictly construed. Section331 of the Act has been the subject of series of pronouncements of the High Courtas to the circumstances and the nature of the suits in which its exclusionary effectoperates. Distinction was sought to be drawn between the class of cases wherethe binding effect of a deed had to be got rid of by an appropriate adjudicationon the one hand and the class of cases in which a transaction could be said to bevoid in law where what the law holds to be void, there is nothing to cancel or setaside on the other. In the former case, it was held, a suit was cognizable by the Civilcourt while in the latter, it was not, it being open to the statutory authority to takenote of the legal incidents of what was non est. " ( 44 ) MR. Desai, the learned Counsel for the petitioners has also placed reliance ondhulabhai etc. v. State of Madhya Pradesh and Another, AIR 1969 Supreme Court 78. The Court in this judgment observed that : " (1) Where the statute gives a finality to the orders of the special Tribunals thecivil Court s jurisdiction must be held to be excluded if there is adequateremedy to do what the Civil Courts would normally do in a suit. Suchprovision, however, does not exclude those cases where the provisions ofthe particular Act have not been complied with or the statutory Tribunalhas not acted in confirmity with the fundamental principles of judicialprocedure. (2) Where there is an express bar of the jurisdiction of the Court, an examination of the. scheme of the particular Act to find the adequacy or thesufficiency of the remedies provided may be relevant but is not decisiveto sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies andthe scheme of the particular Act to find out the intendment becomesnecessary and the result of the inquiry may be decisive. Where there is no express exclusion the examination of the remedies andthe scheme of the particular Act to find out the intendment becomesnecessary and the result of the inquiry may be decisive. In the latter caseit is necessary to see if the statute creates a special right or a liability andprovides for the determination of the right or liability and further laysdown that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normallyassociated with actions in Civil Courts are prescribed by the said statuteor not. (3) Challenge to the provision of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Courtcannot go into that question on a revision or reference from the decisionof the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorarimay include a direction for refund if the claim is clearly within the timeprescribed by the Limitation Act but it is not a compulsory remedy toreplace a suit. (5) Where the particular Act contains no machinery for refund of tax collectedin excess of constitutional limits of illegally collected a suit lies. Thequestions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit docs not lie if theorders of the authorities are declared to be final or there is an expressprohibition in the particular Act. In either case the scheme of the particularact must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the Civil Court is not readily to beinferred unless the conditions above set down apply. " ( 45 ) RELIANCE has also been placed by Mr. Desai on State of Tamil Nadu v. K. L. M. Ramamurthy and Others, (1985) 4 Supreme Court Cases 10. The relevant portion of thesaid judgment reads as under : "having regard to the principle stated by this Court while enunciating the firstproposition in Dhulabhai case it is clear that even where the statute has givenfinality to the orders of the special Tribunal the Civil Court s jurisdiction can beregarded as having been excluded if there is adequate remedy to do what the Civilcourt would normally do in a suit. In other words, even where finality is accordedto the orders passed by the special Tribunal one will have to see whether suchspecial Tribunal has powers to grant reliefs which Civil Court would normallygrant in a suit and if the answer is in the negative it would be difficult to implyor infer exclusion of Civil Court s jurisdiction. " ( 46 ) MR. Desai placed reliance on an unreported judgment dated 4. 9. 1998 of themadras High Court delivered in O. A. Nos. 653 of 1996 and 654 of 1996 and 104 of 1997and A. No. 1464 of 1997 in C. S. No. 802 of 1996, Bass International v. Appu Hotels. Inthis case injunction was granted restraining the defendant from using informationprovided by Holiday Inn Hotels. holiday Inn System which includes drawings. Hotelinterior fitout information. Hotel operating and management system, computersystems, room reservation technology etc. for finalising, completing, furnishing and/or operating the Hotel. Mr. Desai submitted that the injunction has been granted by themadras High Court in the facts which are quite akin and similar to the present case. ( 47 ) HE also relied on a judgment of this Court in Burlington Home Shopping Put. Ltd. v. Rajnish Chibber and Another, 61 (1996) Delhi Law Times 6. In this case the Courtgranted injunction where infringement of confidentiality and copyright was involved. ( 48 ) HE also submitted Warner Brothers Pictures Inc. v. Nelson, (1936) 3 All. E. R. 160. In this case also the injunction was granted where infringement of confidentialityclause was involved. He also relied on the English judgment, i. e. . National Broach andmachine Co. v. Churchill Gear Machines Ltd. , (1965) 2 A. E. R. 961. Reliance has alsobeen placed on American Cynamid v. Ethicon, (1975) I All. E. R. 504. In this case alsothe infringement of legal rights injunction was issued pending the trial. ( 49 ) MR. Desai also placed reliance on the judgment of the Supreme Court, i. e. ,niranjan Shankar Golikari v. Century Spinning and Manufacturing Co. Ltd. , AIR 1967sc 1098. In this case Their Lordships of. the Supreme Court held that negativeconvenants that employee would not, during contract period, engage in trade orbusiness or would not get himself employed by any other master for whom he wouldperform similar or substantially similar duties, is not restraint of trade unless thecontract is unconscionable or excessively harsh or one sided. In this case Their Lordships of. the Supreme Court held that negativeconvenants that employee would not, during contract period, engage in trade orbusiness or would not get himself employed by any other master for whom he wouldperform similar or substantially similar duties, is not restraint of trade unless thecontract is unconscionable or excessively harsh or one sided. The Court while grantinginjunction against the appellant, restricted as to time, nature of employment and as toarea could not be said to be too vide, or unreasonable or unnecessary for the protectionof the interests of the respondent. ( 50 ) HE placed reliance on another judgment of the Supreme Court, i. e. Gujaratbottling Co. Limited and Others v. Coca Cola Co. and Others, (1995) 5 Supreme Courtcases 545. In this case injunction was granted for enforcing the negative stipulation inthe contract. The grant of injunction was justified as it was intended to prevent Pepsi,which came in control of GBC,to gain advantage over Coca Cola.