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2000 DIGILAW 276 (CAL)

ABN AMRO BANK v. SASWATA SEN

2000-06-07

ARUNABHA BARUA, V.K.GUPTA

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V. K. Gupta, Arunabha Barua ( 1 ) THIS appeal is directed against the order dated January 4, 2000, passed by the learned judge, 2nd Bench, City Civil Court, Calcutta, whereby in the course of an application filed before him under Section 9 of the Arbitration and Conciliation Act, 1996, he issued an ad interim injunction restraining the appellant herein from disposing of the vehicle in question till the next date. ( 2 ) THE only ground urged before us today by the learned advocate appearing for the appellant while assailing the impugned order is that the learned court below had no jurisdiction to pass the aforesaid order because there did not exist any arbitration agreement between the parties and in the absence of any arbitration agreement between the parties, the application under Section 9 of the Act was not maintainable and therefore the court below should not have taken cognizance of any such application, nor should it have passed an order of the aforesaid nature. ( 3 ) WE have been taken through the application filed by the respondent under Section 9 of the Act before the court below and we find that the aforesaid submission of the learned advocate for the appellant is correct because in the application itself there is no mention whatsoever, nor any murmur or even a whisper about the existence of any arbitration agreement between the parties. Actually after we had gone through the copy of the application under Section 9 of the Act, we felt bewildered as to why, in the absence of any arbitration agreement did it occur to the respondent-petitioner to invoke under Section 9 of the Act and to move an application under that provision for any relief. It is an undisputed proposition of law that Section 9 of the Act can be invoked or made applicable by a petitioner only if, between the parties, an arbitration agreement exists and it is only in furtherance of the objectives contained in the said arbitration agreement that a party can approach the court and ask for any one of the reliefs as may be permissible on the merits of the case on the terms indicated in Section 9 of the Act. Undoubtedly, if there is no arbitration agreement between the parties, Section 9 is not at all applicable nor can it be attracted in any situation. Undoubtedly, if there is no arbitration agreement between the parties, Section 9 is not at all applicable nor can it be attracted in any situation. Why did the petitioner-respondent therefore in the first place choose to invoke Section 9 of the Act is not at all understandable nor has the learned advocate for the respondent-applicant been able to explain as to why did the applicant do so in the court below. That is one aspect of the matter. ( 4 ) EQUALLY amazing is the fact as to why did the learned court below entertain the application under Section 9 of the Act and not only that, why did it go so far as to grant an ad interim ex parte injunction in favour of the petitioner when even in the application itself the petitioner had not pleaded or averred that an arbitration agreement existed between the parties. This court has repeatedly held that the existence of an arbitration agreement is a sine qua non to the invocation and applicability of Section 9 of the Act and that when an arbitration agreement does not exist, Section 9 cannot be attracted at all. To ensure that orders under Section 9 of the Act are passed appropriately, therefore, it is not only incumbent upon every petitioner to plead in any every application under Section 9 that an arbitration agreement exists between the parties, but also to annex with the application the said agreement in original or a copy thereof. It is, therefore, accordingly also a corresponding duty of the court entertaining such an application to ensure that such requirement of law has duly been complied with before it proceeds to take cognizance of such an application and pass appropriate order, These are indeed mandatory requirements of law. We are very sorry to say that the learned court below, perhaps without any application of mind, overlooked to apply this mandatory requirement of law and mechanically went about in granting an ad interim injunction against the respondent in an application under Section 9 of the Act when admittedly, on the own showing of the petitioner itself that did not exist any arbitration agreement between the parties. ( 5 ) WE are very sure that in future learned courts will not commit this error again. ( 5 ) WE are very sure that in future learned courts will not commit this error again. To achieve this objective therefore we direct the learned Registrar General of this court to circulate a copy of this judgment to all the courts in the State of West Bengal ( 6 ) BASED upon the aforesaid observations, therefore, the appeal is allowed along with the application for stay and the order under appeal is set aside with all consequences. The respondent shall pay a token costs of Rs. 500 to the appellant.