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2005 DIGILAW 307 (CAL)

JITENDRA PRASAD SUKLA v. DIPAK ADAK

2005-05-05

ALOKE CHAKRABARTI, S.P.TALUKDAR

body2005
CHAKRABARTI, J. ( 1 ) THE case made out in the application for stay filed in the present appeal is that the appellant entered into an agreement on 7th may, 1999 with the respondent and the proforma respondents for development of the suit property. After the plan was sanctioned by the concerned municipal authorities a supplementary agreement was entered into by and between the appellant and the respondent on 15th January, 2001. The construction of the building was completed in terms of the said agreement and possession of the area in the constructed building was handed over to the respondents in accordance with the agreement. Necessary payments have been also made by the appellant to the respondents in terms of the said agreement. When the appellant was negotiating with the prospective buyers of the balance area of the constructed building, a proceeding was started before a learned Arbitrator in respect of which copy of the order passed by the learned Arbitrator and an application under Section 17 of the Arbitration and Conciliation Act, 1996 were served upon the appellant. The"appellant preferred an appeal being FMAT No. 4156 of 2004 against the said order dated 24th November, 2004 passed by the learned Arbitrator and an application for stay was also filed in connection with the said appeal. Ultimately the said appeal was disposed of by this bench. ( 2 ) THEREAFTER the respondent No. 1 filed an application under Section 26 of the said Act before the learned Arbitrator praying for appointment of expert for inspecting the suit premises in terms of the schedule annexed to the said application. An objection was filed by the appellant to the said application and thereafter the learned Arbitrator adjourned the hearing of the said application and made certain queries both from the appellant and from the claimants/respondents and being aggrieved by the said order dated 8th March, 2005, the present appeal was filed. ( 3 ) HEARD Mr. S. P. Roy Chowdhury, learned Advocate for the appellant and Mr. B. Mitra, learned Advocate for the respondent No. 1. ( 3 ) HEARD Mr. S. P. Roy Chowdhury, learned Advocate for the appellant and Mr. B. Mitra, learned Advocate for the respondent No. 1. ( 4 ) AT the initial stage of hearing, on behalf of the respondent No. 1 contention was made that the appeal itself is not maintainable as no such appeal lies under Section 37 of the said Act when the impugned order was passed by the Arbitral Tribunal on an application under Section 26 of the act and still now no final order has been passed under Section 26. ( 5 ) MR. S. P. Roy Chowdhury, learned Advocate for the appellant contended that the appeal is very much maintainable in view of the provisions of Clause (b) of sub section 2 of Section 37 as the impugned order amounts to an order for interim measure under Section 17 of the Act. Mr. Roy chowdhury drew the notice of fhis Court to the scope of Section 17 vis-avis section 9 of the Act and contended that such power to pass order as an interim measure by the learned Arbitrator is provided under Section 17 whereas similar power vests in Court under Section 9 of the Act. Mr. Roy chowdhury contended that the order impugned herein, is in aid of an order under Section 26 of the Act as an interim measure. ( 6 ) FURTHER contention of Mr. Roy Chowdhury is that in the impugned order no final relief was granted under Section 26, the order amounted to a refusal and therefore, appeal lies therefrom. It is further contended by Mr. Roy Chowdhury, that the learned Arbitrator had no jurisdiction to ask for submitting replies to the queries made in the impugned order in aid of relief sought for under Section 26 and it amounted to allowing the main relief in the name of passing an interim measure in aid thereof. ( 7 ) EXPLANATION 5 of Section 11 of the Code of Civil Procedure was also referred to for contending that there was no res judicata in the present facts. ( 8 ) MR. ( 7 ) EXPLANATION 5 of Section 11 of the Code of Civil Procedure was also referred to for contending that there was no res judicata in the present facts. ( 8 ) MR. B. Mitra, learned Advocate for the respondent No. 1 contended that the impugned order was not passed as an interim measure under Section 17 and it is not appealable under Section 37 as the provisions of Section 37 (2) (b) of the said Act do not apply in the present case. It is contended by mr. B. Mitra that the word 'may' used in Section 17 (2) has to be read as 'shall' in the present context. Reliance was placed on the judgment in the case of Prakash Kumar v. State of Gujarat reported in (2005)2 SCC 409 and J. P. Bansal v. State of Rajasthan reported in (2003)5 SCC 134 . ( 9 ) FURTHER contention of Mr. Mitra, learned Advocate for the respondent No. 1 is that prayers in the application under Section 26 do not contain one of interim measures and so appellant's contention on Section 26 is not acceptable. With regard to the contention of the appellant that the order impugned has to be treated as an order refusing the prayers, is not acceptable as even if such refusal is passed the same is against the respondent only on his application and on that ground the appellant cannot maintain the appeal. ( 10 ) WITH regard to scope of Section 9 of the Act, contention has been made taking the help from the dictionary meaning of the word from black's Law Dictionary, 6th Edition. Reliance was placed on the judgment in the case of MD, Army Welfare Housing Organisation v. Sumangal Services (P) Ltd. , reported in (2004)9 SCC 619 and Balram Kumawat v. Union of india, reported in (2003)7 SCC 628 . ( 11 ) IT has been argued by the learned Advocate for the respondent no. 1 that as there is no provision in the Arbitration Act, 1940 which is equivalent to the provisions contained in Section 37 (2) (b) of the 1996 Act, the interpretation of law made in various judgments in connection with the old Act of 1940, cannot be taken help of in deciding the present dispute. 1 that as there is no provision in the Arbitration Act, 1940 which is equivalent to the provisions contained in Section 37 (2) (b) of the 1996 Act, the interpretation of law made in various judgments in connection with the old Act of 1940, cannot be taken help of in deciding the present dispute. Further as the provisions of Code of Civil Procedure do not apply in a proceeding under the 1996 Act, the law contained in Order 26 of the Code of Civil Procedure, cannot be held applicable here. Reliance was placed on the judgment in the case of Nasiruddin v. Sita Ram Agarwal, reported in (2003)2 SCC 577 for contending that the literal meaning of an expression used in the 1996 Act, are to be applied. ( 12 ) AS there was no refusal of the order and only the disposal was postponed, the explanation 5 to Section 11 of the Code of Civil Procedure, cannot have any application. ( 13 ) ON merit, it has been contended by Mr. Mitra, learned Advocate for the respondent No. 1 that the impugned order was passed only in aid of the relief prayed for in the application under Section 26 and not an independent order and therefore, there is no reason for this Court to interfere with the same. ( 14 ) CONSIDERING the aforesaid contentions of the respective parties and perusing the materials on record, we find that present appeal was filed against the order of the learned Arbitrator directing both the parties to answer certain queries. Apparently the impugned order was not passed under section 26 of the Arbitration and Conciliation Act wherein an expert is to be appointed and admittedly expert has not yet been appointed. Considering the aforesaid circumstances of the case, it appears to us that the said order was passed as an interim measure in aid of the disposal of the proceeding under Section 26. After the impugned order is complied with by both the parties fully answering the queries, there may be a situation when the learned arbitrator will be able to decide the application under Section 26 on those materials. Therefore, treating impugned order as an under Section 17 we hold that present appeal is maintainable. After the impugned order is complied with by both the parties fully answering the queries, there may be a situation when the learned arbitrator will be able to decide the application under Section 26 on those materials. Therefore, treating impugned order as an under Section 17 we hold that present appeal is maintainable. ( 15 ) ON behalf of the respondent No. 1 number of judgments have been cited with regard to interpretation of statutes and laying down the basic rules thereof. As none of the propositions is in dispute and the matter can be decided without discussing such question of law, we have not discussed each such judgment separately. ( 16 ) WITH regard to merit of the impugned order, we find that the claimant/respondent No. 1 though admitted that he has got possession of some area in the constructed building, but he has not disclosed the actual area. From the contentions made on behalf of the respondent No. 1, it seems the dispute is being raised by him as regards formal handing over of possession and it shows that he is complaining against want of formalities in handing over of possession and not actual handing over of possession. To some extent same is the position of the respondent/developer who says that some portion of the constructed area has been handed over to the claimant but neither he disclosed the actual area of handing over nor he disclosed the materials showing such handing over. In such factual background when application was made under Section 26, we do not find there was any irregularity in learned Arbitrator's giving direction upon the parties to answer queries respectively put to the respective parties as an interim measure in aid of the final decision of application under Section 26 and therefore, we do not propose to interfere with the said order. Considering the queries also it appears to us that those are relevant queries in the factual background involved herein. ( 17 ) TIME to file counter claim before the learned Arbitrator is extended by two weeks as prayed for. ( 18 ) IN above view of the findings, no interference is made and the appeal is dismissed.