JUDGMENT M.M. Ghildiyal, J. 1 Heard Sri. L.P. Naithani, Sr. Advocate, assisted by Sri J.P. Joshi, learned Counsel for the appellant and Sri Arvind Vashishtha, learned Counsel for the respondent. 2. All the appeals are preferred against the judgment and order dated 30-9-2006 passed by learned District Judge, Dehradun in O.S. Nos. 17 to 22 of 2006. 3. The learned District Judge has disposed of all the aforesaid seven applications under Section 9 of the Arbitration and Conciliation Act, 1996 by a common judgment, thus, all appeals are also being disposed of by common judgment. 4. Brief facts of the case are that Oil and Natural Gas Corporation (hereinafter referred to as Corporation) is a corporate body registered under Indian Companies Act, 1956 having its registered Office at 124, Jeevan Bharti Building, Tower - II, Indira Chowk, New Delhi -1 and is having its corporate office at Tel Bhawan, Dehradun Uttaranchal. 5. The Corporation floated tenders for execution of various work such as civil, electrical, horticulture, housekeeping, maintenance of office and residential colonies etc. The respondents submitted their tenders, which were accepted and in pursuance thereof an agreement was executed in between the corporation-appellant and respondents. Respondents started work in terms of the agreement, however, by notice dated 11-9-2006, the corporation directed the respondents not to carry out further work. Aggrieved with the action of the appellant, since there is clause for arbitration in the agreement executed between the corporation and the respondents, preferred an application under Section 9 of Arbitration and Conciliation Act, 1996 before District Judge, Dehradun. 6. Objections were filed by the appellant against the application of the respondents filed under Section 9 of the Arbitration and Conciliation Act, 1996. 7. Learned District Judge vide judgment and order dated 30-9-2006 allowed the application of the respondents partly with a direction to the applicants/respondents to evoke their right and take necessary steps to approach the Arbitrator as agreed by there under Clause 25 of the agreement. In the meantime, corporation was also restrained by the learned District Judge from creating third party right/interest in the contract. Aggrieved with this order corporation has preferred these appeals. 8. We have heard Sri. L.P. Naithani, Sr. Advocate, assisted by Sri. J.P. Joshi, learned Counsel for the appellant and Sri. Arvind Vashishtha, learned Counsel for the respondent. 9. Learned Counsel for the appellant has challenged the impugned order on various counts. Aggrieved with this order corporation has preferred these appeals. 8. We have heard Sri. L.P. Naithani, Sr. Advocate, assisted by Sri. J.P. Joshi, learned Counsel for the appellant and Sri. Arvind Vashishtha, learned Counsel for the respondent. 9. Learned Counsel for the appellant has challenged the impugned order on various counts. First, that Clause 13 of the agreement stipulates that at any time after commencement of the work, department may, for reasons whatsoever, notify application for not carrying the whole work or part thereof. The curtailment or termination of the work may be on account of any reason including administrative reasons and accordingly the appellant has rightly issued notice to the respondents restraining them from carrying out further work by invoking Clsuse 13 of the agreement and as such, the notice dated 11-9-2006 terminating the contract with effect from 30-9-2006 is in accordance with Clsuse 13 of the agreement. He has further submitted that once the parties have entered into agreement and agreed to the terms and conditions the parties cannot reprobate or approbate from their earlier stands. They have to adhere to the terms and conditions of the agreement. It was stated in the notice dated 11-9-2006 that the contractor shall be entitled for full payment as per rates and terms and conditions of the agreement towards the work done up to 30-9-2006. 10. Learned Counsel for the appellant has further submitted that there is no dispute relating to work between appellant and the respondents under the ambit of contract agreement which can be referred to arbitration as provided in Clsuse 25 of the agreement. The respondents have no right to invoke Clsuse 25 of the said agreement. The application under Section 9 was barred by principle of estoppel and acquiescence and consequently, respondents have no right to invoke Section 9 of the Arbitration and Conciliation Act, 1996. Since as many as 19 contracts were enforced the appellant in an endeavour to provide service terms facilities, management considered to have comprehensive facilities management contract for house keeping, civil, electrical, horticulture etc. for which a committee was constituted to study the matter. M/s. BVG India Limited a leading facilities solution provider, who are providing similar services to Oil and Natural Gas Commission, Mumbai, Parliament House, Mantralaya, Airport Authority of India, BEL, Tata Motors Limited, Pune, Bajaj Auto, Pune, ITC, Bangalore, Mahindra and Mahindra Limited, was contacted for taking up assignment. for which a committee was constituted to study the matter. M/s. BVG India Limited a leading facilities solution provider, who are providing similar services to Oil and Natural Gas Commission, Mumbai, Parliament House, Mantralaya, Airport Authority of India, BEL, Tata Motors Limited, Pune, Bajaj Auto, Pune, ITC, Bangalore, Mahindra and Mahindra Limited, was contacted for taking up assignment. The said company submitted its techno commercial bid for taking up assignment and work has been awarded to M/s. BVG India Limited on nomination basis for a period of six months. Thereafter, open tenders will be finalized. As per item F3 of book of delegation of power Director (HR) is competent authority to approve the work of the said company on nomination basis and as such, the action of the appellant terminating the contract as per Clsuse 13 of the agreement and awarding-the work of M/s. BVG India Limited for a period of six months on nomination basis cannot be said at all as arbitrary on the part of the appellant. 11. Learned Counsel for the appellant has further pleaded that learned District Judge while allowing partly the petition of the respondents under Section 9 of the Arbitration and Conciliation Act, 1996 has exceeded in its jurisdiction in passing the impugned judgment by overlooking the objections of the appellant especially when the contract agreement is in respect of essential services like supply of water at residential colonies of the appellant, to the office of the appellant and also day to day maintenance, civil, electrical and the work has already been awarded and accepted by BVG India Limited and in fact M/s. BVG India Limited has started providing facilities to the appellant. 12. Learned Counsel for the appellant Sri L.P. Naithani has further submitted that while passing the interim injunction, learned District Judge has not considered at all the prima facie ingredient for granting interim injunction, such as prima facie case, balance of convenience and irreparable loss. 13. There is Clsuse 13 in the agreement, which gives power to the appellant to terminate the contract. 13. There is Clsuse 13 in the agreement, which gives power to the appellant to terminate the contract. Clauses 13 and 14 of the agreement are reproduced as under: Clause 13 : If at any time after the commencement of the work the Corporation shall for any reason whatsoever not require the whole work or part thereof specified in the tender to be carried out, the Engineer -in-Charge shall give notice in writing of the fact to the contractor who shall have no claim to any payment of compensation whatsoever on account of any profit or advantage which he might have derived from the execution of the work in full, but which he did not derive in consequence of the full amount of the work not having been carried out, neither shall he have any claim for compensation by reason of any alterations having been made in the original specifications, drawings, designs and instructions, which shall involve any curtailment of the work as originally contemplated. Provided that the contractor shall be paid the charges on the cartage of materials actually bona fide brought to the site of the work by the contractor and rendered surplus as a result of abandonment or curtailment of the work or any portion thereof and then taken back by the contractor, provided however, that the Engineer-in-Charge shall have in all such cases the option of taking over all or any such material at their purchase price or at local current rates whichever may be less. In the case of such stores having been issued from Corporation's Store, supervision, charges and storage charges shall be refunded in addition to the issue rate materials. In the case of such stores having been issued from Corporation's Store, supervision, charges and storage charges shall be refunded in addition to the issue rate materials. Clause 14 If it shall appear to the Engineer-in-Charge or his subordinate in charge of the work, that any work has been executed with unsound, imperfect, or unskillful workmanship or with materials of any inferior description, or that any materials or articles provided by him for the execution of the work are unsound or of a quality inferior to that contracted for or otherwise not in accordance with the contract, the contractor shall on demand in writing which shall be made within six months of the completion of the work from the Engineer-in-Charge specifically the work, materials of article complained of not withstanding that the same may have been specified in whole or in part, as the case may require or as the case may be remove the material or articles so specified and provide other proper and suitable materials and article at his own proper charge and cost, and in the event of his failing to do so within a period to be specified by the Engineer-in-Charge in his demand, aforesaid, then the contractor shall be liable to pay compensation at the rate of one percent, on the estimated amount put to tender for everyday not exceeding ten days while his failure to do so shall continue and in the case of any such failure the Engineer-in-Charge may rectify or remove, and re-execute the work or remove and replace with other, the materials or articles complained of as the case may be at risk and expense in all respect of the contractor. 14. Admittedly, it was not a case of inferior work as mentioned in Clause 14 of the agreement. We find merit in the submission of learned Counsel for the appellant that District Judge was not correct in applying Clause 14 of the agreement because Clause 14 would apply where the Engineer-in-charge finds that the work executed was of unsound, imperfect or unskilled workmanship or inferior with material. 15. We do not find force in the submission of learned Counsel for the appellant that Clause 25 of the agreement is not applicable which provides for arbitration. 15. We do not find force in the submission of learned Counsel for the appellant that Clause 25 of the agreement is not applicable which provides for arbitration. Clause 25 of the agreement is quoted as under: Clause 25 If any dispute, difference, question or disagreement shall, at any time, hereafter arises between the parties hereto or the respective representatives, or assigns in connection with or arising out of the contract, or in respect of meaning of specifications, design, drawings, estimates, schedules, annexures, orders, instructions, the construction, interpretation of the agreement, application of provisions thereof anything hereunder contained or arising hereunder or as to rights, liabilities or duties of the said parties hereunder or any matter whatsoever incidental to his contract or otherwise concerning the works of execution or before or after the completion or abandonment thereof shall be referred to the sole arbitration of the person appointed by ONGC Ltd. at the time of dispute. It will be no objection to any such appointment that the arbitrator so appointed is an employee of ONGC Ltd. or that he had to deal with the matters to which the contract relates and that in the course of his duties as ONGC Ltd.'s employee, he had expressed views on all or any of the matters in dispute or difference. If the arbitrator to whom the matter is originally referred dies or refuses to act or resigns for any reason from the position of arbitrator, it shall be lawful for the ONGC Ltd. to appoint another person to act as arbitrator in the manner aforesaid. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor if both the parties consent to this effect, failing which the arbitrator will be entitled to proceed de novo. It is further a term of this contract that no person other than the person appointed by a Director of the Corporation shall be act as arbitrator and that, if for any reason that is not possible the matter is not to be referred to the arbitration at all. The arbitrator(s) may, from time to time, with the written consent of all the parties to the contract enlarge the time for making and publishing the award. The arbitrator(s) may, from time to time, with the written consent of all the parties to the contract enlarge the time for making and publishing the award. It is a term of contract that party invoking arbitration shall specify the dispute or disputes to be referred to arbitration under the clause. It is also a term of the contract that the contractor shall not stop the work under this contract and the work shall continue as expected to continue whether the arbitration proceedings have commenced or not. The arbitrator shall be deemed to have entered on the reference on the date of this issue notice by him to both the parties for filing of the claims. The arbitrator shall give reasoned award in respect of each dispute or difference referred to him. The award as aforesaid shall be final and binding on all the parties to this contract in accordance with the law. It is also a term of the contract that if the contractor(s) do/does not make any demand for arbitration in respect of any claim(s) in writing within 90 days of receiving the intimation from the corporation that the bill is ready for payment, the claim of the contractor(s) will be deemed to have been waived and absolutely barred and the corporation shall be discharged and released of all liabilities under the contract in respect of these claims. The decision of the Superintending Engineer regarding the quantum of reduction as well as his jurisdiction in respect of reduced rates sub standard work, which may be decided to be accepted, will be final and would not be open to arbitration. The venue of the arbitration shall be Dehradun (U.A.), India. Subject as aforesaid, the provision of Indian Arbitration Act, 1996 and may any statutory modifications or re-enactments thereof and rules thereunder and for the time being, in force shall apply to the arbitration proceeding under this clause. 16. The said clause specifically provides that "any dispute, difference, question or disagreement arises at any time between the parties in connection with or arising out of contract...interpretation of agreement...shall be referred to the sole arbitrator." 17. Thus, the dispute has arisen between the parties on termination of contract of respondents and further interpretation of Clauses 13 and 14 was also involved for determining whether the notice was under Clause 13 or 14 of the agreement or both. 18. Thus, the dispute has arisen between the parties on termination of contract of respondents and further interpretation of Clauses 13 and 14 was also involved for determining whether the notice was under Clause 13 or 14 of the agreement or both. 18. The learned District Judge has rightly held that the respondents can evoke the Arbitration Clause. 19.We do not find any infirmity in the judgment and order passed by learned District Judge, Dehradun so far as the question of evoking the right and to take necessary steps to approach the Arbitrator as agreed by the parties under Clause 25 of the agreement is concerned. 20. However, the direction granting the injunction by learned District Judge re-straining the appellant from creating any third party right/interest with respect to the contracts is concerned learned Counsel for the appellant has submitted that in fact, the work has already been awarded to M/s. BVG Limited. This fact was brought to the notice of the Court by way of filing objection by the appellant against the application of the respondents filed under Section 9 of Arbitration and Conciliation Act, 1996. 21. Learned District Judge, without hearing the affected party, has granted the interim injunction restraining the corporation from creating any third party right/interest with respect to the contracts. Right of third party was already created and the same was brought to notice of learned District Judge. 22. Learned Counsel for the respondents Sri Arvind Vashishtha has submitted that since no assessment of work already executed can be done and further to preserve the contract money. Learned District Judge has rightly granted interim injunction. 23. Learned Counsel for the appellant has placed reliance on the judgment passed by Delhi High Court in the case of Marriott International Inc. and Ors. v. Ansal Hotels Limited and Anr. reported in 2000 (1) Arbitration Law Report page 45 : 2000 CLC 759 wherein the Court in Para 115 has held as under: On consideration of the totality of the facts and circumstances, the petitioners have not made out a strong prima facie case for grant of interim relief. The balance of convenience is also not in favour of the petitioners. The grant of any interim relief at this stage may cause irreparable injury to the respondents whereas petitioner can always compensated in terms of money. 24. The balance of convenience is also not in favour of the petitioners. The grant of any interim relief at this stage may cause irreparable injury to the respondents whereas petitioner can always compensated in terms of money. 24. In this case learned District Judge has not considered at all either of the ingredients whether prima facie case is in favour of the respondents or not ? He has also not considered the balance of convenience and the irreparable injury to be caused to the applicant in case injunction is not granted. From the fact of the case, it is clear that the contract was in respect of essential services and by restraining the respondents not to create third party interest definitely the appellant would suffer irreparable injury whereas respondents can always be compensated in terms of money. 25. For the reasons recorded above, appeals are allowed. Order dated 30-9-2006 passed by learned District Judge, Dehradun is hereby set aside. However, respondents may invoke arbitration Clause 25 of the agreement and appellant is directed to take immediate action on the application so moved by respondents.