Judgment D.V. Shylendra Kumar, J. Appeal under Section 37(1)(a) of the Arbitration and Conciliation Act, 1996 (referred to as ‘the Act’ hereinafter), directed against the order dated 06.04.2010, passed in A.A.No.284/2010, allowing in part the appellant’s application made under Section 9 of the Act. The learned District Judge has granted prayer ‘D’ and rejected prayers ‘A’ to ‘C’, sought for in the application. 2. Appeal is for securing all the reliefs that had been sought for before the District Court, which are as under: PRAYER a) Issue an order of injunction restraining the Respondent, its agents assigns, subsidiaries or anyone claiming through or under it from independently bidding, entering into any negotiation(s), discussion (s) or agreements(s) with Coal India Limited or any other Company/entity/person in connection with Tender No.CIL/C2D/42 Cu M ER Shovel/2009-10/89 dated 07/12/2009 in respect of sale or purchase of 2 Nos. cu. Mtrs. Electric Mining Rope Shovels or any other tender or business covered under the T & CS Agreement within the Indian territory: b) Issue an order of injunction restraining the Respondent, its agents assigns, subsidiaries or anyone claiming through or under it from taking any action as held out in para 3 of the letter dated 08.01.2010 (enclosure to Document No.10) of Respondent in violation of the terms of the T & CS Agreement dated 02.09.1998 and amendments thereof, specifically Amendment No.4 dated 24.09.2004 entered into between Applicant and Respondent; c) Issue an order of injunction restraining the Respondent, its agents, assigns, subsidiaries or anyone claiming through or under it from competing with the Applicant in the territory namely, India, Nepal and Bhutan as specified in the T & CS Agreements with respect to manufacture, supply, service of equipment components, replacement components, spare parts to the suppliers in the territory for the following equipments: i) Agreement and Amendment No.1 dated 02.09.1998 in respect of Electric Mining Shovels namely: 182-M-HR17 (10 Cubic Mtrs), Walking Drag Lines; 7820-41, 7820-50 and Walking Drag Lines; ii) Amendment No.2 dated 16.11.1999 in respect of 295B Series Electric Mining Shovels -20 Cum; iii) Amendment No.3 dated 04.10.2002 in respect of 201M Electric Mining Shovels; iv) Amendment No.4 dated 24.09.2004 is respect of 495B Electric Mining Shovel. d) Issue an order of injunction restraining the Respondent, its agents assigns, subsidiaries or anyone claiming through or under it from taking any step, coercive or otherwise, in continuation of the alleged termination of T & CS Agreement in respect of 495B Electric Mining Shovel as held out under email dated 17.02.2010 and letter dated 16.02.2010 (Document No.14): 3. Appellant/Petitioner is aggrieved by the following order made by the learned Judge of the trial Court:- “40. Point No.5 In the result, in view of my answer to point Nos.1 to 4, I pass the following: ORDER 1. Petition filed by the petitioner under Section 9 of Arbitration and Conciliation Act, 1996 is allowed in part. 2. Petitioner’s prayer for temporary injunction to restrain respondent and his men from independently bidding and entering into any negotiations with Coal India Ltd., or any other company in respect of tender No.CIL/C2D/42 CU.M/2009-10/89 dated 07.12.2009 in respect of sale or purchase of 2 Nos.42 Cu.M. Electric Mining shovels, vide amendment No.4 is hereby rejected. 3. Similarly, petitioners prayer to restrain respondent and his men from taking any steps in continuation of the alleged termination of technical and component supply agreement in respect of 495B Electric mining Shovels is also rejected. 4. Respondent and his men are hereby restrained by an order of temporary injunction from competing with the-petitioner in territory, namely, India, Nepal and Bhutan as specified in the technical and component supply agreement with respect to manufacture, supply, service of equipment components replacement components, spare parts to the suppliers in the territory for the following equipments: i) Agreement and Amendment No.1 dated 02.09.1998 in respect of Electric Mining Shovels viz., 182-M-HR17 (10 Cubic Mtrs), Walking Drag lines, 7820-41, 7820-50 and Walking Drag lines, W-2000 as per Amendment No.1 dated 02.09.1998; ii) Amendment No.2 dated 16.11.1999 in respect of 293B Serious Electric Mining shovels 20 Cum; iii) Amendment No.3 dated 04.10.2002 in respect of 201 M Electric Mining Shovel; Till the matter is adjudicated by the arbitral Tribunal. 5. Both the parties to bear their own costs of these proceedings 4. 5. Both the parties to bear their own costs of these proceedings 4. The brief facts relating to above appeal are that the appellant and respondent had entered into an agreement dated 02.09.1998, document No.1 before the Court below, described as technical and component supply agreement for the purpose of enabling appellant-company to participate in tenders, notified by mining companies and for supply of machineries of the nature described in the schedule of the agreement. The agreement contains several clauses of reciprocity and the manner of sharing the fruits of the joint venture and that was to be worked out by the respondent a multi national foreign company, supplying not only the component parts of the ultimate product, which the appellant-company was supplying to its customers, but also providing technical know how for the purpose of incorporating the parts supplied by the respondent-company into indigenously produced as the end equipment, by the Appellant Company. 5. If one should have a look at the agreement, it is obvious that the mutual desire of the parties was that the respondent to sell the component parts and to provide the appellant with technical information and technical assistance relating to the manufacture and sale of the equipments. The respondent has reserved the right to sell the products, component parts and replacement parts manufactured outside of India to customers within the Territory in the event of Government tied credits, or projects and other special financing which require sourcing of products, component parts and replacement parts. In the event respondent’s sale to customers within the territory, it shall pay to the appellant a fee to be negotiated prior to such a sale on a case-to-case basis for sales assistance and post sales service. The controversy between the parties has arisen in the context of certain tenders floated by M/s.Coal India Limited, under which the respondent company was the potential bidder. The respondent a multi national foreign company in the event of sale customer within the territory specified in the agreement shall pay to appellant a fee to be negotiated prior to such sale on case to case basis for sales assistance and post service sale. The respondent – company has participated in the tenders and bagged the contract, in contravention of clause 2.1 of the agreement. The respondent – company has participated in the tenders and bagged the contract, in contravention of clause 2.1 of the agreement. It appears that it was at this stage, that the controversy arose and the version of the appellant as submitted by Sri S.S. Ramadas, learned Senior Counsel for the appellant is that the respondent-company has breached the terms of contract, particularly, clause 2.1 of the agreement dated 02.09.1998 as supplemented by the fourth amendment dated 24.09.2004, wherein, as between the parties the right to participate in such tenders was exclusively reserved in favour of the appellant-company. 6. It is submitted by Sri. S.S. Ramadas, learned senior Counsel for the appellant that the respondent – company has committed breach of this clause by prematurely terminating the contract on 16.02.2010, that too in part only with regard to the equipment covered under the fourth amendment to the main agreement, in respect of which equipment M/s. Coal India Limited had invited quotations to supply this equipment to them by intended sellers by inviting tenders and the respondent had ventured upon to participate in the tender floated by M/s.Coal India Limited, offering its quotations for the supply of equipment. 7. It is submitted with considerable force that these two acts constitute blatant violations of the agreement and clear breach of the agreement that the appellant has contemplated to invoke clause 19 of the agreement, providing for reference to arbitration and reading as under: “19. Arbitration.- Any dispute or difference arising under or in connection with or relating to this Agreement during the term hereof, or after termination or expiration, which cannot be settled by friendly negotiation and agreement between the parties shall be resolved by binding arbitration. The arbitration shall be held in Switzerland, and shall be conducted in conformity with the rules of Conciliation and Arbitration of the International Chamber of Commerce, Paris, France. The board of arbitration shall consist of three Arbitrators. Each party shall choose an Arbitrator and the third shall be chosen by the two selected by the parties. The third Arbitrator shall not be Indian. American or British. The board of arbitration shall consist of three Arbitrators. Each party shall choose an Arbitrator and the third shall be chosen by the two selected by the parties. The third Arbitrator shall not be Indian. American or British. If either party fails to choose an Arbitration within fourteen (14) days of the commencement of arbitration or, if the two such Arbitrators fail to choose a third arbitrator within fourteen days of their appointment, the Court of Arbitration shall at the request of any such party appoint the Arbitrator or Arbitrators to complete the board. Each party shall bear its own cost for such arbitration including the cost of Lawyers, attendance at meetings or conference of the arbitration proceedings and the production of any witnesses and documentary evidence to substantiate and support its claims. The cost of the third arbitrator shall be assessed by the Arbitration board in its sole discretion judgment upon the award may be entered in any Court having competent jurisdiction and shall be final. The Courts of Switzerland shall have no jurisdiction to determine any question of law arising in the course of arbitration on or in connection with this Agreement or to hear any appeal on any question of law arising out of any award. 8. the breaches committed on the part of respondent-company in not abiding by the terms of the agreement and in such circumstances, it has become necessary for the appellant-company to approach the Civil Court in a petition under Section 9 of the Act for the purpose of ensuring that the subject-matter of the dispute between the parties sustained during contemplated arbitration proceedings and prior to the starting of the Arbitration proceedings. Section 9 of the Act reads as under: ”9. Interim measures etc., by Court: A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a court;- i. for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or ii. for an interim measure of protection in respect of any of the following matters, namely:- a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement; b) securing the amount in dispute in the arbitration; c) the detention, preservation or inspection of any property or thing which is the subject-matter or the dispute in arbitration, or as to which any question may arise therein and authorizing for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorizing any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; d) interim injunction or the appointment of a receiver; e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it”. 9. The above provision having enabled a person like the appellant to seek relief before the civil Court the appellant made an application to the civil Court seeking for the reliefs as indicated above. 10. On the presentation of the petition under Section 9 of the act emergent notice was issued to the respondent and the petition was contested. 11. The learned Judge of the trial Court in the wake of rival pleas, formulated the points for determination as under: (1) Whether this Court has got jurisdiction to try the petition? (2) Whether the petitions has made out prima facie case in his favour? (3) Whether the balance of convenience lies in his favour? (4) Whether the petitioner will be put to irreparable loss and hardship if an order of temporary injunction is not granted? (5) What order?” 12. the learned Trial Judge on appreciation of the contentions based on the pleadings and with reference to the terms of the agreement entered into between the parties opined all the points in the affirmative but rejected reliefs ‘A’ to ‘C’ and granted relief ‘D’. Being aggrieved by rejection of reliefs A to ‘C’ the appellant is before us. 13. We have already noticed the submissions made by Sri. Being aggrieved by rejection of reliefs A to ‘C’ the appellant is before us. 13. We have already noticed the submissions made by Sri. S.S. Ramadas, learned Senior Counsel appearing for the appellant, who has also taken us through the order passed by the learned Trial Judge. 14. We find the learned Trial Judge has applied the relevance tests for the purpose of considering the order in the nature of restraint in terms of the provisions of Order 39 Rules 1 and 2 of the Code of Civil Procedure. We also notice the relief is in the nature of temporary injunction in terms of provisions of order 39 Rules 1 & 2 of C.P.C. 15. The principles of law governing grant or refusal of temporary injunction has been emphatically and clearly enunciated by various High Courts and by the Supreme Court, and for grant of a relief of this nature the principles are that the Court should consider (i) as to whether the plaintiff/petitioner has placed material to make out a prima facie case for grant of relief; (ii) whether the balance of convenience lies in favour of the party in whose favour balance tilts for granting or refusal of relief and (iii) above all even assuming these two requirements are met, whether the plaintiff/petitioner has established that if the relief is declined, irreparable loss and injury will be caused to the party seeking the relief of temporary injunction. (See decision in American Cyanamid Vs. Ethicon (1975) 1 ALL Er 504, which was followed by Supreme Court of India in several cases including the recent decision in Transmission Corporation of A.P. Ltd., Vs. Lanco Kondapalli Power (P) Ltd., (2006) 1 SCC 5401. 16. We find that the learned Trial Judge, has in the wake of these settled principles and on applying them to the fact situation, has found that the respondent in fact has unilaterally terminated the contract insofar as it relates to the equipment covered under the fourth amendment i.e., additional machineries, which had been subsequently included, in terms of the fourth amendment dated 24.09.2004, which means agreement between parties insofar as it relates to supplementary provisions as far as fourth amendment dated 24.09.2004 stood terminated and will not govern the parties any more is the understanding and intention of the respondent. 17. 17. Considering this aspect, the learned Trial Judge accepting the case of the appellant, granted 4th relief sought for by the petitioner and declined to grant reliefs 1 to 3 of the application. 18. As indicatedearlier, Sri. S.S.Ramadas, learned Senior Counsel has vehemently urged that the learned Trial Judge has failed to notice the exclusivity clause in favour of the appellant-company and has also ignored the preemptive manner in which the respondent-company has acted in unilaterally terminating the contract in part. 19. It is also submitted that the findings recorded by the learned Trial Judge regarding termination of contract in part is erroneous as the determination of validity of termination of contract is not within the domain of the Civil Court and the same has to be examined by the Arbitrator. 20. We have examined the submissions in the context of the appeal memo and in the background of the controversy that has arisen between the parties. In an appeal of this nature, we are not inclined to examine in great detail the merits of all these aspects, as it is not necessary in this appeal. 21. The learned Trial Judge for the purpose of examining the prima facie case has noticed the fact that the respondent-company has terminated the contract albeit in part, which fact is not in dispute between the parties. The dispute is with regard to the legality of such termination. 22. We do not find from the order that the learned Trial Judge has opined in this aspect to the extent of preempting the Arbitrator to go into this aspect. Be that as it may, assuming that the learned Trial Judge has held so while passing the impugned order, as it is only by way of considering the prima face merits of the case for passing an order in the nature of a temporary injunction an interim measure for retaining or sustaining the subject-matter, pending contemplated arbitration proceedings. It is only for this limited purpose and not as conclusive order on the validity of partial termination of the agreement and of course definitely does not fetter the Arbitrator, while examining the dispute. 23. Sri. It is only for this limited purpose and not as conclusive order on the validity of partial termination of the agreement and of course definitely does not fetter the Arbitrator, while examining the dispute. 23. Sri. D.N. Nanjunda Reddy, learned Senior Counsel appearing on behalf of the respondent, who has entered caveat does not dispute this legal position and would assure this Court that respondent would put forth its case as if proceedings are initiated only before the Arbitrator, without taking shelter under the impugned order, insofar as it relates to the validity of partial termination of the agreement. 24. Insofar as other submissions made by Sri. S.S. Ramadas, learned Senior Counsel for the appellant, we find there is no error much less an error warranting interference in this appeal under Section 37(1)(a) of the Act. In fact, the learned Trial Judge has applied his mind in the context of the relevant terms between the parties. A breach of contract is one, which give raise to an action to work out the remedies, in terms of damages and claim commensurate compensation is the settled position in law. We cannot characterize he impugned order as one bad in law. 25. The learned Trial Judge has neither ‘committed any perversity nor acted capriciously warranting interference in passing the impugned order. 26. We may also observe that the reliefs sought for by the appellant herein, who is the petitioner before the trial court in terms of prayers ‘A’ to ‘C’, are not the reliefs which are available under Section 9 of the Act either to the petitioner or to the respondent. In a matter of this nature, if the respondent has committed any breach of terms of contract, it is for the petitioner/appellant to work out remedies in terms of the agreement but after calling in aid other relevant laws governing the matter. This being the situation there is absolutely no scope for interference. 27. Therefore appeal is dismissed at the stage of admission.