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2013 DIGILAW 26 (RAJ)

Mewar Food Pvt Ltd v. Jaipur Zila Dugdh Utpadak Sahkari Sangh Ltd.

2013-01-04

AJAY RASTOGI, BELA M.TRIVEDI

body2013
JUDGMENT 1. 1. The instant intra court appeal has been filed against the order of the learned Single Judge dated 4th December, 2012 modifying the order of the Addl. District Judge dated 18th May, 2009 passed on an application filed by the appellant under Section 9 of the Arbitration and Conciliation Act, 1996. 2. The learned Single Judge after hearing counsel for the parties modified the order of the Ld. Trial Judge in exercise of its power under Articles 226 and 227 of the Constitution balancing equities of the parties. 3. Counsel for the appellant vehemently submits that a remedy of appeal to a party affected against an order passed by the learned trial court under Section 9 of the Act of 1996 is available u/sec. 37 of the Act and once the effective statutory remedy was available to the respondents, the writ petition was not maintainable and this point was specifically raised as one of the preliminary objection in the reply to the writ petition but was not considered by the learned Single Judge and accordingly the order passed by the learned Trial Judge dated. 18th May, 2009 could not be interfered under writ jurisdiction of this court u/Art. 226 & 227 of the Constitution. 4. Counsel for the respondents Mr. Kala on the other hand submits that even if there is remedy being provided under the Statute, still the discretionary remedy of this court available under Articles 226 and 227 of the Constitution cannot be curtailed and once the learned Single Judge was of the view that the order passed by the Trial Judge under Section 9 of the Act of 1996 requires modification, there appears no error or infirmity in the order impugned which requires interference. 5. After hearing the parties we are of the considered view that if the Statute provides remedy of appeal to the party affected ordinarily it would not be appropriate for this court to exercise its powers under Article 226 of the Constitution and the present controversy raised does not fall in any of the Exceptions as pointed out by the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors., 1998 (8) SCC 1 , 6. Counsel for the respondents at this stage submits that since the order was wholly without jurisdiction, the writ petition filed under Article 226 of the Constitution was maintainable. 7. Counsel for the respondents at this stage submits that since the order was wholly without jurisdiction, the writ petition filed under Article 226 of the Constitution was maintainable. 7. The objection raised as regards the jurisdiction of the civil court to decide the application filed under Section 9 of the Act of 1996 is without substance for the reason that it was never raised before the learned Single Judge and apart from it the application can be filed under Section 9 of the Act of 1996 for seeking interim measures to a court and the court has been defined under Section 2(e) of the Act of 1996. 8. In the instant case the application was filed under Section 9 of the Act of 1996 before the learned District Judge, who transferred the matter to the concerned Addl. District Judge which certainly holds jurisdiction in view of Section 2(e) of the Act 1996 and such an order cannot be said to be without jurisdiction as prayed. 9. Counsel for the respondents further submits that if he now is being relegated to approach the appellate authority as provided under Section 37 of the Act, there is certainly a delay and he will be remedy less to take measures as the law permits to him. 10. Counsel for the appellant while opposing the submission made by the counsel for the respondents submits that it was open for the respondents to avail the remedy to file appeal but if there is delay in filing of the appeal the law must take its own recourse but right of objection available to him may not be taken away. 11. We are of the view that the remedy was certainly available to the respondents to file an appeal u/sec. 37 of the Act but he approached to the wrong forum availing the remedy under Article 226 of the Constitution and we are of the view that atleast he is expected to be provided a right of audience if appeal is being preferred by the respondents. 12. Consequently, the appeal succeeds and the order impugned of the learned Single Judge dated 4th December, 2012 is hereby quashed and set aside and we grant liberty to the respondents of filing an appeal against the order of the learned Addl. 12. Consequently, the appeal succeeds and the order impugned of the learned Single Judge dated 4th December, 2012 is hereby quashed and set aside and we grant liberty to the respondents of filing an appeal against the order of the learned Addl. District Judge dated 18th May, 09 passed under Section 9 of the Act of 1996 as provided under the Act and if such an appeal is preferred within a period of 30 days from today that may be treated to be within limitation and the appellate court may decide such an appeal in accordance with law after providing an opportunity of hearing to the parties.Special appeal allowed. *******