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2016 DIGILAW 48 (RAJ)

Niranjanlal Joshi v. Pramod Kumar

2016-01-07

MOHAMMAD RAFIQ

body2016
JUDGMENT : Mohammad Rafiq, J. Matter has come up on Applications No. 10480/2015 and 24024/2015 for early listing of the appeal. Applications are allowed and the appeal is heard on merits. 2. This appeal is directed against order dated 01.09.2010 passed by District and Sessions Judge, Alwar (for short the 'trial court') in Civil Misc. Case No. 38/392/06, by which application filed by the appellant for interim measures under Section 9 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') has been rejected. 3. Learned counsel for the appellant has submitted that aforesaid application was rejected by the learned trial court primarily on the premise that the order dated 20.09.2001 passed by the Designated Judge of the Hon'ble Chief Justice of this Court, appointing sole Arbitrator, was subjected to challenge before the Supreme Court and the Supreme Court by its orders dated 13.10.2006 and 13.08.2007 stayed operation of the same and, therefore, no orders with regard to interim measures, as prayed for, could be passed. Learned counsel for the appellant has submitted that SLP filed by the respondents was subsequently dismissed by the Supreme Court vide order dated 08.01.2014 and, therefore, there should be now no impediment for grant of interim measures as were originally prayed for. Learned counsel submitted that mere factum of initiation of arbitral proceedings, does not denude the civil court of its power under Section 9 of the Act to pass appropriate order with regard to interim measures and that power can also be exercised by this Court. Learned counsel referred to application filed by the appellant under Order 40, Rule 1 CPC read with Section 151 CPC and Section 9 of the Act for appointment of receiver for taking charge of the assets of the partnership firm and protecting rights of the appellant and contended that the appellant did not voluntarily took retirement from the firm and he was forced to take such retirement by duress and coercion and the respondents, after his retirement, dissolved the original firm and formed another firm. The appellant apprehend that properties of the original firm might be disposed off or alienated by the respondents. 4. The appellant apprehend that properties of the original firm might be disposed off or alienated by the respondents. 4. Learned counsel for the respondents opposed the appeal and submitted that question whether the appellant was made to retire by coercion or duress cannot be disputed by them accepted and this question can only be decided on the basis of evidence that is led before the sole Arbitrator. Appropriate interim measures can be sought by the appellant even before the sole Arbitrator in view of provisions contained in Section 17 of the Act and this Court may not entertain the appeal on merits. It is contended that the respondents do not intend to transfer, dispose off or otherwise alienate the properties of the original firm, which are in their possession as of now. 5. Having regard to the facts afore stated, this Court deems it appropriate to decide present appeal directing the respondents to maintain status-quo with regard to immovable properties of the original firm, which have been passed on to the new firm and which are presently in their hands. However, the appellant shall be at liberty to make any further prayer with regard to any other appropriate interim measures including the aforesaid, before the sole Arbitrator. With the aforesaid direction, appeal is disposed of. Stay application also stands disposed of.