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2022 DIGILAW 1169 (GUJ)

Cineline India Limited v. Kankubag Mall Llp

2022-09-30

NISHA M.THAKORE, SONIA GOKANI

body2022
ORDER : SONIA GOKANI, J. 1. By way of the present petition the petitioner seeks to challenge the order dated 24.08.2022 passed by the Commercial Court, Ahmedabad (Rural), deciding the interim injunction application filed by the petitioner in Commercial CMA No.16 of 2022 along with the application under Section 9 of the Arbitration and Conciliation Act, 1996 (‘the Act’ hereinafter) which is marked at Exhibit 5. 1.1 By way of the impugned order the interim injunction application preferred by the petitioner has been rejected, on the ground that such order is erroneous and not sustainable under the law, the challenge is made. It is also the grievance of the petitioner that the principal reliefs sought by the petitioner have also been considered while passing the order impugned. 2. The petitioner is the company registered under the provisions of Companies Act and is engaged in the business of building, managing, running and operating multiplex theaters. It is operating as averred in the petition various multiplex across India. The petitioner is the original applicant in the proceedings before the Commercial Court. The respondent No.1 is a limited liability partnership registered under the provisions of Limited Liability Partnership Act, 2008 and is the owner of property situated at Revenue Survey Nos.981/2/2 and 984/1 of the draft town planning scheme No.106 (Vastral + Ramol) at village Vastral, Taluka Vatva, Sub-District Ahmedabad 12 (Nikol) in District Ahmedabad. 3. The prayers sought for are as follow: “10.. 3. The prayers sought for are as follow: “10.. (A) Your Lordships may be pleased to issue a writ of Certiorari or in the nature of Certiorari or any other appropriate writ, order and direction, quashing and setting aside the impugned Order dated 24.08.2022 (Annexure A) passed by the learned Commercial Court, Ahmedabad (Rural) below Exhibit 5 in Commercial CMA No.16 of 2022; (B) Pending admission, hearing and final disposal of the present Petition, Your Lordships may be pleased to stay the operation, implementation and execution of the impugned Order dated 24.08.2022 (Annexure A) passed by the learned Commercial Court, Ahmedabad (Rural) below Exhibit 5 in Commercial CMA No.16 of 2022; (C) Pending admission, hearing and final disposal of the present Petition, Your Lordships may be pleased to restrain the Respondent or anybody claiming through him from dispossessing the Petitioner from the said property without due process of law and from interfering with the possession of the property by the Petitioner; (D) Pending admission, hearing and final disposal of the present Petition, Your Lordships may be pleased to restrain the Respondent creating any third party rights by dealing with the subject premises in any manner whatsoever and from implementing any agreement, if any, executed with any third party in relation to the subject premises.; (E) Your Lordships may be pleased to grant adinterim ex-parte relief in terms of paragraph (B) to (D) above; (F) Your Lordships may be pleased to pass any other and further order(s) as may be required in the interest of fairness, justice and equity.” 4. This Court on different dates passed different orders and also issued the notice. The newly proposed respondent is also before this Court. The petitioner is represented by the learned senior advocate, Mr.Parikh assisted by the learned advocate, Mr.Kunal Vyas with learned advocate, Mr.Devarsh Trivedi for Gandhi Law Associates. The respondent No.1 Kankubag Mall LLP is represented by the learned senior advocate, Mr.Mihir Thakore assisted by the learned advocate, Mr.A.H.Mohapatra. Learned advocate, Mr.Nandish Chudgar represents the proposed party with learned advocate, Ms.Nidhi Prajapati. 5. We have heard the learned senior advocate, Mr.Parikh assisted by learned advocate, Mr.Trivedi, he seeks to withdraw this petition with a view to prefer an appeal under Section 37 of the Act, where the request for converting seems difficult in wake of a huge requirement of recasting the petition in an appeal memo. 5. We have heard the learned senior advocate, Mr.Parikh assisted by learned advocate, Mr.Trivedi, he seeks to withdraw this petition with a view to prefer an appeal under Section 37 of the Act, where the request for converting seems difficult in wake of a huge requirement of recasting the petition in an appeal memo. While permitting this withdrawal, the Registry can be asked to return the documentary evidences which have formed the part of this petition. 6. While so doing, we have noticed that the order impugned is passed below Exhibit- 5 in Section 9 application preferred under the Act. Section 9 of the Act speaks of the interim measures by the Court. Apt would be to reproduce the same: “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 of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising 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.” 7. We also notice that Section 37 of the Act under heading of the appeal provides for the appealable orders which includes the granting or refusing to grant any measures under Section 9 of the Act. We also notice that Section 37 of the Act under heading of the appeal provides for the appealable orders which includes the granting or refusing to grant any measures under Section 9 of the Act. It is only because the Commercial Court accepting the application under Section 9 of the Act and yet for the interim measures insisting for application under Exhibit-5 that the practice is being followed to decide Exhibit-5 keeping the application under 9 intact. When, in fact, Section 9 is an interim measures where 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 for interim measures which include the interim injunction or an appointment of a receiver. There simply cannot be any Exhibit 5 in Section 9 application. At the best in the very application, the ad interim relief can be sought for by the party approaching the Court under Section 9 of the said Act. 8. We have been assisted by the learned senior advocates on both the sides, who also have emphatically and fervently submitted that this practice neither is prescribed anywhere in the law nor is it palatable and this also gives a rise to unnecessary confusion as keeping the application under Section 9 untouched, Exhibit 5 application has been decided giving arise to multiple proceedings. Let that note be taken of this aspect, we shall refer it to the Registry for it to take a necessary direction for sending it to the Court concerned or administrative side and stop this practice of insisting for Exhibit 5 application in Section 9 application preferred under the Act. 9. With these observations and directions, this petition is disposed of without entering into the merits. None of the observations anywhere shall in any manner prejudice the parties. 10. Considering the commercial nature of the litigation, while disposing of this petition, we propose the parties including the proposed party to explore the possibility of settlement through the process mediation. The High Court Mediation Centre can be approached by all the parties jointly for it to take the process further. 11. This will in no manner prejudice the proceedings in any manner nor will it curtail the rights of the parties to expeditiously move for other recourse.