Delhi High Court - Orders
Simplex Infrastructures Ltd vs Director General Married ... on 29 March, 2022
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~S-4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 386/2021 and I.A. 15439/2021 & 16559/2021
SIMPLEX INFRASTRUCTURES LTD ..... Petitioner
Through: Mr. Kirti Uppal, Senior Advocate
with Mr. Samrat Sengupta, Advocate,
Mr. Parag Chaturvedi, Advocate and
Ms. Riya Gulaati, Advocate.
versus
DIRECTOR GENERAL MARRIED ACCOMMODATION
PROJECT ..... Respondent
Through: Mr. Harish V. Shankar, CGSC with
Ms. S. Bushra Kazim, Advocate and
Mr. Srish Kumar Mishra, Advocate
for UOI.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 29.03.2022 Further to last order dated 25.02.2022, Mr. Kirti Uppal, learned senior counsel appearing on behalf of the petitioner and Mr. Harish Vaidyanathan Shankar, learned CGSC appearing for the respondent, submit that since a learned Sole Arbitrator has already been appointed in the matter vidé order dated 07.12.2021 in Arb.P. No. 784/2021, the present petition seeking interim measures of protection under section 9 of the Arbitration & Conciliation Act 1996 (A&C Act) be referred to the learned Sole Arbitrator, to be treated as an application under section 17 of the A&C Act.
2. Learned counsel however submit, that until such time as the learned Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:31.03.2022 OMP (I) (COMM.) 386/2021 Page 1 of 3 12:08:49 Sole Arbitrator considers the submission of the parties on this application, the interim order made by this court vidé order dated 25.11.2021 be continued.
3. Attention of this court is drawn to the recent judgment of the Hon'ble Supreme Court in the case of Arcelor Mittal Nippon Steel India Ltd Vs. Essar Bulk Terminal Ltd.1, inter-alia in paras 86 and 98 whereof the Hon'ble Supreme Court has laid down the following position of law:
"86. On a combined reading of Section 9 with Section 17 of the Arbitration Act, once an Arbitral Tribunal is constituted, the Court would not entertain and/or in other words take up for consideration and apply its mind to an application for interim measure, unless the remedy under Section 17 is inefficacious, even though the application may have been filed before the constitution of the Arbitral Tribunal. The bar of Section 9(3) would not operate, once an application has been entertained and taken up for consideration, as in the instant case, where hearing has been concluded and judgment has been reserved. Mr Khambata may be right, that the process of consideration continues till the pronouncement of judgment. However, that would make no difference. The question is whether the process of consideration has commenced, and/or whether the Court has applied its mind to some extent before the constitution of the Arbitral Tribunal. If so, the application can be said to have been entertained before constitution of the Arbitral Tribunal."
***** "98. It is reiterated that Section 9(1) enables the parties to an arbitration agreement to approach the appropriate court for interim measures before the commencement of arbitral proceedings, during arbitral proceedings or at any time after the making of an arbitral award but before it is enforced and in accordance with Section 36 of the Arbitration Act. The bar of Section 9(3) operates where the application under Section 9(1) had 1 (2022) 1 SCC 712 Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:31.03.2022 OMP (I) (COMM.) 386/2021 Page 2 of 3 12:08:49 not been entertained till the constitution of the Arbitral Tribunal. Of course it hardly need be mentioned that even if an application under Section 9 had been entertained before the constitution of the Tribunal, the Court always has the discretion to direct the parties to approach the Arbitral Tribunal, if necessary, by passing a limited order of interim protection, particularly when there has been a long time gap between hearings and the application has for all practical purposes, to be heard afresh, or the hearing has just commenced and is likely to consume a lot of time. In this case, the High Court has rightly directed the Commercial Court to proceed to complete the adjudication."
(emphasis supplied)
4. Upon a conspectus of the foregoing, there appears to be no impediment to the present petition being disposed of, with a direction that the petition be treated as an application under section 17 of the A&C Act by the learned Sole Arbitrator seized of the disputes between the parties.
5. In the meantime, the interim measures of protection granted vidé order dated 25.11.2021 in the present O.M.P.(I)(COMM.) No. 386/2021 shall continue to remain in force, until varied or modified by the learned Sole Arbitrator.
6. The petition is disposed of in the above terms.
7. Pending applications, if any, also stand disposed of.
ANUP JAIRAM BHAMBHANI, J MARCH 29, 2022 Ne Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:31.03.2022 OMP (I) (COMM.) 386/2021 Page 3 of 3 12:08:49