Delhi District Court
Girnar Software Private Limited vs Smartworks Coworking Spaces Private on 16 October, 2020
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN:
DISTRICT JUDGE (COMMERCIAL COURT)01:
SOUTHEAST, SAKET : DELHI
OMP(I) (Comm) no.166/2020
in the matter of:
Girnar Software Private Limited
having its registered office at:
Girnar 21, Govind Marg Moti
Doongari Road, Dharm Singh Circle,
Jaipur, Rajasthan302004
Represented by its authorised
representative Mr. Lokesh Sharma
Email. [email protected]
.....Petitioner
VERSUS
Smartworks Coworking Spaces Private
Limited,
having its registered office at:
Unit no. 305310, Plot no. 9, 10 & 11,
Vardhman Trade Centre,
Nehru Place, South Delhi110019
Represented by its authorised
representative,
Mr. Prashant Hakim
Email. [email protected]
.....Respondent
Date of institution : 03.10.2020
Date of judgment reserved : 14.10.2020
Date of decision : 16.10.2020
JUDGMENT
(Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 1/23
1. The petition under section 9 of the Arbitration and Conciliation Act,1996 (hereinafter referred as "Arbitration Act") has been filed by the petitioner with the following prayer:
(a) Direct the respondent to allow the petitioner to enter the premise and inspect the assets/belongings lying in the premises of the respondent as listed in annexureP/9 hereof and various belongings/assets of petitioner as issued to its employees including without limitation laptops, charges, USB devices, other devices, notebooks, documents, etc and placed in the drawers of respective workstations, and in cupboards, lockers etc allocated to the said employees at the centre;
(b) Upon inspection, as prayed above, direct the respondent to return safe possession of all the assets/belongings of the petitioner lying in the centre of the respondent as listed in annexureP/9 hereof and various belongings/assets of petitioner as issued to its employees including without limitation laptops, charges, USB devices, other devices, notebooks, documents, etc and placed in the drawers of respective workstations, and in cupboards, lockers etc (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 2/23 allocated to the said employees at the centre ;
(c) pass such other order/as it may deem fit and proper.
2. It is stated in the petition that petitioner and the respondent entered into service agreement dated 11.09.2019 wherein respondent offered office space to the petitioner at its business centre located in Unitech Cyber Park, 7 th floor, towerB, Sector 39 Gurgaon Haryana alongwith facilities and amenities on a shared basis. Service agreement came into effect on 26.06.2019 and was purported to continue till 31.05.2022 unless terminated sooner in accordance with the provisions of the agreement. There was the lockin period for 6 months as per clause 3(b) of the agreement. Due to outbreak of Coronavirus Disease 2019 (Covid19), petitioner has allowed their employees to work from home as such not accessing and using of the office space or availing any service from the respondent since March 2020 due to the lockdown. Clause7 (c) and 12 of the agreement contains termination of the agreement on occurrence of Force Majeure. Clause 12 provides force majeure as under: (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 3/23
12.Force Majeure:
a) If performance of this Agreement is prevented, restricted or interfered with by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, epidemic, quarantine, or any other circumstances beyond the reasonable control of a Party and not involving any fault, misconduct or negligence of the Party affect ("Event of Force Majeure"), the Party affected, upon giving prompt notice to the other Party, shall be excused from such performance on a daytoday basis during the continuance of such Event of Force Majeure provided, however, that the Party so affected shall forthwith notify in writing to the other Party regarding occurrence of such Event of Force Majeure, in any event, not later than 15 (fifteen) calendar days from the date of occurrence thereof and use its best reasonable efforts to avoid or remove such causes of nonperformance and both Parties shall proceed immediately with the performance of their obligations under this Agreement whenever such causes are removed or avoided, or such causes otherwise cease.
....." (emphasis added)
3. Accordingly, due to occurrence of force majeure event, petitioner sent the notice of occurrence of force majeure event, by email dated 26.03.2020. Thereafter, as per procedure agreed between the parties, after 15 days, petitioner vide notice dated 09.04.2020 terminated the agreement w.e.f 25.04.2020.
4. The respondent in reply to the notice of the petitioner vide reply dated 18.04.2020 alleged that notice of minimum three (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 4/23 months was required to be served by the petitioner and outstanding rent was upto 30.07.2020. Respondent did not refund security of Rs. 25,83,000/ and illegally demanded Rs.18,58,226/ from the petitioner. Vide letter dated 29.05.2020 petitioner gave final opportunity to the respondent to return assets lying in the premises belonging to the petitioner.
5. In the meantime respondent invoked the arbitration vide notice dated 13.07.2020 which was received by the petitioner on 20.07.2020 and vide reply dated 18.08.2020 petitioner rejected the proposal and nominated Arbitrator of the respondent. The petitioner also appointed its own Arbitrator to adjudicate the dispute. It is stated that for reasons as shown in annexureP/9 the assets/belongings of the petitioner are illegally retained by the respondent and petitioner is not permitted to take away those articles after termination of the agreement. Hence, the present petition has been filed for interim measures for issuing directions to respondent to allow the petitioner to inspect the premises and after inspection further directions to return the possession of all assets belonging to the petitioner.
6. In reply to the petition, it is stated that petition is not (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 5/23 maintainable because alleged cause of action seeking relief in the present petition arose in May 2020 and petitioner has waited so long and did not take any steps for appointment of Arbitrator and it is only after respondent's appointment of Arbitrator, the petitioner has filed the present petition. It is further stated that respondent has already filed petition under section 11 of the Arbitration Act in the Hon'ble High Court of Delhi which was filed on 30.09.2020. Petitioner has defaulted in making payment of charges to the tune of Rs. 15,38,151/ and as such respondent has a lien on all the goods and assets of the petitioner. Despite repeated reminders petitioner has not made payment of outstanding amount and failed to comply the previsions of service agreement. It is further stated that invocation of the force majeure clause and the alleged force majeure event was temporary in nature and did not give ground for termination of the service agreement between the parties. Agreement could have been terminated by giving three months advance notice which has been violated by the petitioner. The alleged termination notice dated 09.04.2020 was waived by the petitioner because petitioner admittedly did not remove its belongings from the centre of the respondent. It is further stated (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 6/23 that respondent is relying and referring clause3(d) of the house rules attached with the said agreement wherein respondent is entitled to reserve or withhold service denying the petitioner accessing to their accommodation while there are any outstanding, if penalty and interest or petitioner is in breach of service agreement. It is therefore stated that respondent under agreement has every right to withhold service of the petitioner for accessing to the accommodation while outstanding amount not paid in breach of the agreement.
7. It is further stated that despite several attempts having failed to appoint mutual sole Arbitrator, respondent has filed petition under section 11 (6) of the Arbitration Act in Hon'ble High Court for appointment of Arbitrator to adjudicate the dispute that have arisen between parties. It is further stated that on 30.09.2020 the petition was heard but Ld counsel for the petitioner herein made a request telephonically to the counsel for the respondent herein for seeking adjournment for seeking instruction for agreeing to the appointment of the independent Arbitrator by the Court. Accordingly, matter was fixed for 09.10.2020. It is further stated that the present petition has been filed for seeking interim relief by (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 7/23 the petitioner in order to make proceedings pending in the Hon'ble High Court ineffective and hence petition is false and liable to be dismissed.
8. I have heard Ld Senior Counsel Sh. Nakul Diwan for the petitioner and Sh. Ankit Kohli Ld Counsel for the respondent.
9. Before opening of the arguments by the Ld Senior counsel for the petitioner, I drew his attention to the recent pronouncement of our own High Court in case Avantha Holding Ltd Vs Vistra ITCL India Ltd, OMP(I) (COMM) no. 177/2020 judgment dated 14.08.2020 and para no. 25 and 26 were brought to the notice of Ld counsel for the parties which are as under:
25. The Court, while exercising its power under Section 9 of the 1996 Act, has to be acutely conscious of the power, vested in the arbitrator/arbitral tribunal, by Section 17 of the same Act. A reading of Section 9, and Section 17, of the 1996 Act, reveals that they are identically worded. The ―interim measures‖, which can be ordered by the arbitral tribunal, under Section 17, are the very same as those which can be ordered by the Court under Section 9. It is for this reason that subsection (3) of Section 9 proscribes grant of interim measures, by the Court, consequent on constitution of the arbitral tribunal, save and except where the Court finds that circumstances exist, which may not render the remedy, under Section 17, to be efficacious. The Court, while exercising jurisdiction under Section 9, even at a prearbitration stage, cannot, therefore, usurp the jurisdiction which would, otherwise, be vested in the arbitrator, or the arbitral tribunal, yet to (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 8/23 be constituted. The Court is also required to ensure that Section 9 is not employed, by litigants, who feel that it is easier to obtain interim relief from a Court, rather than from an arbitrator or arbitral tribunal, to forum shop. Left unchecked, Section 9 is easily amenable to such misuse. While, in an appropriate case, the Court must not hesitate in ordering ―interim measures‖, under Section 9, in judging whether a particular case is ―appropriate‖ or not, the Court is required to do some tightrope walking. While the principles, to be borne in mind, while examining whether a case for ordering interim AIR 1990 Bom 107 Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI 16:59:20 measures, under Section 9, exists or not, the same as those which govern Order 39 of the Civil Procedure Code, 1908, i.e. the existence of a prima facie case, the balance of convenience and the possibility of irreparable loss or prejudice, were interim relief not to be granted, apart from the consideration of public interest, evolved by later decisions, chiefly in Ramniklal N. Bhutta v. State of Maharashtra 5 and Raunaq International Ltd. v. I.V.R. Construction Ltd. 6
26. That said, the mere satisfaction of these criteria does not, ipso facto, make out a case for ordering interim measures under Section 9. Additionally, the Court is also required to satisfy itself that the relief, being sought under Section 9, cannot await the constitution of the arbitral tribunal, or the appointment of the arbitrator, and the invocation, before such arbitrator or arbitral tribunal, of Section
17. Emergent necessity, of ordering interim measures is, therefore, an additional sine qua non, to be satisfied before the Court proceeds to grant relief under Section 9 of the 1996 Act. While passing orders under Section 9, therefore, the Court is required to satisfy itself that
(i) the applicant, before it, manifestly intends to (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 9/23 initiate arbitral proceedings 7, (ii) the criteria for grant of interim injunction, which apply to Order 39 of the CPC, stands satisfied, and (iii) circumstances also exist, which renders the requirement of ordering interim measures an emergent necessity, which cannot await a Section 17 proceeding, before the arbitrator, or arbitral tribunal. In assessing whether such an emergent necessity exists, or not, the Court would, essentially, have to (1997) 1 SCC 134 (1999) 1 SCC 492 Sundaram Finance Ltd v. NEPC India Ltd, (1999) 2 SCC 479 Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI 16:59:20 satisfy itself that failure to order interim measures, under Section 9, would frustrate, or would render the recourse, to arbitration which is yet to take place a futility.
10. After going through the judgment Avntha Holding (Supra), Ld Senior counsel for the petitioner submitted that case of the petitioner falls in the category of emergent necessity and for that reasons ratio of the said judgment does not come in the way of granting interim relief sought by the petitioner in the present petition. It was submitted that the articles lying in the premises are computer, software bank cheque book/passbook and various order vital material which are necessary for the functioning of the petitioner company. It was vehementally argued that the petitioner has not been able to perform its work because all necessary items (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 10/23 for functioning of the petitioner company are withheld by the respondent, therefore it is urgent and there is emergent necessity that those articles be handed over to the petitioner by directing the respondent to permit the petitioner to inspect the premises and to take away those articles. It is further argued that respondent could not have lien over those items which is beyond the scope of the service agreement. It is further submitted by the Ld Senior Counsel that claim of the respondent against the petitioner is of Rs.18,58,226/whereas respondent has already withheld the security amount of Rs.25,83,000/ and as such there is no justification for withholding essential articles/items of the petitioner which are necessary for carrying out/functioning of the petitioner company. Ld counsel for the petitioner therefore argued that petitioner cannot wait for the appointment of Arbitrator as there is no possibility that Ld Arbitrator will be appointed sooner and as such the present petition is legally maintainable and there is emergent necessity for the petitioner to get their articles back which are illegally retained by the respondent without any legal and contractual justification.
11. Ld counsel for the respondent on the other hand submitted that the contentions made on behalf of petitioner are not supported (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 11/23 by the pleadings of the petition. It is argued that the case of the petitioner is that after lockdown the petitioner has asked its employees to work from home and has even requested by email to keep articles of the petitioner in its possession till the necessity arise for taking away the same. It is further argued that nowhere in the petition it is stated that articles allegedly lying in the premises are necessary for carrying out the day to day activities of petitioner and arguments in that regard are beyond pleadings and therefore does not hold any water and needs to be rejected forthwith. Ld counsel drew the attention of the court to the list of articles as shown in annexure9 stating that those articles are CPU and monitors etc and there is no other articles allegedly passbook and cheque book as is claimed in the oral submissions on behalf of petitioner. It is therefore vehementally argued that matter is listed in Hon. High Court on 09.10.2020 and Arbitrator is likely to be appointed by the Hon. High Court and Ld Arbitrator so appointed can be approached by the petitioner for returning of the articles if any lying in the premises, therefore, in view of the case law in Avantha (Supra) petition is not maintainable and liable to be dismissed.
12. Ld counsel for the respondent has also filed written (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 12/23 arguments in support of rival contentions alongwith citations. In written arguments Ld Counsel for the respondent has reiterated the same facts stating that there is no urgency in the matter and matter can wait for appointment of the Arbitrator and adjudication of interim measures by the Ld Arbitrator. It is further argued that no prima facie case is made out in favour of petitioner. It is further argued that in case this court in its wisdom deem it fit to grant interim relief same should be granted after granting equitable relief of payment of Rs. 15,38,151 to the respondent by the petitioner at the time of collecting their items so as to secure the interest of the respondent and ensure that petitioner does not continue to delay the arbitration process. It is further submitted that in the alternative the said sum should be secured by the court in any manner as it deem fit while granting interim relief if any to the petitioner. Ld counsel has put reliance on the case of Connaught Plaza Restaurants Private Ltd Vs Radhakrishna Foodland Private Ltd, 2018 (5) ARBLR 293, Delhi High Court. Para no. 53 is relevant and reproduced as under:
53. In equity, admittedly, the petitioner is liable to clear some dues of the respondent. Such dues were 4.19 crores as on 15.12.2017, though petitioner alleges adjustments. Nevertheless we are in late 2018, so in the (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 13/23 interest of justice where the petitioner claims no lien then it should also make provisions qua claim of the respondent. Hence prior to execution of commission(s) aforesaid the petitioner to deposit with the Registrar General or to give bank guarantee for 4.50 crores to the satisfaction of the learned Registrar General, which shall, of course, be subject to directions/award passed in arbitration. The petition and pending applications if any, stands disposed of.
13. Ld counsel further relied upon the case of V.Sekar and Others Vs Akash Housing, AIR 2011 Madras 110, High Court of Madras wherein para 27 it was held that :
27. It is pertinent to note that as against vacating of interim injunction and status quo in Application Nos.49 and 50 of 2010, Vijay Shanthi Builders has not chosen to prefer any appeal. As we pointed out earlier, in both the development agreements, both the firm and the Company are represented by the same individual and both the agreements are strongly connected. The dispute pertaining to Akash Housing cannot be determined in isolation without examining the dispute between the parties in respect of Vijay Shanthi Builders. When the injunction application filed by Vijay Shanthi Builders, who was put in possession and apparently has a larger right than the very same relief cannot be given to the respondent herein. In such facts and circumstances, whether it is "just and convenient" to grant interim injunction as an interim measure of protection as contemplated under Section 9 of the 1996 Act. The purpose of Section 9 is to provide an interim measure of protection to the parties to prevent the ends of justice from being defeated. S.9(2)(e) vests the Court with the power to grant such interim measures of protection as may appear to be just and convenient. The jurisdiction (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 14/23 under the "just and convenient" clause is quite wide in amplitude, but must be exercised with restraint. Interim measures are to be granted by the Court so as to protect the right in adjudication before the arbitral tribunal from being frustrated. It does not allow the Court the discretion to exercise unrestrained powers and frustrate the very object of arbitration.
14. Alongwith written arguments Ld Counsel for the petitioner has filed an application u/s 151 CPC seeking permission to file additional documents annexureP/10 i.e email dated 28.09.2020 (respondent to petitioner) and email dated 26.09.2020 (petitioner to respondent).
15. Ld counsel for the respondent stated that the contents of the application are controverted and denied. However, contents of the emails are not denied. Respondent has not filed any reply to the said application.
16. Ld Counsel for the petitioner submitted that petitioner is not relying upon the contents of the application and same may not considered while passing the order on the petition. However, emails annexureP/10 may be considered as same are admitted and not denied by the respondent.
17. The annexureP/10 i.e email dated 28.09.2020 (respondent to petitioner) and email dated 26.09.2020 (petitioner to (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 15/23 respondent) are reproduced as under : Email dated 26.09.2020 "While there is an ongoing dispute between Girnar Software Private Limited and Smartworks Coworking Spaces Private Limited in relation to the Service Agreement dated 11 September 2019, we have been repeatedly requesting you to release our assets and umpteen belongings including personal belongings of our employees unlawfully detained by you at your business centre.
However, despite our persistent efforts, you have shown no inclination to even allow us to access or inspect our own assets and belongings and you have prevented us from even entering the business centre, causing significant inconvenience and business losses to us on a continuous basis.
Apart from our IT Assets, there are numerous other items lying at the business centre including without limitation certain key documents, records, files, contracts, cheques pertaining to our business, storage devices, etc. belonging to us and our employees, which will not even be of any value to you and detention whereof will not serve any purpose whatsoever. Whereas, on the other hand, in case these items are not released immediately, it will cause irreparable harm to us and our employees. Therefore, we request that we must atleast be allowed to collect certain key items and inspect the remaining assets/items in presence of your representatives on immediate basis.
These items also include vital customer information, critical information of our clients required to provide efficient and effective service to our clients, certain confidential documents, files, etc. and nonaccess to (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 16/23 them is leading not only to huge financial losses, impact to our day to day business operations, but also huge reputational loss as well as multiple counts of breach of our contractual obligations towards our client. Further, these assets were never subject matter of such contractual disputes. In the pretext of your alleged demand of money, your illegal retention and possession of same is unwarranted and uncalled for, has put us in an extremely taxing situation.
We apprehend that you may, taking advantage of the situation, mishandle, destroy, damage, misplace, misappropriate or otherwise cause harm to the assets and other items belonging to us and our employees and any such occurrence and delay in handing over such items shall lead to damage beyond repair entailing farreaching consequences, including monetary and otherwise, upon you.
Therefore , it is in the interest of both the parties that atleast certain key items lying on the business centre be allowed to be collected by us and our employees immediately in a day. The inspection and collection of remaining assets/items may be allowed in presence of your representatives in next 2 (two) days thereafter. We await your confirmation on our above request. Kindly revert on this before end of the day tomorrow." Email dated 28.09.2020 "we strongly deny your allegations and firmly state that these new allegations are being made to create false evidence in the ongoing litigation.
However, while we reiterate our stand on the issue, we have also forwarded your email to our advocate to deal with the same in view of the matter already being sub judice. "
(Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 17/23
18. During the hearing on 14.10.2020, Ld counsel for the respondent has filed the copy of the order dated 09.10.2020 in ARB.P no. 437/2020 of Hon'ble High Court of Delhi wherein Hon'ble High Court of Delhi was pleased to appoint the Hon'ble Arbitrator under section 11 (6) of the Arbitration and Conciliation Act 1996 for adjudication of the disputes and differences which has arisen between the parties in relation to the agreement dated 11.09.2020. Hon'ble High court has further directed that it will be open for the parties to file their claims/counter claims before the Ld Arbitrator which will be considered as per law alongwith raising of pleas permissible in law before the Ld Arbitrator.
19. Ld counsel for the respondent therefore vehementally argued that since Arbitrator has already been appointed and there is no eminent necessity /urgency having been established prima facie for entertaining the petitioner under section 9 of the Arbitration Act by the court and petition is liable to be dismissed. It is further submitted that whatever grievances/claim of the petitioner, the same can be considered by the Ld Arbitrator under section 17 of the Arbitration Act and for that reasons petition is not maintainable.
(Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 18/23
20. Ld Counsel for the petitioner on the other hand submitted that notwithstanding appointment of Arbitrator as already argued, on the basis of documents and pleadings, there is extreme urgency in the matter because functioning of the business of the petitioner company has come to stand still in the absence of the necessary equipments/documents which has been withheld by the respondent without any legal basis. It is also argued that Hon'ble Court may appoint Local commissioner to ascertain what articles are lying in the premises belonging to the petitioner. Ld counsel for the respondent in that regard submitted that there is no pleadings of appointment of Local Commissioner in the prayer clause and as such there is no need for sending and appointment of the Local Commissioner because the respondent has lien over articles lying in the premises.
21. I have considered the rival submissions made at bar and carefully examined the citations. It is an admitted fact that Arbitator has been appointed by the Hon'ble High Court of Delhi.
22. In para no. 25 of the Avantha Holding referred Supra, Hon'ble High Court of Delhi was pleased to hold that subsection (3) of Section 9 proscribes grant of interim measures, by the Court, (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 19/23 consequent on constitution of the arbitral tribunal, save and except where the Court finds that circumstances exist, which may not render the remedy, under Section 17, to be efficacious.
23. Nothing has been submitted on behalf of petitioner that after the constitution of the Arbitral Tribunal by the Hon'ble High Court of Delhi, remedy available u/s 17 of the Arbitration Act will not be efficacious. There is nothing to show that in case jurisdiction of arbitral tribunal is invoked under section 17 , relief sought in the present petition cannot be granted in efficacious manner by the Hon'ble Arbitral Tribunal. Moreover, releasing of the goods lying in the premises is a disputed question in view of the lien claimed by the respondent on the same and as such it is in the domain of the Arbitrator to adjudicate upon the said issue.
24. Regarding the extreme urgency being claimed, I am not satisfied with the contentions of the petitioner because for termination of the Lease Deed, petitioner has alleged that they were not in need of tenanted premises because due to the lock down all the employees has been asked to operate from their homes. Except bald averments , nothing has been placed before the court to show that business of the petitioner company has become stand still in (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 20/23 the absence of the articles lying in the premises.
25. Section 17 of the Arbitration Act provides as under: "Section 17: Interim measures ordered by arbitral tribunal.
17. (1) A party may, during the arbitral proceedings 2[***], apply to the arbitral tribunal
--
(i) for the appointment of a guardian for a minor or 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 subjectmatter 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 subjectmatter 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 (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 21/23 receiver;
(e) such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient, and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and in relation to, any proceedings before it.
(2) Subject to any orders passed in an appeal under section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were an order of the Court."
26. Thus, it is evident from the provisions of section 17 of the Arbitration Act that the Arbitral tribunal is competent to grant the relief which are available and can be granted by the court under Arbitration Act. In the absence of extreme urgency having not been prima facie established so as to show irreparable loss in case petition under section 9 of the Arbitration of the Act is not entertained by this court, due to the constitution of the Arbitral Tribunal, I am of the considered opinion that this court is not required to entertain the petition under section 9 of the Arbitration Act because Arbitral Tribunal has already been constituted and (Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 22/23 petitioner is at liberty to approach the Ld Arbitrator tribunal for seeking interim relief claimed in the present petition.
27. For the above reasons, petition under section 9 of the Arbitration Act is not required to be considered, accordingly dismissed.
28. Nothing stated herein tentamounts to the expression of opinion of the merits of the case.
29. Petition is disposed off accordingly in above terms. Digitally signed
Announced in the open court RAJ by RAJ KUMAR
KUMAR CHAUHAN
on 16.10.2020 CHAUHAN Date: 2020.10.16
16:18:20 +0530
(RAJ KUMAR CHAUHAN)
District Judge (Commercial Court)01
SouthEast, Saket, Delhi.
16.10.2020
(Girnar Sofware P. Ltd VS Smartworks coworking Spaces P. Ltd.) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.16.10.2020 Page no.......... 23/23