Calcutta High Court (Appellete Side)
Krishna Motor Finance (P) Limited vs Mr. Iltush Ahammed on 19 May, 2011
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
011
F.M.A.T 529 of 2011
with
C.A.N 4700 of 2011
Krishna Motor Finance (P) Limited
Vs.
Mr. Iltush Ahammed
Mr. Hiranmay Bhattacharyya,,
Mr. Sibnath Bhattacharyya
......... For the appellant/applicant
Mr. Apurba Kumar Ghosh
......... For the Respondent
By consent of the parties the appeal is taken up for hearing as we feel that the appeal of this nature need not wait for hearing with all formalities. Hence, such formalities are dispensed with.
This appeal is taken out against an order passed by the learned Judge, 3rd Bench, City Civil Court at Calcutta in Misc. Case No. 520 of 2010.
The appellant before us approached the learned trial Judge with an application under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'said Act') for passing interim order in the nature of injunction and appointment of Receiver over the vehicle etc.,. However, the learned trial Judge, by the impugned order, has dismissed the application in limine observing since similar remedy is available under Section 17 of the said Act, this application should not be entertained.
We are unable to accept the view of the learned trial Judge for the following reasons:
The provision of Section 9 enables the court to pass interim measure even when the arbitration proceeding is not commenced and it can be invoked during arbitral proceeding or even after completion of the same but before the said award is enforced under Section 36 of the said Act. In order to appreciate this position, we set out Section 9 of the said Act in the following manner:
"S.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:-2
(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 just4 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."
It appears that in Section 17, the power has been given for taking interim measure by the arbitral Tribunal. We are of the view that section 17 is applicable when the arbitration proceeding has been initiated, meaning thereby when the arbitral Tribunal is seisin over the matter, then in aid and assistance of the original proceeding arbitral Tribunal can take interim measure at the request of any of the parties. It is, thus, clear that the scope and purview of section 9 vis-à-vis the power of the court for passing interim measure is wider as far as the stage and time factor are concerned.
Now the question arises for consideration here whether in existence of Section 17, Section 9 can be invoked or not.
Language of both the aforesaid Sections as we feel that during pendency of the arbitration proceeding both the fora can exercise such power on the request of the parties and these provisions are not intended to apply to mutually oust the jurisdiction of each forum. According to us, this power is concurrent one and which forum is to be approached is the choice of the litigant. If one of litigants during pendency of the proceeding approaches the learned trial Court as defined in the said Act all the parties are bound to response the same forum for avoidance of conflict in judicial decision. In this case the petitioner approached the court not the learned arbitrator though the arbitral proceeding commenced. Therefore, the court is bound to entertain this application and to decide the matter in accordance with law, of course, upon notice to the adversary. In absence of express provision ousting jurisdiction, the court cannot refuse to entertain any matter. For example, Section 24 of the Code of Civil Procedure has provided concurrent power to the High Court as well as the learned District Judge for transfer of the proceedings from one court to another sub-ordinate to them. Similarly, Section 438 of the Code of Criminal Procedure empowers the High Court and Sessions Court to entertain application for 3 anticipatory bail concurrently without any blend of mutual ouster or jurisdiction. Above sections leave choice to the litigant which court is to be approached. Hence neither of courts can refuse the proceedings to entertain in view of the concurrent jurisdiction.
We, therefore, set aside the judgment and order of the learned trial Judge and restore the Miscellaneous Case for fresh hearing on merit.
Considering the facts and circumstances of this case and urgency of the matter upon hearing both the parties some interim measure is required pending decision by the learned trial Judge on affidavit being received.
There will be an order of injunction restraining the respondent from disposing, transferring, alienating and/or parting with possession of the vehicle bearing Registration No. WB-15/A 3582, Engine No. 697TC55BTZ108725 and Chassis No. 373344BTZ107215 or any accessories thereof. We think for a limited purpose, Receiver should be appointed only to make an inventory to find out the condition of the vehicle only.
Accordingly, we appoint Mr. Ananda Prasad Ghosh of Bar Library Club, a practising advocate of this court, Receiver to make only inventory of the vehicle and to report of the condition of the vehicle and to submit the same before the learned trial Judge. The Receiver shall be paid a lump sum remuneration assessed at Rs. 20,000/- to be paid by Mr. Hiranmay Bhattacharyya's client at the first instance.
The hirer would be entitled to ply the vehicle with the aforesaid injunction and shall in course of business keep the same in roadworthy condition. For other relief, it would be open for both the parties to approach the learned trial Judge.
In order to expedite the hearing of the matter, we give direction for filing affidavit by the hirer. Such affidavit may be filed within three weeks from date. Affidavit-in-reply, if any, may be filed two weeks thereafter.
We direct the learned trial Judge to hear out the matter as early as possible preferably within a period of three months from the date of communication of this order. The hirer must produce the vehicle before the Receiver, the moment Receiver serves notice upon the learned advocate on record of the respondent who is engaged in this court for production of the vehicle.
In case of failure or default in producing the vehicle, the Receiver will inform S.P, Murshidabad about this order. On receipt of communication, the Superintendent of Police, 4 Murshidabad shall cause the vehicle to be seized by the appropriate police officials subordinate to him within whose jurisdiction the vehicle is being plied and will make an arrangement for bringing the same to the Receiver, at the cost of the financier, in Kolkata or the vehicle may be kept at a place within Beharampore Police Station where the Receiver may go and make an inventory whichever arrangement is thought to be convenient for the Receiver. The cost of which shall be borne by the Financier at the first instance and the same will be decided later on by the learned trial Judge.
The appeal and the application are, thus, disposed of.
Xerox plain copy of this order, duly countersigned by the Assistant Registrar (Court), be given to learned Counsel for the parties upon making application for obtaining Xerox certified copy of this order. In the event, Xerox certified copy is not taken delivery of, in spite of being notified; the effect of the Xerox plain copy will stand extinguished.
(Kalyan Jyoti Sengupta, J.) (Syamal Kanti Chakrabarti, J.)