Calcutta High Court
Unitech Developers & Projects Limited vs Sreei Infrastructure Finance Limited on 21 July, 2016
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
AP No.955 of 2015
IN THE MATTER OF:
UNITECH DEVELOPERS & PROJECTS LIMITED
Versus
SREEI INFRASTRUCTURE FINANCE LIMITED
AP No.956 of 2015
IN THE MATTER OF:
UNITECH DEVELOPERS & PROJECTS LIMITED
Versus
SREEI INFRASTRUCTURE FINANCE LIMITED
AP No.957 of 2015
IN THE MATTER OF:
UNITECH DEVELOPERS & PROJECTS LIMITED
Versus
SREEI INFRASTRUCTURE FINANCE LIMITED
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 21st July, 2016.
Appearance:
Mr. S. K. Kapoor, Sr. Adv.
Mr. M. Bose, Adv.
Mr. S. N. Pandey, Adv.
..for the petitioner.
Mr. S.N. Mookerji, Sr. Adv.
Mr. Ratnanko Banerjee, Adv.
Mr. S. Banerjee, Adv.
Mr. N. Chatterjee, Adv.
Ms. A Malhotra, adv.
Mr. Ruby Jaiswal, Adv,.
..for the respondent.
The Court :-The hurdle faced by the petitioner in this proceeding is a Division Bench Judgement of this Court in Tufan Chatterjee Vs. Rangan Dhar reported in AIR 2016 Calcutta 213 where 2 the Division Bench in paragraph 41 of the report has held that even though an earlier application for interim relief may have been filed in Court, once Arbitral Tribunal has been appointed, interim relief would have to be sought before the learned Arbitrator. The Court would be denuded of its power to grant interim relief unless the Court is satisfied that circumstances exist, which may not render the remedy provided under Section 17 efficacious.
Mr. S. K. Kapoor, learned Senior Counsel appearing on behalf of the petitioner in all fairness has referred to the said judgement, but submitted that the Hon'ble Division Bench has not properly adverted to Section 26 of the Amended Act, 2015 which clearly stipules that nothing contained in the Amended Act shall apply to the Arbitral Proceeding commenced in accordance with law provision of Section 21 of the Principal Act provides, unless the parties otherwise agreed, the Amendment Act would apply in relation to Arbitral proceeding commenced on or after the date of commencement of the Amendment Act, this is to say, from 23rd October, 2015. It is submitted that the application under Section 9 of the Arbitration Act was filed on 11th May, 2015 and the arbitration was invoked on 27th June, 2015. Since there was a disagreement between the parties with regard to appointment of an Arbitrator, the Court has appointed an Arbitrator on 29th June, 2016. The Amendment Act came into force on 23rd October, 2015. The 3 Learned Senior Counsel relied upon a Single Bench decision of the Madras High Court delivered on 10.03.2016 in Jumbo Bags Ltd. Vs. The New India Assurance Co. Ltd. reported in MANU/TN/0353/2016 and two unreported decisions of the Coordinate Bench of this Court, namely, GA No.145 of 2016 with AP No.15 of 2016 passed on 2nd March, 2016 in Sri Nitya Ranjan Jena Vs. Tata Capital Financial Services Ltd. and EC No. 301 of 2012, GA No.1406 of 2016 dated 17th May, 2016 in M/S. Reliance Capital Limited Vs. Chandana Creations & Ors. and submitted that the Amendment Act has no manner of application in so far as the present proceeding is concerned and the observations of the Hon'ble Division Bench with regard to the retrospective operation of the Amendment Act in respect of proceedings which were admittedly initiated prior to 23rd October, 2015 was not what the Amendment Act intended and the Division Bench appears to have over looked this aspect of the matter. The Learned Senior Counsel would try to persuade this Court by making a reference to a Division Bench decision in terms of Chapter 5 Rule 2 and Chapter XXXIA Rule 1 of the High Court Original Side Rules. The Learned Senior Counsel has also referred to a Full Bench decision of this Court reported in AIR 2009 Calcutta 140, paragraph 58, and a decision of the Hon'ble Supreme Court in Central Board of Dawoodi Bohra Community and Anr. Vs. State of Maharashtra & Anr. reported in AIR 2005 SC 752 in paragraph 12 to persuade this Court to make a reference.
4
Although it appears that the argument of Mr. Kapoor has substance that an application under Section 9 of the Arbitration and Conciliation Act, 1956 filed prior to 23rd October, 2015 would be governed by un-amended 1996 Act but having regard to the Division Bench decision reported in Tufan Chatterjee (supra), I am bound by the said judgement. The relevant Rules referred to by the learned Senior Counsel as well as the decisions cited in order to persuade me to refer to a Division Bench, however, does not come to the assistance of the petitioner as it appears from the observations of the Full Bench, in paragraph 58 of the said report, that a Single Bench cannot differ from a judgment of a Larger Bench except when the decision or a judgment relied on in the decision has been specifically overruled by the Full Bench of the Supreme Court which is not a case here.
Under such circumstances, these applications fail. It is made clear that I have not gone into the merit of the matter.
( SOUMEN SEN, J.) nm