Madhya Pradesh High Court
Taj Hotel Resorts And Taj Mahal Palace ... vs Anil Sharma on 30 October, 2018
~1~
HIGH COURT OF MADHYA PRADESH
AA Nos. 76/2018, 77/2018
Indore, Dated: 30/10/2018
Shri Vijayesh Atre learned counsel for appellant in AA No.
76/18.
Shri Vinay Gandhi learned counsel for appellant in AA
No.77/2018.
Shri Bharat Chitale learned counsel for respondents in
both the arbitration appeals.
Appeals are admitted for hearing.
Pressing for interim relief, Shri Vinay Gandhi learned counsel for appellant in Arbitration appeal No. 77/18 submits that as per terms of the agreement the contract could be terminated with three month's notice, therefore, the respondent will be entitled to damages at the most for a period of 3 months. He submits that infact as per the agreement the damages were payable by respondent to appellant. In support of his submission he has placed reliance upon judgment of the Supreme court in the matter of Indian Oil Corporation Ltd. Vs. Amritsar Gas Service and others reported in 1991(1) SCC 533 and Division Bench judgment of this court in the matter of Indian Oil Corporation Ltd and others Vs. Govind Saraf Kisan Seva Kendra passed in WA No. 72/2017 dated 9/3/2017. He further submits that indirect losses have wrongly been granted which could have been mitigated by respondents by hiring it to someone else and in support of his submission he has placed reliance upon judgment of the Supreme court in the matter of Murlidhar Chiranjilal Vs. Harischandra Dwarkadas reported ~2~ in AIR 1962 SC 366 and judgment of Delhi High court in the matter of Tower Vision India Pvt. Ltd. Silvermoon Construction Pvt. Ltd. PVP Entertainment Ltd and another Vs. Omaxe Ltd. Procall Pvt. Ltd South Asian Hospitality Services Pvt. Ltd. reported in ILRDLH-2012 (22) 5368. He has further submitted that the arbitration agreement was never continued.
Shri Vijayesh Atre learned counsel for appellant submits that appellant in Arbitration Appeal No. 76/18 was not a party to the agreement therefore, the liability has wrongly been fastened on appellant. He submits that e-mail dated 2/3/2007 can not be taken to be a correspondent forming contract. In support of his submission he has placed reliance upon judgment of the Supreme court in the matter of Sandeep Kumar and others Vs. Master Ritesh and others reported in (2006) 13 SCC 567 and S.N. Prasad Hitek Industries (Bihar) Ltd. Vs. Monnet Finance Limited and others reported in (2011) 1 SCC 320.
Shri Bharat Chitale learned counsel for respondents opposing the prayer has submitted that the award as affirmed by dismissal of objection under Section 34 of Act is in the nature of money decree, therefore, the entire amount is required to be secured and referring to Order 41 Rule 5 (iii) CPC he has submitted that unless this court is satisfied about the security there is no question of granting any interim relief. He further submits that in the civil suit filed by respondents the application under Section 8 was jointly filed by both the appellant and that in the application filed by respondent under Section 11, the appellant in Arbitration Appeal No. 76/18 was a party and ~3~ thereafter the matter was referred, therefore the said order has attained finality. He further submits that before the arbitrator the appellant in Arbitron appeal No. 76/18 was duly served but he had not raised any objection by filing reply that he is not a party to the contract. In support of his submission that determination under section 11 of the Act is final. He has placed reliance upon judgment of the Supreme court in the matter of SBP & Co Vs. Patel Engineering Ltd and another reported in (2005) 8 SCC 618, National Insurance Company Limited Vs. Boghara Polyfab Pvt. Ltd. Reported in (2009) 1 SCC 267 and in support of his submission that normally the money decree should not be stayed, he has placed reliance upon the judgment of Supreme court in the matter of Kanpur Jal Sansthan and another Vs. Bapu Constructions reported in (2015) 5 SCC 267.
I have heard the learned counsel for the parties and perused the record.
In the proceedings under Section 11 of Arbitration and Conciliation Act, 1996 in the suit filed by respondents as also in the proceedings before the Arbitrator the appellants in both these appeals were parties and in fact both the appellants had jointly filed objection under Section 34 of the Act before the court below which has been decided by the order under challenge. The award of the Arbitrator is for a sum of Rs. 1,33,08,493/-. The award is in the nature of money decree against which the objections have already been rejected.
Considering the respective arguments of counsel for the parties and after examining the judgments relied upon by them and also considering the provisions contained under Order 41 ~4~ Rule 5 CPC and having regard to the fact that finding a prima facie case in favour of appellants the appeal has already been admitted and also considering the issue of balance of convenience and irreparable injury and in order to balance the equities and also taking note of the fact that during the pendency of the objection under Section 34 of the Act, the award had remained stayed by operation of law, the IA No. 5684/18 and IA No. 5330/18 are disposed off by directing that execution of the award under challenge shall remain stayed during pendency of these appeals, subject to furnishing security by appellants to the satisfaction of the executing court/court below within a period of 6 weeks from today.
C.C. as per rules.
(Prakash Shrivastava) Judge BDJ Bhuneshwar Datt 2018.11.02 11:07:30 -07'00'