Bangalore District Court
Regenta Hotels Pvt Ltd vs Abss Hotels Pvt Ltd on 29 November, 2025
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Com.A.A. 152/2025
KABC170011792025
IN THE COURT OF LXXXII ADDL.CITY CIVIL &
SESSIONS JUDGE, COMMERCIAL COURT,
BENGALURU (CCH-83)
PRESENT: SRI. VIDYADHAR SHIRAHATTI, LL.M.,
LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE,
BENGALURU.
Com.A.A.No.152/2025
Dated on this 29th Day of November 2025
Applicant Regenta Hotels Pvt. Ltd. Formerly
Known as Royal Orchid Associated
Hotels Private Limited, A Company
incorporated under the provisions
of the Companies, Act, 1956,
having its registered office at No. 1,
Golf Avenue, Kodihalli, Off Airport
Road, Bangalore - 560 008,
represented herein by its
authorised signatory Mr. Amit
Jaiswal.
(By Sri. M.V. Sundaraman -
Advocate)
//versus//
Respondent ABSS HOTELS PVT. LTD. A company
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Com.A.A. 152/2025
incorporated under the Companies
Act, 1956, Having its registered
office at Joygachi, Netaji Murti
House No. 298/288, Jessore Road,
Habra Parganas North 743263, West
Bengal, Represented by its
Managing Director - Mr. Binay Patra
(By Sri. Karan Gupta -
Advocate)
ORDERS
1. The petition filed under Section 9 of
Arbitration and Conciliation Act, 1996 for seeking
the following reliefs:
a. Issue an order of injunction restraining the
respondents, their directors, representatives,
successors-in-interest and anyone claiming
under/through them from operating/managing
the Hotel/Schedule Property under any name
or brand contrary to the terms of the Hotel
Operation Agreement dated 04.11.2021
between the Petitioner and the Respondent;
b. Issue an order of injunction restraining the
respondents, their directors, representatives,
successors-in-interest and anyone claiming
under/through them from creating any third
party interest/ arrangement with respect to
the Schedule property contrary to the terms of
the Hotel Operation Agreement dated
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04.11.2021 between the Petitioner and the
Respondent;
c. Issue an order of injunction restraining the
respondents, their directors, representatives,
successors-in-interest and anyone claiming
under/through them from dispossesing or
interfering with the Petitioner's operations of
Hotel/Schedule Property except in accordance
with law;
d. Issue an order of injunction restraining the
respondents, their directors, representatives,
successors-in-interest and anyone claiming
under/through them from removing the
Petitioners brand Signages from the
Hotel/Schedule Property and operating the
Hotel/Schedule Property under any other
signage, contrary to the terms of the Hotel
Operations Agreement dated 04.11.2021
between the Petitioner and the Respondents
e. Issue an order of injunction restraining
the respondents, their directors,
representatives, successors-in-interest and
anyone claiming under/through them from
operating any website in relation to the Hotel,
contrary to the terms of the Hotel Operation
Agreement dated 04.11.2021 between the
Petitioner and the Respondent;
f. Grant such other further relief as this court
deems fit, in the interest of justice.
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g Direct the respondent to pay costs of these
proceedings.
2. The Brief facts as per petition are as follows:-
2.1. The Petitioner is a company incorporated under the
provisions of the Companies Act, 1956 and carrying on the
business, inter alia, of operating hotels and providing
hospitality services in India. The Petitioner is engaged in
the business of running, managing, administering, and
operating hotels and other businesses in the hospitality
sector and has established itself as one of the most
reputed companies in the said business. The Petitioner is
part of the prestigious Royal Orchid Group of hotels which
has more than 100 business and leisure hotels in India.
The quality of services which are associated with this
brand are well reputed in the hospitality services sector.
The Petitioner is represented in these proceedings by its
authorised representative, Mr. Amit Jaiswal. the Petitioner
being one of India's finest and fastest growing hotel chains
and being one of the most sought-after hospitality brands
in the industry, enters into hotel operation agreements
with owners of properties, guiding them on delivering end-
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Com.A.A. 152/2025
to-end solutions, starting from design conceptualisation to
viably managing the operations of the hotels and resorts
and lending them the goodwill associated with the
internationally renowned "Royal Orchid", "Regenta" and
"Regenta Central" brand names, amongst others. The
Petitioner vide such arrangements/agreements, shares its
know how and deploy its operating expertise to manage
such hotels and allow the hotels to be marketed under the
Petitioner's reputed brand name, in consideration of
payment of a Management fees based on revenue,
operational profits etc.
2.2. The Respondent represented to the Petitioner that
he is the owner of the land and building constructed
thereon at Plot No. 2, Sector B-1, New Digha, West Bengal.
The Respondent approached the Petitioner to avail its
technical know-how and experience in development,
commencement and operation of a modern hotel of
approximately 45 rooms. The Respondent was desirous of
availing the brand reputation, technical know-how,
training, expertise, brand standards to run and operate its
hotel as a premium hotel under the Petitioner's brand.
Being well aware of the Petitioner's international standing
and reputation in the hospitality industry. The Respondent
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approached the Petitioner with a proposal for the
Petitioner to develop and operate the Respondent's hotel
in consideration of the payment of fees.
2.3. After rounds of negotiations and discussions, the
Petitioner and the Respondent entered into a Hotel
Operations Agreement dated November 04, 2021
(hereinafter referred to as "Agreement") to develop and
operate the Respondent's hotel under the Petitioner's
brand and offered brand name "Regenta Inn". In terms of
the Agreement, the Petitioner, provided its technical skills
and expertise in architecture, engineering, interior
designing, furnishing and equipping the Hotel. The
Petitioner, at its own cost and expense, deputed various
teams to train the staff of the Respondent and provide
them technical expertise and know-how in order to
operate and manage a Hotel of the premium 'Regenta Inn'
brand. The Petitioner invested large sums of money in this
exercise in order to ensure that the Hotel meets the
standards of a modern, luxury hotel of international
standards. The Petitioner also expended enormous efforts
and spent vast sums of money to promote the Hotel at
trade fairs and other marketing platforms. The Petitioner's
technical inputs and brand experience in this regard was
the essence of the Agreement. The Respondent, who is a
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novice in the hotel industry, was keen on tapping the
Petitioner's reputation, experience and know-how in
establishing a premier hotel and also avail the goodwill
associated with the Royal Orchid brand in order to
promote and establish the Hotel. Under the Agreement,
the parties agreed that the Hotel would be managed and
operated exclusively by the Petitioner. The Respondent
agreed to pay the Petitioner a basic management fee
equivalent to three percent (3%) of the Total Revenue of
the Hotel. In addition to the Basic Management Fee, the
Respondent also agreed to pay the Petitioner Sales and
Marketing Fees of 1% of Gross Room Revenue and an
Incentive Management Fee of six percent (6%) of the
Gross Operating Profits of the Hotel or Rs. 2,50,000/- plus
taxes whichever is higher. Article XXIV stipulates that the
term of the Agreement is twenty (20) years from the
commencement of operations of the Hotel. The Hotel
commenced operations from April, 2022. The Agreement
is valid till April, 2042.
2.4. Since commencement of operations from April, 2022
under the trademark/brand name of Petitioner, the Hotel
has built a significant customer base in India and abroad.
There has been a considerable increase in the number of
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Indian and international customers visiting the Hotel. This
was solely due to the Petitioner's brand value and the
Petitioner's efforts in revamping the existing hotel and
converting it to a premium luxury standard hotel. As is
apparent from the narration above, the Respondent has
greatly benefitted from the reputation, brand value,
expertise, hard work and efforts of the Petitioner. The
Petitioner has diligently and conscientiously performed all
its obligations under the Agreement and has ensured that
the Respondent has profited from it along with the
Petitioner. However, when things stood thus, the
Respondent started acting contrary to the terms of the
Agreement between the parties. Having learnt and
benefitted from the efforts of the Petitioner, the
Respondent has been interfering with the day-to-day
management of the Hotel. On a daily basis, the
representatives of the Respondent have been harassing
the employees appointed by the Petitioner for managing
the Hotel. In an attempt to unlawfully take over the
operations and management of the Hotel, the Respondent
has been taking active steps to prevent the General
Manager of the Hotel from performing his duties. A bare
perusal of Article V(10) of the Agreement stipulates that
the Respondent shall not interfere with the day to day
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operations of the Hotel. Further, Article V(2) of the
Agreement shows that all employees of the Hotel, shall be
under the direct supervision and control of the Petitioner.
Such discretion has been conferred upon the Petitioner to
enable it to fully utilise its knowledge and expertise in the
hotels/hospitality industry and provide a luxurious and
premium service to its customers. In gross disregard to the
said clauses of the Agreement, the Respondent has been
interfering in the operations/management of the Hotel and
continues to breach the contract between the parties. The
Respondent has ceased to share reports of the Hotels
operations to the Petitioner.
2.5. The Respondent has fully removed the Petitioner's
brand signages on the Hotel. The Respondents intention to
operate the Hotel as per its own whims is also apparent
from the fact that an independent website has been set up
by the Respondent to accept room bookings/reservation. A
plain reading of Article XXI(4) and Article V(11)(h) of the
Agreement require that the Respondent maintain the
Petitioners brand signages and online bookings only be
done through the Petitioners website
"www.royalorchidhotels.com". These actions of the
Respondent will result in fundamental and material breach
of the Agreement between the parties. The Respondent is
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not entitled to unilaterally terminate the Agreement unless
any of the grounds of termination (as provided under
Article XXV) are met. The Petitioner has accepted bookings
and reservations for customers across India. The
purported termination would cause enormous monetary
loss, hardship, and severe damage to the reputation to the
Petitioner. The conduct of the Respondent will also expose
the Petitioner to lawsuits from its customers and burden
the Petitioner with unrequited legal expenses to defend
itself. The petitioner has an excellent prima facie case.
The balance of convenience lies in favour of granting the
petitioner an injunction has prayed for as it would not
disrupt the operations of the Hotel in anyway. The grave
injustice will be cause to the petitioner if the Respondent
is allowed to terminate the agreement. In view of the
above, it is most expedient that this court grant an
injunction to restrain the Respondent from unilaterally and
unlawfully terminating the Agreement and attempting to
dispossess the Petitioner from the Hotel. The balance of
convenience lies firmly in favour of granting an injunction
to the petitioners as prayed for.
3. The respondent appeared and filed an objection
stating that, the petition is based on suppression of
material facts/ documents, evidently false statement and
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seeks reliefs barred by law. The petition is riddled with
inconsistencies and illegalities, all of which require the
petition to be dismissed. The petitioner as well as the
authorized representative have committed perjury and
misled this court by suppressing key documents by email
dated 15.11.2022, 15.06.2023, 16.11.2023, 07.04.2024
and 28.05.2024. The petitioner has also concealed
numerous other documents/emails, including misleading
forecasts shared by it to induce the agreement. The
petitioner has also conveniently tided over the fact that it
was paid/illegally paid at the expense of the Respondent
of Rs. 56,77,073/-. It is evidence that the petitioner misled
this court by suppressing key and material facts. The
petitioner seeking injuctive reliefs over an agreement
which is no longer subsisting. The petitioner sought
numerous injunctive reliefs arising solely out of the Hotel
Operations Agreement dated 04.11.2021. The petitioner
has deliberately concealed that vide the respondent's
email dated 28.05.2024, the Respondent exercised its
option of viodability, given that the agreement was formed
due to the petitioner's misrepresentations, and
consequently, without the Respondent's free consent. The
email communications issued by the Respondent, all
constitute written notices of breach to the Petitioner, who
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failed to carry out corrective measures in accordance with
Article XXV of the agreement. The petitioner has made
numerous statement such as, the petitioner asserts that it
deputed teams at its own cost and expense to purportedly
train the Respondent's staff, while in reality any cost
incurred by the Petitioner's staff for its limited and
haphazard visits were borne by the Respondent. The
agreement provided for expenses to be borne by the
Respondent, which was duly done. Second, the petitioner,
with a view of unjustly enrich falsely asserts that the hotel
operations commenced from April 2022, when in reality
the Hotel operation commences belatedly only in and
around March 2023 due to the delays attributable to the
petitioner. Third, the petitioner asserts that it " diligently
and conscientiously performed all its obligations" while
deliberately concealing all emails/communications
produced over the period of two years wherein the
Respondent point out the abject failure of the petitioner in
complying with its obligations and representations. Fourth,
the respondent took steps to prevent the General Manager
from performing his duties, whilst deliberating misleading
this court on the contents of the email dated 12.03.2025,
which was written by the General Manager himself
affirming that the Respondent had cooperated completely.
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Fifth, to concoct a cause of action/urgency, the petitioner
has misled this court by asserting that the Respondent
issued an email dated 12.03.2025, where in fact, a closer
look reveals that the email was issued by the General
Manager - an employee of the petitioner itself.
3.2. It is also taken a contention that, Section 9 of
Arbitration and Conciliation Act, is equitable in nature and
the conduct of the claiming party is determinative in the
grant of relief. The petitioner purports to produce only
three hash values are identical in nature, an impossibility,
which is revealing of the petitioner's conduct. However,
these documents are not bear any notarization stamp
which violates the law mandated in the agreement, it at
all, provided a limited and restricted right to the petitioner
to enter and operate from the hotel. At no point of time
was physical or jural possession of the Hotel handed over
to the Petitioner. Therefore, the allegations made by the
petitioner as denied by the Respondent. Hence, he prayed
to dismiss the petition under Section 9 of Arbitration and
Conciliation Act.
3.3. During pendency of the petition the petitioner
has filed I.A.No.2 to 6 under Order 39 Rule 1 and 2 read
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with Section 151 of CPC and Section 9 of Arbitration and
Conciliation Act, for seeking a grant of temporary
injunction restraining the Respondents, its directors,
representatives, successors-in-interest and anyone
claiming under/through them from operating/managing
the Hotel/ Schedule Property under any name or brand
contrary to the terms of the Hotel Operation Agreement
dated 04.11.2021 between the Petitioner and the
Respondent. It is also taken a contention that, the
petitioner and respondent entered into Hotel Operations
Agreement dated 04.11.2021 to develop and operate the
Respondent's hotel under the petitioner's brand and
offered brand name "Regenta Inn". The Respondent has
been interfering with the day-to-day management of the
Hotel. On a daily basis, the representative of the
Respondent have been harassing the employees
appointed by the petitioner for managing the hotel. The
respondent shall not interfere with the day to day
operations of the hotel. As per Article V(2) of the
agreement, the respondent has ceased to share reports to
the hotel operations to the petitioner. AS per Arbitle V(1o)
of the agreement, the respondent is obligated to share all
relevant information pertaining to the operations of the
hotel. Therefore, the petitioner has claimed the
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Respondent's threats and actions towards terminating the
agreement constitutes gross breach of the agreement.
The petitioner will suffer irreparable financial and
reputational loss, if the agreement is terminated without
adhering to the stipulated term of agreement. Hence, the
petitioner sought interim order till disposal of the petition
filed under Section 9 of Arbitration and Conciliation Act.
3.4. The respondent has filed separate objection in each
applications and denied the contention raised by the
Petitioner.
4. I have heard the arguments of counsel for plaintiff
and Respondent.
5. Based on the above pleadings of the Plaintiff, the
following points arise for my consideration :-
1. Whether the Petitioner is entitled for a
relief of Interim Measure under Section 9
of Arbitration and Conciliation Act as
prayed in the Petition ?
2. What Order ?
6. My findings on the above Points are as under:
1. Point No.1 :- In the Negative.
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2. Point No.2 :- As per the final Order
for the following reasons.
REASONS
7. Point No.1: The petitioner has filed this petition
for seeking a various interim relief who being the operator
of the Respondent Hotel as per Hotel operation
agreement dated 04.11.2021. The agreement dated
04.11.2021 which is contain certain clause and the
defendant meaning of the operator and owner. The
petitioner which is Royal orchid associated hotels prvt
limited, a company is a operator. As per the said
agreement and present petitioner in the petition. Owner is
the Respondent by the name ABSS Hotels Pvt Ltd. clause
1 of the agreement which defines the owner is the sole
and absolute owner of land measuring 9374.4 Sq.ft along
with 45 guest room hotel building having total build up
area (BUP) of 27731.50 sq.ft at Plot No.2 Sector - B1, New
Digha, West Bengal.
8. Clause 2 speaks about the operator has the requisite
industrial, commercial and scientific knowledge and has
experince, skill and technical know how for the operation
of such a hotel, as mentioned herein before and has been
approached by the Owner to allow the Owner the use, in
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consideration of fees hereinafter mentioned, the said
industrial, commercial and scientific knowledge as also
the expertise, experience, skill and technical knowhow for
commencement and operation of such a hotel.
9. As per the above said clause the operator is having
a limited rights and owner as also some rights and duties.
The contention of the petitioner that, the respondent is
interfering the day day business affairs of the hotel.
However, the Article 2 of the agreement as discloses
about the owner agrees and confirms that the operator
shall be the exclusive operator of the hotel and operator
shall accordingly supervise and direct the operation of the
Hotel. Operator hereby undertakes to discharge and
perform efficiently and with due diligence. The following
clause.
Institution and supervision of all operating
policies, reporting and control systems and
other procedures for all departments, including,
but not limited to general administration,
purchasing, accounting, credit policies
(including entering into agreements with credit
card organizations), front office, housekeeping,
security, food and beverage including kitchens,
restaurants, bars and banquets, engineering,
maintenance, laundry and dry cleaning.
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10. Clause 5 speaks about the dues of the operative
which reveals that, the II (5) which reveals that n the
performance of its duties as Operator of the Hotel,
Operator shall act solely as agent of Owner. Nothing in
this Agreement shall constitute or be construed to be or
create a partnership or joint venture between Owner and
Operator. Therefore, Article 2(5) clearly speaks that, the
operator is not having partnership rights or joint venture
with owner and operator is having a limited rights.
11. In Article 5 (2) of the agreement speaks about
employee of the hotel, which reads as All employees, be it
casual or permanent, shall be employees of the Owner,
except the General Manager, who shall be an employee of
the Operator. The Financial Controller shall be employed
by the Owner with the consent of the Operator. All costs,
salary and expenses, including all benefits due and or
accrued, as per policies of the Operator, related to the
employment of the General Manager shall be reimbursed
along with applicable taxes before 30 th of the current
month to the Operator from the Hotel's Operating
Account. The such clause speaks about status of
employee and General manager. The owner shall be solely
responsible for any claims, loss or damages to employees
or any claims, loss or damages to the property, person or
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data or to the operator, from the action and inaction of
employees, fraud, labour unrest or litigation or third
parties, or authorities or any court of law. These clauses
are very clear that, the owners are having a more rights
of the operator is very limited, but he has act has a
supervisor of the day to day affairs of the hotel.
12. However, in this regard, the petitioner has claimed
that the order of injunction restraining the respondents,
their directors, representatives, successors-in-interest and
anyone claiming under/through them from
operating/managing the Hotel/Schedule Property under
any name or brand contrary to the terms of the Hotel
Operation Agreement dated 04.11.2021 between the
Petitioner and Respondent.
13. The Advocate for the Petitioner has relied the
Judgment in 2009 SC Online Kar 721 between Pankaj
Mohan Associates vs. South Western Railways,
wherein Hon'ble High Court of Dharwad held in para 9 as
thus:
9. The District Judge held that if there is
breach of contract by the respondents, then
the remedy to the appellants is to seek
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damages and not injunction. It is further held
that grant of injunction will amount to grant of
specific performance of agreement or in the
alternative it amounts to creation of a new
contract. This reasoning of the District Judge is
illegal and perverse. It is settled position of law
that whenever there is breach of contract,
three remedies are available and they are
specific performance of agreement, injunction
and damages. It is for the Court to examine
and to find out which relief will be appropriate
in the facts and circumstances of a given case.
In the instant case, the District Judge has not
examined whether the remedy of injunction is
inappropriate in the facts and circumstances of
this case. The agreement between the parties
was entered on 8-6-2007. The period fixed
under the agreement of lease is three years.
Further, Para 20.1 of the agreement provides
for extension of lease by two more years
subject to enhancement of lease rate by 25%.
The termination of agreement on the ground
that the appellants have violated Para 15.5 of
the agreement on 14 different occasions is not
a termination simpliciter. This termination of
agreement will have far-reaching civil
consequences on the appellants and the same
is a stigma on them. If the reason shown by the
respondents in this order of termination is
found to be false and arbitrary, then the
appropriate remedy is to stay the order of
termination and to restore the parties to earlier
position. In the circumstance, damages is not
the appropriate remedy. Hence, the finding of
the District Judge is liable to be set aside.
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14. In MANU/KA/2596/2016, M.F.A No. 2173/2013
between Bharat Petroleum Corporation vs. B.G.
Arunkumar, wherein Hon'ble High Court of Karnataka
held in para 19 as thus:
19. In the arbitration proceedings, the applicant
has filed the claim statement by contending
that the purported grounds of termination are
wholly unsustainable and the proposed action is
both unjust and not maintainable in law. He has
raised the grounds that the extant guidelines
relied on by the respondents have no legal
sanction or existence in the eye of law and they
would not be binding to the instant case. The
question as to whether the LPG facility allotted
to the applicant is a new business or not or it is
supplement to the original outlet needs to be
considered by the Arbitrator. Various other
objections in relation to termination of
agreement have been raised by the applicant.
The proceedings are yet to be concluded by the
Arbitrator. In the meantime, if the respondents
proceed to take action, the applicant will suffer
irreparable loss and injury.
15. In 2024 SCC Online Del 6299 between Deen
Dayal Anand Kumar Saraf vs. Paras Agarwal T/A/
M/s Purushottam Agarwal Co, wherein Hon'ble Court
of Delhi held in para 16 and 17 as thus:
16. There is no cavil that the party approaching
the Court must fully disclose all the material
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facts and any party approaching the Court with
unclean hands would not be entitled to any
discretionary relief. The decision whether a
party should be denied discretionary relief
solely on account of non-disclosure of any
fact(s) must be informed by addressing the
following questions: (a) whether the fact(s)
supressed are vital and material to the relief
sought for by the party; and (b) whether the
fact has been supressed deliberately.
17. The question whether the fact(s) supressed
are material to the relief sought, must be
determined by examining whether the
disclosure of such fact(s) could possibly lead to
an adverse decision. It is only the non-
disclosure those facts, which are adverse to the
case of the party, that warrant denial of
discretionary relief. It is necessary for the Court
to consider whether disclosure of the facts,
which a party has failed to disclose, could
possibly result in an unfavourable decision for
the party. Clearly, non-disclosure of facts that
are favourable to the case of the Party, would
not warrant denial of discretionary relief to that
party.
16. In 2004 (7) SCC 166 between SJS Business
Enterprises (P) Ltd., vs. State of Bihar and Others,
wherein Hon'ble Supreme Court held in para 14 as thus:
14. Assuming that the explanation given by
the appellant that the suit had been filed by one
of the Directors of the Company without the
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knowledge of the Director who almost
simultaneously approached the High Court
under their Article 226 is unbelievable (sic), the
question still remains whether the filing of the
suit can be said to be a fact material to the
disposal of the writ petition on merits. We think
not. The existence of an adequate or suitable
alternative remedy available to a litigant is
merely a factor which a court entertaining an
application under Article 226 will consider for
exercising the discretion to iuuse a writ under
Article 226. But the existence of such remedy
does not impinge upon the jurisdiction of the
High Court to deal with the matter itself if it is in
a position to do so on the basis of the affidavits
filed. If, however, a party has already availed of
the alternative remedy while invoking the
jurisdiction under Article 226, it would not be
appropriate for the court to entertain the writ
petition. The rule is based on public policy but
the motivating factor is the existence of a
parallel jurisdiction in another court. But this
Court has also held in Chandra Bhan Gosain v.
State of Orissas that even when an alternative
remedy has been availed of by a party but not
pursued that the party could prosecute
proceedings under Article 226 for the same
relief. This Court has also held that when a party
has already moved the High Court under Article
226 and failed to obtain relief and then moved
an application under Article 32 before this Court
for the same relief, normally the Court will not
entertain the application under Article 32. But
where in the parallel jurisdiction, the order is not
a speaking one or the matter has been disposed
of on some other ground, this Court has, in a
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suitable case, entertained the application under
Article 327. Instead of dismissing the writ
petition on the ground that the alternative
remedy had been availed of, the Court may call
upon the party to elect whether it will proceed
with the alternative remedy or with the
application under Article 2268. Therefore, the
fact that a suit had already been filed by the
appellant was not such a fact the suppression of
which could have affected the final disposal of
the writ petition on merits.
17. In 2022 (20) SCC 178 between Essar House
Private Limited vs. Arcellor Mittal Nippon Steel
India Limited, wherein Hon'ble Supreme Court held in
para 38 as thus:
38. In deciding a petition under Section 9
of the Arbitration Act, the Court cannot ignore
the basic principles of CPC. At the same time,
the power of the Court to grant relief is not
curtailed by the rigours of every procedural
provision in CPC. In exercise of its powers to
grant interim relief under Section 9 of the
Arbitration Act, the Court is not strictly bound
by the provisions of CPC
.
18. In 2012 SCC Online Bom 287 between Nimbus
Communications Limited vs. BCCI, wherein Hon'ble
High Court of Bombay held in para 22 as thus:
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22. The judgment of the Supreme Court
in Adhunik Steels has noted the earlier decision
in Arvind Constructions which holds that since
section 9 is a power which is conferred under a
special statute, but which is exercisable by an
ordinary Court without laying down a special
condition for the exercise of the power or a
special procedure, the general rules of
procedure of the Court would apply.
Consequently, where an injunction is sought
under section 9 the power of the Court to grant
that injunction cannot be exercised
independent of the principles which have been
laid down to govern the grant of interim
injunctions particularly in the context of the
Specific Relief Act 1963. The Court,
consequently would be obligated to consider as
to whether there exists a prima facie case, the
balance of convenience and irreparable injury
in deciding whether it would be just and
convenient to grant an order of injunction.
Section 9, specifically provides in sub-clause
(d) of clause (ii) for the grant of an interim
injunction or the appointment of a receiver. As
regards sub-clause (b) of clause (ii) the interim
measure of protection is to secure the amount
in dispute in the arbitration. The underlying
object of Order 38, Rule 5 is to confer upon the
Court an enabling power to require a defendant
to provide security of an extent and value as
may be sufficient to satisfy the decree that
may be passed in favour of the plaintiff. The
exercise of the power to order that security
should be furnished is, however,
preconditioned by the requirement of the
satisfaction of the Court that the defendant is
26
Com.A.A. 152/2025
about to alienate the property or remove it
beyond the limits of the Court with an intent to
obstruct or delay execution of the decree that
may be passed against him. In view of the
decisions of the Supreme Court both in Arvind
Constructions and Adhunik Steels, it would not
be possible to subscribe to the position that the
power to grant an interim measure of
protection under section 9(ii)(b) is completely
independent of the provisions of the Code of
Civil Procedure 1908 or that the exercise of
that power is untrammelled by the Code. The
basic principle which emerges from both the
judgments of the Supreme Court is that though
the Arbitration and Conciliation Act, 1996 is a
special statute, section 9 does not either
attach a special condition for the exercise of
the power nor does it embody a special form of
procedure for the exercise of the power by the
Court. The second aspect of the provision
which has been noted by the Supreme Court is
the concluding part of section 9 under which it
has been specified that 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. This has been
interpreted in both the judgments to mean that
the normal rules that govern the Court in the
grant of an interlocutory order are not
jettisoned by the provision. The judgment of
the Division Bench of this Court in National
Shipping Company (supra) notes that though
the power by section 9(ii)(b) is wide, it has to
be governed by the paramount consideration
that a party which has a claim adjudicated in
its favour ultimately by the arbitrator should be
27
Com.A.A. 152/2025
in a position to obtain the fruits of the
arbitration while executing the award. The
Division Bench noted that the power being of a
drastic nature, a direction to secure the
amount claimed in the arbitration petition
should not be issued merely on the merits of
the claim, unless a denial of the order would
result in grave injustice to the party seeking a
protective order. The obstructive conduct of the
party against whom such a direction is sought
was regarded as being a material
consideration. However, the view of the
Division Bench of this Court that the exercise of
power under section 9(ii)(b) is not controlled by
the provisions of the Code of Civil Procedure
1908 cannot stand in view of the decision of
the Supreme Court in Adhunik Steels.
19. In 2016 SCC Online Del 4152 between Shine
Travels and Cargo Pvt. Ltd vs. Mitsui Prime
Advanced Composite India Limited, wherein Hon'ble
High Court of Delhi held in para 7 as thus:
7. It is not disputed that the parties had
agreed that the disputes as to the
interpretation of the Agreement or as to the
duties or liabilities of either party or any matter
arising out of or under the agreement in
question, would be referred to and settled by
the Sole Arbitrator to be appointed by the
parties. It is also an admitted case that the
respondent continued to avail all the services
under the said Agreement even beyond its
term. Infact, the respondent expressly stated in
28
Com.A.A. 152/2025
its letter dated 29.09.2015 that "till such time a
fresh Agreement is entered into with mutually
agreed rates and period of Agreement, our
Clinet agreed to continue to avail services at
the rates specified in the Second Service
Agreement, as an interim measure. Your client
agreed to the interim measures and continued
to provide service at the rates stated int eh
Second Service Agreement."
20. In Manu/KA/5305/2022 (DB) between Toyota
Kirloskar Motor Private Limited vs. Radha Madhav
Automobile (P) Limited, wherein Hon'ble High Court of
Karnataka held in para 22, 23 and 24 as thus:
22. We have given our anxious consideration to
the various pleadings/submissions and material
on record. The law with regard to grant of
interim relief is no more res integra. The
principles governing the grant of interim relief
are well settled and we can state without the
fear of contradiction that one of the primary
criterion would be balance of convenience or the
relevant hardship that a granrima denial of the
interim order may cause or result to the parties.
23. The nature of business is not in dispute. The
appellant is a manufacturer and the respondents
are its dealers, in the sense, that they are
authorized to sell the motor vehicles
manufactured by the appellant and also run the
business of sale of spare parts and servicing and
29
Com.A.A. 152/2025
repairs. The parties complement one another. It
is not the case of the appellant that they have
not conducted any business with respondents. In
fact the reading of the order would show that the
respondent in the lead appeal alone has over the
years transacted business in excess of 140
crores. The long standing nature of the business
and the findings with regard to investments,
employment of hands to carry the business of
dealership cannot be denied. The trial Court has
also taken all these factors into consideration.
The fact remains that the denial of the interim
relief as prayed for by the respondents would
have without doubt resulted in serious hardship
to the respondents. It is apparent that they have
been eaking out their livelihoods and have in
fact incurred investments in excess of 100 crores
solely on the strength of the business
arrangement with the appellant. That apart even
assuming the appellant desires to establish
alternate dealers and service centers it would
also takes considerable time, which in our
opinion cannot be less than 7 to 9 months
because the nature of business mandates huge
workshop and overheads, manpower, etc., On
the other hand if the interim order is denied the
respondents herein would be totally denied of
their livelihood, which in turn would have had a
cascading effect i.e., not only on the customers
who have booked their motor vehicles with the
plaintiffs/respondents herein, but would have
jeopardized the livelihoods of more than
thousand workmen who are presently employed
by the respondents. Though much has been said
by the appellant that the respondents are not
reaching targets and resulting in losses, the
30
Com.A.A. 152/2025
actual figures have not been placed before the
Court rather the alleged loss suffered by the
appellant is not even perfunctorily quantified.
That apart as noted by the Court, any
appointment of a new dealer would require
atleast a timeline of few months, meaning
thereby zero turnover for the appellant itself and
it is not the case of the appellant that the
respondents have not carried out any business.
Though such an attempt was made by trying to
pick certain words in the communication, in the
reply letters placed by the respondents the facts
and figures as to how many motor vehicles have
been supplied by the appellant to the
respondents and how many have been sold or
not are all information which are well within the
reach of the appellant and we can say even
within the knowledge of the appellant. The
appellant has not been able to make out a case
as to how the interim order prejudices them. In
fact, if the interim order is implemented and if
the appellant is directed to supply the motor
vehicles or in other words utilize the services of
the respondents to market and sell their
products it would in no way diminish their
business or their profits. Per contra, in the
absence of the interim order it would sound the
death-knell to the respondents and its workmen.
24. As noted by us supra, this is neither a stage
nor does the circumstance warrant for a
pronouncement as to the fact subsistence of the
agreement; whether the agreements subsists or
whether an inference can be drawn regarding
subsistence of the agreement from the
surrounding circumstances, like the
31
Com.A.A. 152/2025
communication letters, recommendations, etc.,
are all matters in the realm of trial. That apart
any such observations would render nugatory
the appointment of an arbitrator and which in
law, is impermissible. That apart seeing the
peculiar circumstances we are in complete
agreement with the nature of relief granted by
the trial Court. In our opinion there could be no
other interim relief that could be granted. It can
be gainfully argued that the parties be made to
await the final determination. As detailed above,
the circumstances are such that the termination
would definitely result in harsh consequences
and which position cannot be regained, in other
words, it would not be possible to turn the clock
back, in the event of the respondent succeeding.
That apart the interim relief granted also does
not cause any loss much less any hardship to the
appellants. More over we also note that the trial
Court has not tied down the hands of the
appellant.
21. In MANU/KA/0602/2015 between Tiffins Bartyes
Asbestos vs. P and D Enterprises, wherein Hon'ble
High Court of Karnataka held in 13 and 14 as thus:
13. The contention on behalf of the appellant
that it would be hit by Section 14(c) and (d) also
cannot be accepted. As noticed, the right to
determine the agreement as contained in the
agreement also has conditions attached to it
and these are all aspects which would be
decided in the arbitration though we have prima
facie noticed it for the present purpose. Further,
32
Com.A.A. 152/2025
the question of performance of the contract
involving a continuous duty and the difficulty in
supervising the same by Court as contended by
the learned senior counsel for the appellant also
would not arise. That is because the injunction
granted by way of interim measure would
neither be in the nature of granting specific
performance nor would the Court have to
supervise the same until the completion of the
lease period. All that is sought to be done at
this stage is to protect the interest of the
parties till the matter is concluded in arbitration.
In that regard, as rightly pointed out by the
learned senior counsel for the Respondent and
as seen from the document at Annexure-R14,
the arbitration proceedings has been started in
all earnestness and a time schedule has been
fixed by the Arbitrator. From the time schedule
as seen, the period for filing of the draft issues
was indicated as 21.01.2015 which has already
gone by. Though such time frame has been
fixed, the allegation is that the appellant
themselves have delayed the proceedings by
not filing their reply before the arbitrator. In any
event, when the Arbitrator seeks to conclude
the proceedings in a time bound manner, the
interim measure would operate only till the
proceedings are concluded before the arbitrator.
14. If all the above aspects are kept in view
and also the provision contained in Section 42
of the Specific Relief Act is taken note, keeping
in view Clause 6 contained in the agreement
between the parties herein, the attempt made
by the appellant to shutout the respondent even
before the procedure as indicated in Clause 7
33
Com.A.A. 152/2025
and 8 of the agreement for termination was
followed would certainly entitle the respondent
for grant of interim measure to protect their
right pending the arbitration proceedings. The
terms of the agreement and in that regard, the
sequence that was followed would indicate that
the respondent has made out not only a prima
facie case, but the balance of convenience is
also in their favour. Though the appellant has
contended that the mining lease is sought to be
cancelled if the rectification is not made,
rectification if any can happen if the respondent
is instructed by the appellant to carry-out such
rectification work. Therefore, in that
circumstance, if the appellant is permitted to
prevent the respondent from working and as an
alternative, the appellant secure any other
party to carry-out the work, it will cause
irreparable injury to the respondent.
22. I have gone through the above judgments which is
clear that, the petitioner shall approach this court with
clean hand. As per the agreement it reveals that, the
petitioner who being the operator but having a limited
rights. The mode of payment also mentioned in Article XIII
which speaks that, the operator shall transfer to the
owner the available surplus from gross operating profit of
the hotel, after payment of fees to operator as detailed in
Article XII and after retaining reasonable funds required as
working capital for smooth functioning of the hotel.
34
Com.A.A. 152/2025
Therefore, the mode of payment also mentioned.
23. Further, that email dated 12.03.2025 issued by
General Manager. The said email has been issued by the
General Manager which reads as thus:
Greetings from Regenta in Digha....
I don't know what happened earlier in my tenure
there is no harassment from owner side at all
owner side at all owner just as k about business
update that all other wise owner is very
supportive and not interfair in operation at all..
24. The such email itself clear, there is no any
harassment is in the side of owner i.e., respondent. Once
the petitioner sent message, the petitioner is not at all
hide any information regarding interference or
harassment by the owner side. The mail dated 14.02.2023
evident that, in February 2023, received Rs. 13,86,500/-
for the invoices shared through mail dated 29.01.2023 as
document No.2 of the petitioner.
25. Despite of all communication the general manager
being an employee of the petitioner, there was complete
lack of communication between the petitioner and its own
employee, leading to frequent changes in the General
Manager with disruptions to the hotel's operations. In and
35
Com.A.A. 152/2025
around the same time, the respondent faced new
problems. The respondent has noticed that, the petitioner
sought to charge the respondent Manager fee which far
exceeded the amount of revenue it brought in for the
hotel through its involvement. The respondent was
constrained to issue an email dated 07.04.2024 to the
Respondent highlighting that while the petitioner had
brought in purported sales of RS. 26,46,955/- only, the
sought to charge the Respondent a Management fee of
Rs. 35,40,000/-. Therefore, the Respondent also attached
projection sheet shared by the Petitioner assuring the
respondent that its operations and purported expertise
would bring in close to Rs. 1.32 crore. The petitioner also
issued baseless notices and by sending the email, which
all clearly goes to shows that the petitioner is not come
with the clean hand. Hence, the above relied judgment
are entirely different from the case in hand.
26. The Advocate for Respondent has relied the
Judgment in 1994 (1) SCC (1) between S.P.
Chengalvaraya Naidu vs. Jagannath, wherein Hon'ble
Supreme Court held in para 6 as thus:
The facts of the present case leave no manner
of doubt Jagannath obtained the preliminary
36
Com.A.A. 152/2025
decree by playing fraud on the that securing
something by taking unfair advantage of
another. It is a court. A fraud is an act of
deliberate deception with the design of
deception in order to gain by another's loss. It is
a cheating intended to Sowcar. He purchased
the property in the court auction on behalf of
get an advantage. Jagannath was working as a
clerk with Chunilal release deed (Ex. B-15) in
favour of Chunilal Sowcar regarding the Chunilal
Sowcar. He had, on his own volition, executed
the registered decretal amount to his master
Chunilal Sowcar. Without disclosing all property
in dispute. He knew that the appellants had paid
the total ground that he had purchased the
property on his own behalf and not these facts,
he filed the suit for the partition of the property
on the of the release deed at the trial is
tantamount to playing fraud on the on behalf of
Chunilal Sowcar. Non-production and even non-
mentioning court. We do not agree with the
observations of the High Court that the
registered copy of Ex. B-15 and non-suited the
plaintiff. A litigant, who appellants-defendants
could have easily produced the certified
approaches the court, is bound to produce all
the documents executed by him which care
relevant to the litigation. If he withholds a vital
document in order to gain advantage on the
other side then he would be guilty of playing
fraud on the court as well as on the opposite
party.
27. In 2024 INSC 46 between Kusha Duruka vs. The
State of Odisha, wherein Hon'ble Supreme Court held in
37
Com.A.A. 152/2025
Para 4,6 and 7 as thus:
4. Suppression or concealment of material facts
is not an advocacy. It is a jugglery, manipulation,
manoeuvring or misrepresentation, which has no
place in equitable and prerogative jurisdiction. If
the applicant does not disclose all the material
facts fairly and truly but states them in a
distorted manner and misleads the court, the
court has inherent power in order to protect itself
and to prevent an abuse of its process to
discharge the rule nisi and refuse to proceed
further with the examination of the case on
merits. If the court does not reject the petition
on that ground, the court would be failing in its
duty.
6. However, as the order has been obtained by
practising fraud and suppressing material fact
before a court of law to gain advantage, the said
order cannot be allowed to stand.
7. litigants can go to any extent to mislead the
court. They have no respect for the truth. The
principle has been evolved to meet the
challenges posed by this new breed of litigants.
Now it is well settled that a litigant, who
attempts to pollute the stream of justice or who
touches the pure fountain of justice with tainted
hands, is not entitled to any relief, interim or
final. Suppression of material facts from the court
of law, is actually playing fraud with the court.
The maxim supressio veri, expression faisi, i.e.
suppression of the truth is equivalent to the
expression of falsehood, gets attracted."
38
Com.A.A. 152/2025
28. In AP No. 851/2022 between Omkar
Tradecomm LLP vs. Mayank Agarwal, wherein Hon'ble
Calcutta High Court held in para 27,29 and 31 as thus:
27. It is axiomatic that any petitioner has
to approach the Court with 'clean hands' based
on good faith and has to produce before the
Court all material facts that are relevant for
adjudication of the said matter. The principle of
uberrima fides - abundant good faith - as stated
in The King -v- The General Commissioners for
the purpose of the Income Tax Acts for the
District of Kensington reported in (1917) 1 KB
486 applies in the present case. A litigant, who
does not bring on record the relevant true facts
before the Court, does not deserve to get any
relief from the Court.
29. In Oswal Fats & Oils Ltd. -v- Additional
Commissioner (Administration), Bareilly
Division, Bareilly and others reported in (2010)
4 SCC 728, the Hon'ble Apex Court held that a
person who approaches the Court for grant of
relief, equitable or otherwise, is under a solemn
obligation to candidly disclose all the material
facts which have bearing on the adjudication of
the issues raised in the case. In other words, he
owes a duty to the Court to bring out all the
facts and refrain from concealing/suppressing
any material fact within his knowledge or which
he could have known by exercising diligence
expected of a person of ordinary prudence
39
Com.A.A. 152/2025
In Sciemed Overseas Inc. -v- Boc India Limited
and others reported in (2016) 3 SCC 70, the
Hon'ble Apex Court referred referring to the
judgment of Muthu Karuppan -v- Parithi
Ilamvazhuthi reported in 2011 5 SCC 496 in
which it was held that the filing of a false
affidavit should be curbed effectively with a
strong hand. The Supreme Court noted that
though the observation was made in the
context of contempt of court proceedings, but
the view expressed must be generally endorsed
to preserve the purity of the judicial
proceedings. The relevant paragraph has been
extracted below :-
"Giving false evidence by filing false
affidavit is an evil which must be
effectively curbed with a strong hand.
Prosecution should be ordered when it
is considered expedient in the interest
of justice to punish the delinquent, but
there must be a prima facie case of
"deliberate falsehood" on a matter of
substance and the court should be
satisfied that there is a reasonable
foundation for the charge."
29. In CS(COMM) 990/2024 between DCM Sriram
Limited vs. Mr. Amreek Singh Chawla, wherein
Hon'ble Delhi High Court:
40
Com.A.A. 152/2025
30. In 164 (2009) DLT 530 between Bharat Catering
Corporation vs. India Railway Catering, wherein
Hon'ble Delhi High Court held in para 17-19
17. Apart from merits, even otherwise, in our
view, the scope and ambit of Section 9 do not
envisage the restoration of a contract which has
been terminated. The learned Single Judge, in our
view, rightly held that if the petitioner is
aggrieved by the letter of termination of the
contract and is advised to challenge the validity
thereof, the petitioner can always invoke the
arbitration clause to claim damages, if any,
suffered by the petitioner. It is not open to this
Court to restore the contract under Section 9,
which is meant only for the sole purpose of
preserving and maintaining the property in
dispute and cannot be used to enforce specific
performance of a contract as such.
19. The Supreme Court holding that these were
not matters to be considered in detail for
considering the prayer for interlocutory
injunction emphasized that it was incumbent
upon the Court hearing the injunction application
to consider the question whether if prayer for
interim injunction is refused the plaintiff-
petitioner will suffer irreparable loss which
cannot be adequately compensated by damages.
It was further held "ordinarily relief to be granted
to a plaintiff in such a matter is awarding of
damages and interim injunction of a mandatory
nature is not to be granted."
41
Com.A.A. 152/2025
31. In 2009 SCC Online Del 631 between Online
Hotel Reservations Pvt. Ltd. vs Classic Citi
Investment Pvt. Wherein Hon'ble Delhi High Court held
in para 3 as thus:
3. While passing the order under Section 9, the
Court cannot restore parties to previous position
as was there before arising of dispute so that no
dispute at all remains between the parties and
nothing could be referred to the arbitration...
Passing of an order that the contracts between
the parties shall continue during adjudication of
the dispute under the Arbitration and Conciliation
Act in fact would be allowing the entire relief to
the petitioner. The petitioner, if has suffered any
damages because of the termination of the
contact, is liable to claim damages through the
arbitration. The petitioner cannot impose itself as
a service provider on the respondent. The
contracts between the petitioner and the
respondent are the contracts of service, where
petitioner used to do online hotel booking of the
respondent's hotel rooms. No Court can force a
contract of service on someone, a contract of
service is not specifically enforceable. Section 14
of the Specific Relief Act provides that where
compensation in money is adequate relief for
non-performance, such a contract cannot be
specifically enforced. I consider therefore, that
this application/petition is not maintainable and is
liable to be dismissed and is hereby dismissed.
32. In 2012 SCC Online Del 113 between Indian
42
Com.A.A. 152/2025
Railways Catering and Tourism Corp Ltd vs. Cox and
Kings India Ltd, and Another, wherein Hon'ble Delhi
High Court held in para 9,20,23,25,27,33 as thus:
9...Issue No. 2: Whether relief of specific
performance could be granted under Section 9 of
the Act, in the given circumstances?
Issue No. 4: Could there be a mandatory
injunction of the nature passed by the learned
Single Judge?
Issue No. 5: After holding that the Court could not
restore the terminated agreement, whether the
Court could still pass an order which had the
effect of continuing the agreement/arrangement?
20. Issues No. 2 to 6 are the various facets of the
centre of controversy, namely, whether direction
in the nature given, which are in the nature of
mandatory injunction, amounted to specific
performance directing continuation of the
arrangement even when the agreement had been
terminated could be given or not.
23. The position that prevails today is that the
Joint Venture Agreement stands terminated
insofar as M/s C&K and IRCTC are concerned.
Likewise, the arrangement between IRCTC and
Joint Venture company, whether adhoc or
otherwise, stands terminated. Whether
termination of Joint Venture Agreement is bad in
law or it was justified can be resolved by means
of arbitration to be decided by the arbitral
tribunal. Whether arrangement for running the
train which was between IRCTC and Joint Venture
company is terminated validly or not is again an
43
Com.A.A. 152/2025
issue which can be decided by the arbitral
tribunal in the arbitration proceedings whether
between IRCTC and Joint Venture company or in
tripartite arbitration, if such tripartite arbitration
is permissible in law. (We may clarify that we are
not suggesting as to which proceedings would be
appropriate). At this stage, we only commend
that learned Single Judge is right in observing
that the Court, while dealing with application
under Section 9 of the Act, would not go into the
contentions of the parties and decide as to
whether termination of agreement is valid or not.
That is the issue which has to be settled in the
main arbitral proceedings. The learned Single
Judge is also right in observing that in these
proceedings, Court cannot restore the Joint
Venture Agreement which has been
terminated/rescinded. No doubt, Mr. Desai,
learned senior counsel for M/s C&K has filed the
counter objections to the impugned judgment
assailing the aforesaid part of the judgment. The
appellants had objected to the maintainability of
such objections. However, it is not necessary to
go into the same inasmuch as on merits, we feel
that the learned Single Judge has rightly held that
it is not within the scope of Section 9 to deal with
these contentions which would be the subject
matter of main arbitration proceedings and the
jurisdiction lies entirely with the arbitral tribunal
to decide these substantial issues touching the
merits of the dispute.
25. Based on the facts projected above, we come
back to the main issue, namely, whether direction
in the nature given, which are in the nature of
mandatory injunction amounting to specific
44
Com.A.A. 152/2025
performance or directing continuation of the
arrangement even when the agreement had been
terminated could be given or not. Once the Joint
Venture Agreement is terminated, prima facie we
feel that even in the main arbitration
proceedings, it would be difficult for M/s C&K to
seek the final relief of specific performance and
for restoration of the agreement. There is a huge
possibility that in such a situation, normally M/s
C&K would be entitled to damages even if it is
held that Joint Venture Agreement was illegally
terminated. After all, Joint Venture Agreement
was a contract between the parties. It was only in
the realm of contractual arrangement with no
statutory flavour and no element of public law.
While dealing with the contractual obligations
under the realm of contract in a private field
without any insignia of public element, it may be
somewhat difficult for M/s C&K to maintain the
relief of specific performance.
33. M/s C&K also cannot ride on its reputation
and expertise in the field. That may be so.
However, in case the IRCTC has decided to
terminate the arrangement and, as discussed
above, M/s C&K may prima facie only claim
damages, even in the event of its success in the
arbitration proceedings. The Court cannot restore
the terminated arrangement and direct that the
train would be managed and run by M/s C&K
under the supervision of a receiver.
33. In 2023 SCC Online Del 3082 between Roadway
Solutions India Infra Limited vs. National Highway
Authority of India, wherein Hon'ble Delhi High Court
45
Com.A.A. 152/2025
held in para 22,28,30,69,71,72,72,74 as thus:
22. Learned senior counsel appearing on behalf
of the petitioner submitted that in sheer violation
of the terms of the Contract, the respondent,
instead of acting in terms of the arbitral
mechanism envisaged under Clause 67 of the
COPA and Contract and without addressing the
grievance raised in the Mediation Notice dated
19th January, 2023, unilaterally and arbitrarily
issued the notice of intent to terminate dated
31st January, 2023 under Clause 63.1 of COPA
giving a notice of 14 days, upon the expiry of
which it was entitled to terminate the Contract.
28. Learned senior counsel appearing on behalf
of the petitioner submitted that upon a bare
perusal of the various correspondence, it is
evidence that the respondent acted in a high-
handed manner de hors the provisions of the
contract and the applicable law. It is submitted
that the petitioner is not in default of any of its
obligations under the Contract and has always
complied with the instructions of the respondent
and the team leader. The petitioner has
expended huge costs for the performance of the
contract and has always been ready and willing
to perform the contract.
30. Learned senior counsel appearing on behalf
of the petitioner submitted that the instant
Contract is at pre-termination stage and
currently not terminated, therefore, interim relief
by way of Section 9 of the Act may be granted.
69. It is also the case of the petitioner that the
46
Com.A.A. 152/2025
respondent had not issued the NITT in terms of
Clause 46.1 and that as such its issuance was
illegal. As per the petitioner, issuance of NITT
required the respondent to issue the notices
under Clause 46.1 and Clause 37.4 of the GCC
which were not complied with by the respondent.
71. Without going into the merits of the
aforesaid contentions, in my view, the best case
of the petitioner is that the NITT is wrongful and
not in terms of the Contract for which it can be
adequately compensated by way of damages. If
the petitioner is aggrieved by the letter of
intention of termination of the Contract and is
advised to challenge the validity thereof, the
petitioner can always invoke the arbitration
clause to claim damages, if any, suffered by the
petitioner. In my view, this Court under Section 9
of the Act cannot give direction to a party for not
terminating the contract or to continue with the
Contract. If the Contract is terminated, the
applicant/petitioner shall have rights as available
to it under law. It is the right of a party not to
continue with a Contract and the Court cannot
force a Contract on somebody under Section 9 of
the Act irrespective of it being terminated in
accordance with the terms of the Contract or not
which is for the Arbitral Tribunal to determine.
72. In so far as the rival contentions on merits of
the matter including reasons for delay in
progress of works and/or the party responsible
for the same are concerned, this Court is of the
view that it is only an Arbitral Tribunal which can
adjudicate upon the same after thorough
examination of the pleadings and the materials
placed on record and it is not for the Court to
47
Com.A.A. 152/2025
comment on Section 9 of the Act and/or make
any observations regarding the same. The short
question that comes up for consideration before
this court is "whether the said Contract is
terminable or not". The question as to whether
material breach/delay has been committed or
not or if there is any breach/delay at all is not to
be gone into for the reason that it is not the
question for determination in the petition under
Section 9 of the Act before the Court.
73. With respect to the Contract being
determinable or not, this Court took note of the
very eloquently put petitioner's submissions that
the Contract in question is not determinable and
that the judgments relied by the respondent are
related to the case where termination has
already taken place, whereas in the present case
it is only NITT that has been issued and
termination has yet not taken place. Having
examined the competing views, I am of the
opinion that the contention of petitioner that
present Contract is not determinable is
misconceived.
74. Even in the present case, NHAI could
terminate the Contract for default of petitioner,
therefore, contract is certainly determinable and
no interference as such is warranted in the facts
of the case.
34. In 2020 SCC Online Del 1708 between Royal
Orchid Associated Hotels Private Limited vs. Kesho
Lal Goyal, wherein Hon'ble Delhi High Court.
48
Com.A.A. 152/2025
35. In 2003 (67) DRJ 154 between Vidya Securities
Limited vs. Comfort Living Hotels Pvt. Ltd. wherein
Hon'ble High Court of Delhi held in para 2,3,6,7,8,9,10,13
15 as thus:
2. The petitioner and the respondent herein had
entered into the agreements dated 1.10.2001 and
26.11.2001 under which the respondent's
restaurant/bar called "red Snapper" at
respondent's "Sartaj Hotel" at Green Park, New
Delhi was handed over to the petitioner for its
management and administration for a total rental
of Rs. 2,25,000/- per month. The respondent
which owns the aforesaid Hotel was already
running the said restaurant/bar but vide the two
agreements mentioned above, the restaurant/bar
along with its furniture, fixtures and fittings,
kitchen equipments, manpower, airconditioners
etc. was entrusted to the petitioner for a period of
three years we.f. 1.10.2001.
3... The petitioner alleged that the respondent
had illegally ousted he petitioner from the
restaurant/bar and as such, disputes had arisen
between them which were to be referred to the
Arbitrator. In these premises, the aforesaid interim
reliefs were prayed under Section 9 of the Act.
6. On the other hand, learned counsel for the
respondent submits that a plan perusal of the
agreement reveals hat no relationship of landlord
and tenant had come into existence and no lease
was created by the respondent in favor of the
petitioner. It is stated that the agreement were
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Com.A.A. 152/2025
only for the administration and management of
the respondent's restaurant, which was already
functional, through which the petitioner was given
a license only for managing the same. it is
submitted that the exclusive possession and
control of the restaurant as well as bar premises
always remained with the respondent. He refers
to Clauses 5, 6, 7, 8 & 9 of the Agreement dated
1.10.2001 and corresponding Clauses in the
Agreement dated 26.11.2001 to submit that only
the management and administration of the
restaurant, room service and kitchen was given
tot he petitioner
7. There is a plethora of judgments underlining
the distinction between a lease and license. It has
been repeatedly held by the Courts that the words
used in the Agreements are not to be taken on
their face value for holding as to whether a
particular agreement creates a lease or a license.
The Court has to see the intention of the parties
and for ascertaining this intention, the terms and
conditions contained in the Agreement, the
surrounding circumstance sand the conduct of the
parties has to be considered. However, exclusive
possession of the premises in the hands of a party
is always crucial for ascertaining as to whether a
lease has been created or not. The possession
and control retained over the premises by a party
giving license to the other for the use of the
premises indicates that it is not a case of lease
and merely an Agreement of leave and license
only.
8. A perusal of the agreements, conduct of the
parties and the facts and circumstances brought
50
Com.A.A. 152/2025
on record clearly show that in the present case,
the respondent never intended to create a lease
in respect of the premises in question in favor of
the petitioner and only a license was granted to
him for the management and administration of
the respondent's restaurant "Red Snapper". The
actual and physical possession of the premises
always remained with the respondent and overall
control and supervision of the restaurant was with
the respondent... Therefore, the arrangement
between the parties was in regard to the
management and administration of the
respondent's restaurant by the petitioner and it
does not appear that the parties ever intended
that the premises should be handed over to the
petitioner and it should be allowed to deal with
those in whatever manner it wanted.
9. It is also to be noticed that Clause (xiii) on page
8 of the agreement dated 26.11.2001 provided
that in case of breach of any terms and conditions
of the management agreement the respondent
could cancel the agreement or impose any
penalty upon the petitioner if within 10 days of
the service of the notice remedial measures were
not taken by the petitioner. Such a condition could
never be a part of a lease agreement and could
be only in a leave and license agreement. This
Court, therefore, has no hesitation in holding that
there was no lease in respect of the premises in
question in favor of the petitioner and the
petitioner had not become a tenant in respect of
the premises in question. The agreement between
them created only a leave and license in favor of
the petitioner for the management and
administration of the respondent's restaurant
51
Com.A.A. 152/2025
"Red Shapper" and even this agreement was
terminable in terms of the clauses contained
therein if the petitioner was found in violation of
the terms thereof. The respondent always
remained in physical possession of the premises
in question and had full control not only over the
premises but upon the staff and stuff also as
catering was to not only the restaurant and the
bar but to the respondent's rooms also in the
Hotel. The plea of the petitioner that a tenancy
had been created in favor of the petitioner cannot
be upheld.
10... The question as to whether the contract
between the parties was validly determined or not
would be determined by the Arbitrator only to be
appointed in terms of the agreement between the
parties but this Court on prima facie basis, holds
that the contract stood determined and as such,
the petitioner is not entitled to interim relief as
prayed.
13. The plea of the petitioner, therefore, that by
invoking its powers under Section 9 of the Act this
Court should restrain the respondent from giving
possession of the premises to anyone else and
respondent should be restrained from entering
into any agreement or arrangement with any
other party in regard to the running of the
restaurant cannot be sustained firstly for the
reason that the contract between the parties was
terminable in nature and appears to have been
terminated and secondly the contract between
the parties is of such a nature which can not be
specifically enforced for the reason that the Court
would never be in a position to supervise and
52
Com.A.A. 152/2025
enforce the obedience of its orders. Moreover, the
petitioner can be adequately compensated in
terms of money in case it is held that the
agreement in its favor was not terminated or was
illegally determined. Clauses (a), (b), (c) and (d) of
Section 14(1) of Specific Relief Act stand in the
way of petitioner and disentitle him to interim
injunctions as prayed.
15. In view of the forgoing discussions, this Court
is of the considered view that the petitioner has
failed to make out a prima facie case for grant of
ad interim injunction as prayed. It is also held that
the balance of convenience is more in favor of the
respondent and the petitioner would not suffer
any irreparable loss/injury if the interim relief is
not issued in its favor in terms of its prayers. The
petitioner can always be compensated in terms of
money if the breach of contract between the
parties is established.
36. In 2012 (6) SCC 792 between Best Sellers Retail
(India) Private Limited vs. Aditya Birla Nuvo
Limited, wherein, Hon'ble Supreme Court held in para 14
and 17 as thus:
14. Yet, the settled principle of law is that even
where prima facie case is in favour of the plaintiff,
the Court will refuse temporary injunction if the
injury suffered by the plaintiff on account of
refusal of temporary injunction was not
irreparable. In Dalpat Kumar & Anr. v. Prahlad
Singh & Ors. [(1992) 1 SCC 719] this Court held:
53
Com.A.A. 152/2025
"Satisfaction that there is a prima facie
case by itself is not sufficient to grant
injunction. The Court further has to satisfy
that non-interference by the Court would
result in "irreparable injury" to the party
seeking relief and C that there is no other
remedy available to the party except one to
grant injunction and he needs protection
from the consequences of apprehended
injury or dispossession. Irreparable injury,
however, does not mean that there must be
no physical possibility of repairing the
injury, but means only that the injury must
be a material one, namely, one that cannot
be adequately compensated by way of
damages."
17. The High Court lost sight of the fact that if the
temporary injunction restraining Liberty Agencies
and its partners from allowing, leasing, sub-leasing
or encumbering the suit schedule property was not
granted, and the respondent no.1 ultimately
succeeded in the suit, it would be entitled to
damages claimed and proved before the court. In
other words, the respondent no.1 will not suffer
irreparable injury.
37. It is noted point that, in prima-facie it appears that,
there is an agreement existing between the Petitioner and
Respondent. However, the petitioner himself as stated in
para- 13 in his petition as thus:
As is apparent from the narration above, the
Respondent has greatly benefitted from the
reputation, brand value, expertise, hard work and
54
Com.A.A. 152/2025
efforts of the Petitioner. The Petitioner has
diligently and conscientiously performed all its
obligations under the Agreement and has
ensured that the Respondent has profited from it
along with the Petitioner. However, when things
stood thus, the Respondent started acting
contrary to the terms of the Agreement between
the parties.
38. As per the version petitioner himself stated about
the respondent has gain profit from the petitioner.
However, copy of the statement of profit has submitted by
the Respondent as not reveal about the profits from the
Petitioner. It is also noted point that, the Section 9 of
Arbitration and Conciliation Act this court is not declaring
about the Respondent is given profit from the petitioner.
But no prima-facie is reveal that there is a profit as per
records submitted by the Respondent.
39. The petitioner in para 28 of his petition as seeking a
relief to grant an injunction to restrain the Respondent
from unilaterally and unlawfully terminating the
agreement and attempting to dispossess the petitioner
from the hotel. The balance of convenience not lies in
favour of granting an injunction to the Petitioner as
prayed for. However, such prayer is not come forwarding
in the prayer of main petition as mentioned A to G.
55
Com.A.A. 152/2025
40. The Respondent being the true owner of the land
and if it cause any loss to the petitioner can be
recoverable. Hence, the irrecoverable loss will not caused
to the petitioner. Furthermore, the judgment relied by the
respondent in above it clearly reveals that in case of
prima-facie case it is in favour of the petitioner to grant of
injunction the court has to satisfy that non interference of
the court was resulting irrecoverable injury. Though if in
case this court has interference the respondent will put a
great loss and hardship. Moreover, the submission of the
petitioner that respondent is terminating the lease
agreement. However, in Section 9 of Arbitration and
Conciliation Act this court does not have any power to
restore his possession and to declare agreement is valid.
Therefore, the petitioner is having remedy before the sole
arbitrator. Hence, prima-facie is in favour of the petitioner.
However the balance of convenience in favour of the
respondent. If in case the injunction is granted in favour of
the petitioner, the respondent will put great loss and
hardship. By relying the above Judgment of petitioner and
respondent I am of the considered view that, the
petitioner will not entitle for any relief as claimed in the
main petition. In view of the observation I am of the
opinion I.A.No.2 to 6 filed under Section 39 Rule 1 and 2 of
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Com.A.A. 152/2025
CPC to restrain the Respondent is not entitle by the
petitioner. Accordingly, I.A.No.2 to 6 are deserves to be
dismissed.
41. The petitioner has not made out the balance of
convenience in his favour and also if injunction is granted
the respondent will put great loss and hardship. If in case
any loss caused to the Petitioner if entitle for the
respondent by approaching the arbitration tribunal.
Hence, the petitioner is not entitled for injunction against
the Respondent. Accordingly, I answer Point No.1 in
Negative.
42. Point No.2 : -Therefore, I proceed to pass the
following Order.
ORDER
The Petition filed by the Petitioner under Section 9 of Arbitration and Conciliation Act, 1996 is hereby Dismissed.
57Com.A.A. 152/2025 Consequently, the Petitioner has filed I.A. No.2 to 6 under Order XXXIX Rule 1 and 2 of CPC read with Section 9 of Arbitration and Conciliation Act, 1996 is hereby dismissed.
(Dictated to the Stenographer, typed by her directly on computer, verified and then pronounced by me in open Court on this the 29th day of November, 2025).
(VIDYADHAR SHIRAHATTI), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.