Himachal Pradesh High Court
M/S Garg Sons Estate Promoters Pvt. Ltd vs State Of Himachal Pradesh And Another on 13 December, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 13th DAY OF DECEMBER, 2022
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
ARBITRATION CASE NO.86 of 2022
M/s Garg Sons Estate Promoters Pvt. Ltd.
.....PETITIONER
Versus
State of Himachal Pradesh and another
....RESPONDENTS
For the Petitioner
For the Respondents
r :
:
Mr. Suneet Goel, Advocate.
Ms Seema Sharma,
Advocate General.
Whether approved for reporting?
Deputy
ORDER
Learned counsel for the petitioner submits that now Arbitrator stands appointed to adjudicate the dispute between the parties and the Arbitrator has entered upon Reference and has fixed date for presence of parties before him on 26.12.2022.
2. In view of aforesaid development, learned counsel for the petitioner has submitted that the petitioner has a right to seek interim protection by invoking Section 17 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "Arbitration Act"), during pendency of arbitral proceedings before the Arbitrator, and the petitioner intends to avail the said opportunity. He has further submitted that permitting ::: Downloaded on - 14/12/2022 20:32:19 :::CIS ARB.C No.86 of 2022 ...2...
encashment of Bank Guarantee by the respondent, in present case, shall cause irretrievable injustice to the petitioner.
3. Disputing the claim of the petitioner, with respect .
to irretrievable injustice alleged to be caused due to encashment of Bank Guarantee, learned Deputy Advocate General has opposed grant of interim injunction by referring pronouncement of the Supreme Court in BSES Ltd. (Now Reliance Energy Ltd.) v. Fenner India Ltd. And another, (2006) 2 SCC 728.
4. As the Arbitrator has already entered upon the Reference and petitioner has a right to avail recourse of Section 17 of the Arbitration Act, as permissible under law, I am of the opinion that issue as to whether irretrievable injustice, on encashing the Bank Guarantee, will be caused to the petitioner or not, and whether present case falls in the exceptions of the Rule reiterated and propounded in aforesaid pronouncement of the Supreme Court, is to be adjudicated by the Arbitrator.
5. For adjudicating the claim, as to whether irretrievable injury/injustice has been caused or not, requires adjudication of the matter on merit by scrutinizing and interpretation of clauses of Arbitration Agreement as well as submission of parties. As the Arbitrator has already entered upon the Reference of arbitration and he shall adjudicate the rival claims of parties, therefore, I do not consider it ::: Downloaded on - 14/12/2022 20:32:19 :::CIS ARB.C No.86 of 2022 ...3...
appropriate to undertake the exercise of adjudicating the matter on this issue as Section 17 of the Arbitration Act provides remedy as well as opportunity to the parties for .
adjudication of such claim.
6. Therefore, present petition is disposed of with liberty to the petitioner to approach the Arbitrator for interim relief under Section 17 of the Arbitration Act, by taking appropriate steps well before the date fixed by the Arbitrator for presence of parties and, in case such application is preferred by the petitioner, interim protection granted to him, in present petition, shall continue till 26.12.2022. Thereafter, it shall be subject to further order to be passed by the Arbitrator in the application, if any preferred by the petitioner, and in case no such application is filed, interim order, passed in present petition shall stand vacated.
7. Parties are permitted to produce copy of order downloaded from the High Court and the concerned authority/ Arbitrator shall not insist for certified copy of the order. However, if required, passing of the order can be verified from the High Court website or otherwise.
Petition stands disposed of, in aforesaid terms, so also pending application, if any.
( Vivek Singh Thakur )
December 13, 2022(sd) Judge.
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