Indian Kanoon - Search engine for Indian Law

(13) It is, therefore, clear that in so far as an arbitration court is concerned, power to grant an injunction is conferred by Section 41(b) read with the Second Schedule Entry No.4. That power has to be exercised only for the purpose of and in relation to arbitration proceedings. An arbitration court cannot exercise power to grant an injunction de hors clause (b) of Section 41. Inasmuch as power to grant an injunction by the arbitration court is not exercised by reference to Order 39 of Cpc, the question of considering maintainability of appeal by reference to provisions of Civil Procedure Code does not arise.

(14) The arbitration court grants or refuses an injunction under Section 41(b) read with The Second Schedule - Entry No.4. Such an order being not one of the six orders listed as appealable orders under Section 39(1) of the Act no appeal lies therefrom. If the order be one passed by a court subordinate to the High Court it would be revisable. If the order be passed by a learned single Judge of the High Court sitting on the original side, the order would not be appealable; the revision being out of question.

(23) The contents of Ia 7955/95 filed by the appellant seeking the injunction and contents of Ia 9753/95 filed by the respondent seeking vacating of the injunction go to show that the order of injunction forming subject matter of this appeal was for the purpose of and in relation to the arbitration proceedings. To be so the order of injunction must be relatable to the subject matter of arbitration proceedings, as is deductible from para 19 of the Supreme Court decision in M/s Hkk Ansari & Go's case (supra). The power to grant such an injunction was wielded by the learned single Judge by exercising jurisdiction under the Arbitration Act only by reference to Section 41(b) read with the Second Schedule Entry No.4. The order of injunction, was an order under the Arbitration Act and so would be the order vacating the same and impugned herein. An appeal there against is clearly prohibited and certainly not permitted by Section 39 of the Arbitration Act. The appeal is, therefore, incompetent and deserves to be dismissed as not maintainable.

(24) Faced with this situation Mr P.N. Lekhi, the learned senior counsel for the appellant advanced an ingenious argument. He submitted that if an appeal against the impugned order vacating the interim injunction be not maintainable even then this Court may while dealing with FAO(OS) 116/96 independently exercise the power to grant an injunction; such a power in the appellate court being vested by Section 107 of CPC. The argument must fail. Firstly, there is no application for the grant of ad interim injunction moved in Fao (OS) 116/96. Secondly, what cannot be done directly, cannot be done indirectly. Thirdly, the order vacating the "injunction has achieved a finality in view of the order of the learned single Judge being not appealable; the appellant would not have a prima facie case for the grant of injunction.