High Court · 2012

In assailment in the present appeal under section 37(1)(a) of the Arbitration an d Conciliation Act, 1996 (for short hereinafter referred to as the Act) are ord ers dated 07.01.2012 passed by the Addl. District Judge, Kamrup, Guwahati in Mis c. (Arb.) Case No.446/2011 and Misc. (J) Case No.557/2011 between the same parti es. We have heard Mr. T.H. Hazarika, learned counsel for the appellants/applicants a nd Mr. S. Shyam, learned counsel for the respondent/opposite party. The thumbnail facts essential for the present adjudication are that the appellan t-Company and the father of the respondent, Dandhidhar Saikia (since deceased) h ad entered into an agreement on 25.04.2005, wherein subject to the terms and con ditions incorporated therein, it (appellant-Company) was to construct with its o wn finance a multistoried building comprised of flats, apartments etc. and in li eu thereof Dandhidhar Saikia (since deceased) was to be allotted an agreed perc entage of total super built-up area thereof. The plot of land on which the cons tructions were to be made as well as percentage of the total super built-up area agreed to be allotted to Dandhidhar Saikia (since deceased) were duly described in the schedules to the agreement, Clause 20 whereof stipulated as hereunder: That any dispute arising out of this deed shall always be mutual (cid:28)Clause 20: ly resolved in a spirit of good faith, failing which it will be resolved by arbi tration. It is specifically agreed that notwithstanding any dispute neither part y shall be entitled to stop construction. (cid:28) This agreement was followed by another deed dated 13.04.2006 between the parties , in which Dandhidhar Saikia (since deceased) was represented by his constituted attorney, the respondent herein. In the process of execution of the project nam ed (cid:28)Gitanjali Heights (cid:29) differences arose, the details whereof are inessential fo r the present purpose. The respondent, situated thus contemplated to institute a n arbitration proceedings in terms of Clause 20 of the agreement dated 25.04.200 5 and in the interim filed an application under section 9 of the Act before the learned Court below for restraining the appellants, their men, agents etc from d isposing or alienating in any manner the apartments/flats in (cid:28)Gitanjali Heights (cid:29) . Amongst others, breach of the covenants in the agreement dated 24.05.2005 was imputed by the respondent. The application was registered as Misc. (Arb) Case N o.446/2011. The learned court below on a consideration of the pleaded facts and the document s on record by its order dated 01.10.2011 issued the following operative directi ons: (cid:28)Considering the urgency of the matter, I am of the opinion that interim protect ion is required to be given without issuing notice to the opposite party. Takin g in to account of all the above facts in its entirety, opposite party is hereby directed to maintain status quo as on today i.e. 01.10.2011 of the flats/apartm ents of Gitanjali Heights (cid:29) situated at Dag No.34, Patta No. Madgharia Grant No.1 , in village Madgharia Non Ke, under Beltola mouza till receipt of the notice to file objection. (cid:29) On the receipt of the notice, the appellants filed application for vacation and/ or modification/alteration of the order dated 01.01.2011 which was registered as Misc.(J) Case No.557/2011. The learned court below by the impugned orders disp osed of both the proceedings. The operative directions in the cases are extracte d hereinbelow: Misc. (Arb.) Case No.446/2011 (cid:28)So, the status quo order in respect of the alienation of the flats/apartments o nly in respect of the (cid:28)Gitanjali Heights (cid:29) situated at Dag No.34, Patta No. Madgh aria Grant No.1, in village Madgharia Non Ke under Beltola Mouza will remain in force till initiation of the Arbitration proceeding. Accordingly, the Misc(Arb.) Case No.446/11 is disposed of. (cid:29) Misc. (J) Case No.557/2011 (cid:28)However, the status quo in respect of the alienation of the flats/apartments in respect of the (cid:28)Gitanjali Heights (cid:29) situated at Dag No.34, Patta No. Madgharia G rant No.1 in village Madgharia Non ke under Beltola Mouza will remain in force. (cid:29) As would be evident from the texts of the above quotes, the learned court below while maintaining status quo in respect of the alienation of the flats/apartment s in (cid:28)Gitanjali Heights (cid:29) limited the continuance of the interim restraint till the initiation of the arbitration proceeding vide its order dated 07.01.2012 ren dered in Misc.(Arb.) Case No.446/2011, no timeframe therefor was indicated in th e order pertaining to Misc.(J) Case No.557/2011. Mr. Hazarika while apprising this Court that the parties meanwhile have concurre d upon the appointment of an Arbitrator and have agreed to refer the subsisting dispute to arbitration has urged that the interim restraint be withdrawn in the interest of the project. According to him, in terms of Section 21 of the Act, t he arbitral proceedings contemplated by Clause 20 of the agreement dated 25.04.2 005 have commenced and thus the arbitrator being in seisin of the dispute , the impugned orders ought to be vacated. Mr. Shyam, per contra has insisted that no interference with the impugned ord ers at this stage is either warranted or expedient, more particularly as the arb itrator has not yet entered upon the reference to take cognizance of the rival c ontentions on merit. As no formal notice has yet been issued by the arbitrator calling upon the parties to submit their statements of claim, vacation and/or mo dification of the interim restraint would lead to avoidable complications and mu ltiplicity of litigation, he urged. Upon hearing the learned counsel for the parties and on a consideration of the p leaded facts and the documents on record to the extent necessary for the present exercise, we dispose of the appeal and the misce case in hand with the followin g directions: (1) the interim restraint ordered by the learned court below on the alienati on of the flats/apartments in respect of (cid:28)Gitanjali Heights (cid:29) would continue to b e in force till a decision is taken by the arbitrator in this regard; for this, the respondent would file, an appropriate application before (2) the learned arbitrator, seeking interim relief either identical to the one as pr ayed for before the learned court below or otherwise as necessitated by the atte ndant facts and circumstances, within 2(two) weeks from the date on which the ar bitrator would enter upon the reference made by the parties; the arbitrator would in such an eventuality, grant due and reasonable op (3) portunity to the appellants to contest such request/prayer on merits and therea fter pass appropriate orders upon hearing the parties; (4) it would however be open to the learned Arbitrator at all times, if warr anted by the prevalent circumstances , to pass any appropriate order, in modific ation of the interim restraint as in (1) even before the final adjudication of t he request/prayer of the respondent as contemplated in (2). It is made clear that in continuing with the interim restraint, as above, this C ourt has not touched upon the merit of the rival claims of the parties and the l earned arbitrator would decide all issues before him without in any way being in fluenced by this order. No costs.