High Court · 2025

Mr. counsel. Mr. Sagar Kot hari, learned counsel. learned JUD GM EN T : ( p e r M r . G. N a r e n d a r , C.J.) Heard learned counsel t he appellant and learned counsel for t he respondent .

2. The quest ion, which arises for considerat ion in t his Appeal, is: - “ Whet her t he reason assigned by t he Com m ercial Court for rej ect ing t he Applicat ion is sust ainable in t he light of t he provisions of sub- sect ion ( 1) of Sect ion 9 of t he Arbit rat ion and Conciliat ion Act , 1996?”

3. The short point t hat is canvassed is t hat t he order on t he Applicat ion preferred by t he appellant invoking t he provisions of Sect ion 9 of t he Arbit rat ion and Conciliat ion Act , 1996 ( for short “ t he Act ” ) is per se cont rary t o t he provisions of sub- sect ion ( 1) of Sect ion 9 of t he Act it self. 1

4. Learned counsel for t he respondent would invit e t he at t ent ion of t he Court t o t he findings of t he Com m ercial Court in Paragraph Nos. 16, 17, 18, 19 and 20 r ecorded in t he im pugned j udgm ent .

5. On perusal of t he sam e, it is seen t hat t he Com m ercial Court has been carried away by t he condit ion of cont ract , which m andat es t hat t he part ies shall resort t o m ediat ion prior t o inst it ut ing arbit ral proceedings. I n t hat view, t he Trial Court has deem ed it fit t o rej ect t he Applicat ion.

6. A bare reading of t he provisions of sub- sect ion ( 1) of Sect ion 9 of t he Act clearly belies t he underst anding drawn by t he Com m ercial Court . Sub- sect ion ( 1) enables a part y t o invoke t he provisions of Sect ion 9 on specific ground enum erat ed in Clauses i, ii ( a) t o ( e) only. That being t he case, t he failure t o invoke t he m ediat ion clause would not in any m anner defeat t he purpose and obj ect ive of t he provisions of Sect ion 9 of t he Act . The purpose and obj ect ive of Sect ion 9 is discernible in Clauses i, ii ( a) t o ( e) . The failure t o init iat e or ask for m ediat ion cannot , in our considered opinion, be a ground t o rej ect an Applicat ion invoking t he provisions of Sect ion 9 of t he Act . There m ay be innum erable circum st ances, where delay in considering 2 t he int erim relief could render t he very proceeding it self infruct uous. I n fact , counsel for t he respondent would set out a sim ilar defense. He would subm it t hat t he Applicat ion was direct ed against t he respondent s t o rest rain t hem from invoking t he bank guarant ee and encashing t he sam e; t hat during t he pendency, t he bank guarant ees have been invoked and in t hat view, t he Appeal and t he proceedings are rendered infruct uous. This is exact ly t he scenario and circum st ance, which cannot be perm it t ed. I f such a procedure is adopt ed, it would only facilit at e t he answering part y t o present a fait accom pli t o Court and would, t hus, render t he provisions of Sect ion 9 nugat ory. I t is no m ore int egra and is set t led t hat t he Court cannot int erpret a provision in a m anner, which would render any provision ineffect ive.

7. I n t hat view of t he m at t er, w e are of t he considered opinion t he reasoning set out for rej ect ing t he Applicat ion has no legs t o st and and warrant s int erference at t he hands of t his Court .

8. Accordingly, t he Appeal is allowed in part and t he m at t er rem it t ed back t o t he concerned Court considerat ion on m erit s.

9. There shall be no order as t o cost s. 3

10. Pending applicat ion, if any, also st ands disposed of accordingly. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ G. N A REN DA R, C.J. _ _ _ _ _ _ _ _ _ _ _ _ _ A LOK M A H RA , J. Dt : 9 t h June, 2025 Rat hour PRAVINDR A SINGH RATHOUR DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=23699ccc2fd40ad81b6fd13323779d9e3a eb1097d17dbb53d481cabd25946eed, postalCode=263001, st=UTTARAKHAND, serialNumber=1F65499E931DF71CDAF92A40CC6 179B8E010331BA695239171F906FD5C45C4E8, cn=PRAVINDRA SINGH RATHOUR 4