Arbitration Act
Shyam Ji Srivastava
(Querist) 09 April 2009
This query is : Resolved
Dear Members,
Can we get order for attachment under section 9 of the Arbitration Act.? Early reply is highly appreciated.
SHYAM JI SRIVASTAVA
Advocate
Kanpur U.P.
Prakash Yedhula
(Expert) 09 April 2009
See the following judgment
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT: SECTION 9 OF THE ARBITRATION AND CONCILIATION ACT
FAO(OS) No.206/2004
Date of decision : 11 October, 2004
Goel Associates ........ Appellant
Through : Mr. Rakesh Munjal, Sr.Advocate
with Mr. D.R. Bhatia and
Ms. Archana Gupta, Advocates.
Versus
JivanBima Rashtriya Avas Samati Ltd. .....Respondent
Through : Nemo.
CORAM :-
HON'BLE MR.JUSTICE VIJENDER JAIN
HON'BLE MR.JUSTICE ANIL KUMAR
Vijender Jain, J.(Oral)
1. Aggrieved by the order passed by learned Single Judge this appeal has been preferred by the appellant. The appellant is an architect engaged by the respondents society. Pursuant to some dispute between the parties, which is subject matter of arbitration, an application under Section 9 of the Arbitration and Conciliation Act was filed for interim orders for attachment. Earlier an interim order attaching the property of society was passed which was vacated after hearing the parties by the impugned order.
2. Mr. Munjal, learned counsel for the appellant has relied upon a judgment of the learned Single Judge titled as Rite Approach Group Ltd. Vs. M/S Rosoboronextport 111 (2004) DLT 816 and another judgment of learned Single Judge of the Bombay High Court in Delta Construction Systems Ltd., Hyderabad vs. Narmada Cement Company Ltd., Mumbai 2002 (2) Arb. LR 47 (Bombay) and on the basis of above said authorities, it was contended that the power to grant interim relief cannot be controlled or restricted by invoking the provisions of Order 38 Rule 5 of the Code of Civil Procedure. To our mind, there cannot be any dispute to the proposition of law as enunciated by the learned Single Judge of Bombay High Court and this Court. We have carefully analysed the judgment of the learned Single Judge which is impugned before us. What has been stated in the judgment is that in the given circumstances, the relief of attachment cannot be granted. No doubt that the provisions like Order 38 Rule 5 Code of Civil Procedure are not contained in the Arbitration and Conciliation Act but its principles are to be applicable as such. However, one cannot loose the sight that the provisions of Code of Civil Procedure would be the guiding principles as has been held by Supreme Court in ITI Ltd. Vs. Siemens Public Communications Network Ltd., 2002 (5) SCC 510. It was held that for want of specific exclusion of Code of Civil Procedure in the Act of 1996, if cannot be inferred that Code was not applicable but that would mean that the provisions of Code have to be read into as it is when the Court exercises its powers as prescribed in the Act of 1996. The procedural aspect provided in the Code about which the Act of 1996 is silent, needless to say, when the Court exercises its substantive power under the Act of 1996 shall be applicable but the guiding factor for exercise of power by the Court under Section 9 (ii) (b) has to be whether such order deserves to be passed for justice to the cause. The learned Single Judge has relied upon the provisions of Order 38 Rule 5 Code of Civil Procedure to exercise his discretion for the purposes of exercising power under Section 9 (ii) (b) as to whether that was a fit case for grant of an Order of attachment or not. Therefore, it can't be said that the impugned order suffers from infirmity merely because the learned Single Judge has stated in one sentence that the provisions of Order 38 of the Code of Civil Procedure must be kept in view while disposing of such application.
3. We do not find any
Srinivas.B.S.S.T
(Expert) 10 April 2009
Under Section 9 ii (b)and Section 9 ii (c) of Arbitration and conciliation Act provides for order of attachment
Shyam Ji Srivastava
(Querist) 10 April 2009
Dear Mr. Y Prakash,
Thanks in a lot for quick reply.
Thanks and Good evening
Shyam JiSrivastava
Advocate
Civil Court Kanpur
Contact \No. 09839028040
