Order 6

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: OMP (I) (COMM.) No. 132/22
M/S GULAB FARMS PRIVATE LIMITED Vs. M/S NIBBOS
RETAIL SERVICE PRIVATE LIMITED
07.12.2022
Present: Sh. Aditya Srinivasan, Ld. Counsel for Petitioner.
Heard. Perused.
Lessor petitioner has filed this petition under Section
9 of The Arbitration and Conciliation Act, 1996 (in short The
Act) alleging lessee respondent has not paid payable lease rental,
interest on delayed payment, outstanding dues towards electricity
charges for leased premises under registered lease agreement
having arbitration clause intending to invoke arbitration clause
claiming respondent lessee having defaulted since March, 2021.
Put forth true copy of the lease agreement does not depict
particulars of its registration i.e., date, place, etc.
Petition contains four prayers. First prayer is to
direct the respondent lessee to deposit claimed payable sum with
petitioner; though pending adjudication of dispute by arbitration.
Second prayer is direction to respondent to ensure leased
premises to be maintained in good condition till adjudication by
arbitration. Third prayer is for direction to respondent lessee for
ensuring ingress and egress of petitioner with respect to leased
premises and non obstruction. Fourth residuary prayer is for
other orders/directions as deemed fit by the Court.
Ld. Counsel for petitioner in the course of arguments
submitted that though the aforesaid prayers in the petition of
petitioner are not happily worded for interim measures; yet this
Court in terms of fourth residuary prayer can pass any other
orders or directions as it may deem fit in the interest of equity,
fairness and good conscience, which is essentially a restatement
Contd:-
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RETAIL SERVICE PRIVATE LIMITED
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of Section 9 (1) (ii) (e) of the Act. Also was argued by Ld.
Counsel for petitioner that even otherwise this Court may read
first and the fourth prayer together and pass an interim measure
of protection that would secure the ends of justice and preserve
the sanctity of the arbitral process. Ld. Counsel for petitioner
relied upon the case of 'Tata Capital Financial Services Ltd. vs.
Unity Infraprojects Ltd. & Ors., 2015 SCC OnLine Bom 3597'.
Also was argued by Ld. Counsel for petitioner that first prayer in
the petition represents only a portion of total amounts owed by
the respondent to the petitioner and if this Court were to
ultimately grant first prayer in terms of which it has been sought,
then such relief would at most constitute an 'interim payment'.
Even later to filing of the petition further damages have accrued
as per Clause 10.3 of the Lease Deed. Ld. Counsel for petitioner
also relied upon the case of 'Essar House Pvt. Ltd. vs. Arcelor
Mittal Nippon Steel India Ltd. 2022 SCC OnLine SC 1219' and
submitted that a Court exercising power under Section 9 of The
Arbitration and Conciliation Act, 1996 should not withhold relief
on the mere technicality of absence of averments.
Section 9 of the Act reads as follows:-
“9. Interim measures, etc. by Court.—(1) A party may,
before or during arbitral proceedings or at any time after the
making of the arbitral award but before it is enforced in accordance
with section 36, apply to a court—
(i) for the appointment of a guardian for a minor or a
person of unsound mind for the purposes of arbitral
proceedings; or
(ii) for an interim measure of protection in respect of any
of the following matters, namely:—
Contd:-
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RETAIL SERVICE PRIVATE LIMITED
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(a) the preservation, interim custody or sale of any
goods which are the subject-matter of the
arbitration agreement;
(b) securing the amount in dispute in the
arbitration;
(c) the detention, preservation or inspection of
any property or thing which is the subject-matter of the
dispute in arbitration, or as to which any question may
arise therein and authorising for any of the aforesaid
purposes any person to enter upon any land or building
in the possession of any party, or authorising any
samples to be taken or any observation to be made, or
experiment to be tried, which may be necessary or
expedient for the purpose of obtaining full information
or evidence;
(d) interim injunction or the appointment of a
receiver;
(e) such other interim measure of protection as
may appear to the court to be just and convenient,
and the Court shall have the same power for
making orders as it has for the purpose of, and in
relation to, any proceedings before it.
(2) Where, before the commencement of the arbitral
proceedings, a Court passes an order for any interim measure of
protection under sub-section (1), the arbitral proceedings shall be
commenced within a period of ninety days from the date of such
order or within such further time as the Court may determine.
(3) Once the arbitral tribunal has been constituted, the
Court shall not entertain an application under sub-section (1),
unless the Court finds that circumstances exist which may not
render the remedy provided under section 17 efficacious.”
In case of 'Tata Capital Financial Services Ltd.'
(supra), the petitioner therein had sought a deposit order and in
default of such deposit an order for attachment before judgment
and in the alternative, an interim injunction restraining the
respondent from selling their movable and immovable assets or
even dealing with them as part of the CDR Scheme. In the case
in hand the fact are not akin to the facts of the case in relied upon
Contd:-
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precedent 'Tata Capital Financial Services Ltd' (supra) and the
first and foremost prayer in the petition is seeking direction to
respondent lessee to deposit claimed payable sum with petitioner
and not in the Court as a security, pending adjudication of
dispute by arbitration.
Section 9 of The Act, 1996 embodies the interim
measures of protection which can be sought by a party to
arbitration agreement from Court of competent jurisdiction.
Under the garb of any interim measures, a party to arbitration
agreement cannot seek ad-interim ex-parte or otherwise any
relief for the adjudication of the dispute/claim raised finally from
the Court; the domain of which vests with Ld. Sole Arbitrator to
adjudicate in terms of agreed arbitration clause/agreement.
Pleadings in the petition are also bereft of any foundation laid
through allegations against lessee respondent for not maintaining
in good condition the leased premises or obstructing ingress and
egress of lessor petitioner from/in leased premises.
In this fact of the matter, there exists no prima facie
case in favour of applicant/petitioner for any ex parte ad interim
order for prayed for any of the above said reliefs by
applicant/petitioner.
In view of foregoing discussions, finding it
expedient in the interest of justice, issue notice of the
application/petition with complete paper book of
applicant/petitioner to respondent on filing of PF/speed post/on
e-mail/on whatsapp, on taking steps within two days by
Contd:-
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RETAIL SERVICE PRIVATE LIMITED
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applicant/petitioner, returnable for 12.01.2023.
Nothing herein above said shall constitute any
impression on merits or demerits of the case of the parties or any
impression of final opinion on the issues involved and shall have
no bearing on the merits of this case.
This order be uploaded on the website of the Delhi
District Courts.
GURVINDER PAL SINGH
District Judge (Commercial Court)-02
Patiala House Court, New Delhi.
07.12.2022(vkp)
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