Judgment:
ORDER
SHEET APO NO.323 OF 201.AP NO.12 OF 201.IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE BHAVNEET SINGH BINDRA Versus SREI EQUIPMENT FINANCE LTD.& ANR.
BEFORE: The Hon'ble JUSTICE ASHIM KUMAR BANERJEE The Hon'ble JUSTICE SHUKLA KABIR (SINHA) Date :
3. d October, 2012.
Mrs.Rakhi Shroff, Adv., for the appellant.
Mr.Ratnanko Banerji, Adv., Mr.Swatarup Banerjee, Adv., for the respondents.
The Court : The parties entered into an agreement by which the assets belonging to the respondents were leased out to the appellant against monthly lease rental to be paid in terms of the agreement.
The appellant defaulted giving rise to a dispute that was referred to the named Arbitrator.
The respondents approached the learned single Judge by filing an application under Section 9 of the Arbitration and Conciliation Act, 1996.
By an order dated June 25, 2007 His Lordship appointed Receiver to make an inventory of the excavator that was leased out to the appellant.
Repeated orders were passed from time to time.
Ultimately the Section 9 application stood disposed of by the learned single Judge by an order dated December 13, 2007 appearing at pages 56-58 of the paper book.
The appellant preferred an appeal.
The Division Bench presided over by one of us (Ashim Kumar Banerjee, J.) passed the following order : “Upon hearing the rival contentions of the parties, we feel interest of justice would sub-serve if we direct the appellant to make payment of Rs.3.5 lakh per month commencing from April 2008 till December 2008 or till the disposal for the arbitration proceeding before the Arbitrator, whichever is earlier.
The other part of the order of the learned single Judge is not interfered with.
We make it clear that the adjustment of the sums already paid by the appellant and to be paid in terms of this order would be made at the time of final award being published by the Arbitrator.
The Arbitrator must take note of these payments and decide as to how the adjustment would be made.
The appeal is disposed of accordingly without any order as to costs.”
The parties went back to the Arbitrator.
The appellant, however, declined to pay his remuneration.
The Arbitrator did not hear them and made it clear to them that unless arrear remuneration would be paid, he would not hear the appellant.
The appellant also declined to pay the future remuneration as we find from page 38 of the paper book.
The Arbitrator concluded the hearing, however, did not publish his award.
The respondents approached the Receiver to take possession in view of the default being committed.
The Receiver expressed his inability to proceed in absence of any court’s order that gave rise to an application under Section 9.
The learned single Judge by judgment and order dated July 26, 2012 directed further payments to be made.
His Lordship asked the Receiver to take possession of the excavator and remove the same to a place to be provided by the respondents.
His Lordship’s order appearing at pages 168170 was called in question before us in this appeal.
At the initial stage we declined to stay the operation of the order, as the appellant did not agree to pay any further amount.
The appeal has not come up for hearing.
Mrs.Rakhi Shroff, learned Counsel appearing for the appellant contends, the application under Section 9 was not maintainable as the earlier order passed by the learned single Judge stood merged in the order of the court of appeal that did not provide for any future payment.
In any event in case the respondents would require any clarification and/or modification and/or further direction, they would have to approach the court of appeal and not the learned single Judge.
Hence, the application under Section 9 made for the second time was not maintainable.
She supports her contention by citing the precedent in the case of M/s.Gojer Bros.
(Pvt.) LTD.versus Shri Ratan Lal Singh, reported in (1974) 2 SCC 453.
Paragraph 11 being relevant herein is quoted below :“11.
The juristic justification of the doctrine of merger may be sought in the principle that there cannot be, at one and the same time, more than one operative order governing the same subject-matter.
Therefore the judgment of an inferior court, if subjected to an examination by the superior court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior court.
In other words, the judgment of the inferior court loses its identity by its merger with the judgment of the superior court.”
Mrs.Shroff further contends, the application under Section 9 could only be made by a party who was desirous of referring the dispute to arbitration.
Hence, before making the said application, the respondents should have taken all possible steps to have the arbitration heard and concluded.
To that extent, the respondents should have cooperated with the appellant so that the Arbitrator could hear both of them in terms of the direction passed by this Court earlier.
Having not done so, the application was not maintainable.
He refers to the decisions of the Apex Court in the cases of Firm Ashok Traders & Anr.
versus Gurumukh Das Saluja & Ors., reported in (2004) 3 SCC 15.and Sundaram Finance LTD.versus NEPC India LTD.reported in (1999) 2 SCC 479.
Per contra, Mr.Ratnanko Banerji, learned Counsel appearing for the respondents would contend, the appellant created a situation that caused hindrance in resolution of the controveRs.at an early stage.
The appellant would not make payment of any instalment although they are using the equipment.
The appellant would not pay the Arbitrator’s remuneration even then they would insist upon further hearing.
The learned single Judge rightly declined to accede to their request that would deserve no interference by this Court.
We have considered the rival contentions.
The scheme of the Act of 1996, particularly Section 9, would provide power to the Court to give interim protection to the parties to arbitration.
Such interim protection is nothing but an interim arrangement made during the pendency of the arbitration.
The power is also extended in a case where arbitration is yet to commence.
Since no finality is achieved at the Court while disposing of an application under Section 9 extending interim protection to any of the parties to arbitration, the Section 9 application would always be maintainable in a changed circumstance.
Hence, the plea taken by Mrs.Shroff on that score is rejected.
Mrs.Shroff also contends, we should appoint an independent Arbitrator to go into the controversy.
We find such an attempt made by the learned single Judge failed in view of indifferent approach of the appellant.
Even at the admission stage of the appeal, the appellant did not show their bona fide.
Even today Mrs.Shroff is not prepared to make any commitment as to future payments.
We do not find any scope of interference.
The appeal fails and is hereby dismissed.
There would be no order as to costs.
Urgent certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(ASHIM KUMAR BANERJEE, J.) (SHUKLA KABIR (SINHA).J.) sd/ AR[CR].