ORDER
SHEET GA22372014 APOT3632014 AP12532013 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE L & T FINANCE LTD Versus MD IRFAN AHMED KHAN & ANR.
BEFORE: The Hon'ble MR.JUSTICE BANERJEE, ACTING CHIEF JUSTICE The Hon'ble JUSTICE ARIJIT BANERJEE Date : 25th July, 2014.
Mr.Paritosh Sinha, Advocate Ms.S.Saha, Advocate for the appellant.
The Court :- The appeal is barred by 21 days.
Causes shown being sufficient, delay is condoned.
The appeal is taken on record.
This appeal would arise out of an order passed on May 7, 2014.
Despite service, the respondent no.1 has received notice as we find from the affidavit of service.
The appellant does not pray for any relief in this appeal against him.
Hence, the appeal is dismissed as against the respondent no.2.
The appellant extended financial support to the respondent no.1 that would be repayable by instalments as per the agreement.
The respondents failed to repay resulting in a dispute that was referred to arbitration.
During pendency of the arbitration, the appellant approached the learned single Judge for interim protection.
His Lordship appointed Receiver who took possession of the assets after taking appropriate police help.
The arbitral tribunal published its award on January 10, 2014.
The learned Judge asked the Receiver to retain possession till an order is made by the Executing Court before whom the award would be executed.
The learned Judge observed, in case execution proceeding is launched within the State, it would be hardship to the respondents.
His Lordship was also of the view, the appellant should have disclosed the factum of award on the day when the Receiver was asked to take possession with the police help.
Considering such aspect, His Lordship reserved cost of Rs.85,000/- in the event the appellant would execute the award within the State.
The appellant has come up for two reasons.
The fiRs.objection is, the learned Judge observed, the award could only be executed at a place beyond the State as the respondents are residing outside the State and the assets are lying outside the State.
The second objection would relate to the cost reserved for the purpose in case execution proceeding is lodged before this Court.
Mr.Sinha appearing for the appellant would submit, it would be for the Executing Court to decide its jurisdiction.
The learned Judge, while taking Section 9 proceeding, should not have observed so.
We have considered the submissions of Mr.Sinha.
The Arbitration Court is empowered to give interim protection to any party to the arbitration agreement before or after the arbitration proceeding.
Whether the award would be executed within the State or outside, would be at the choice of the appellant.
However, the Executing Court would be the right forum to decide whether such approach was proper or not.
Hence, the observations made by His Lordship would be prejudging the issue and, as such, the fifth paragraph of the order starting with the words, “since it appears” .
.
.
and ending with the words “so that the Receiver may be relieved”, be set aside.
With regard to the cost part, we leave it to the Executing Court to decide whether cost would be awarded to any party and, if so, what would be the quantum that would take care of the second objection.
The appeal is disposed of, after treating the same as on day’s list, without any order as to costs.
Consequently, the application is also disposed of.
(BANERJEE, ACJ.) (ARIJIT BANERJEE, J.) sd/