Amitava Lala, J.
1. The appeal is heard by the Court on the informal papers since only the question of law involved and the parties have no objection for such hearing.
2. An injunction order is passed by the learned Judge in an application under Order XXXIX, Rule I of the Code of Civil Procedure arising out of Suit No. 1068 of 2006, Indian Oil Corporation Ltd. v. Speed Point and Anr. The suit has been filed praying inter alia as follows:
(a) To pass a decree for permanent injunction against the defendants, their agents, servants and persons claiming under them be restrained from dismantling the dispensing unit, underground tank and fittings and changing the nature of the site at M/s. Speed Point, Plot No. 'A', Sigra, Mohalla--Lalapura, Ward-Chetganj, Shastri Nagar, Varanasi having area of 786.12 sq. mts. otherwise in due course of law.
(b) To direct the defendants to continue with the business and if they do not want to continue business from the said premises then the plaintiff may be allowed to run the business in the said premises with any other person interested in doing the business.
(c) That, the cost of the suit be awarded to the plaintiff against the defendants.
(d) That any other and further relieves which the Hon'ble Court deems fit and proper in the circumstances of the case, be also awarded to the plaintiff against the defendants.
3. According to the learned Counsel appearing for the appellants, the order was passed ex parte and the next date was fixed 7th January, 2007 and thereafter 4th of April, 2007.
4. Learned Counsel appearing for the appellants contended before this Court that the dispute between the parties is totally covered by the arbitration clause of the agreement. The arbitration clause is quoted below:
Any dispute or difference of any nature whatsoever or regarding any right, liability, act, omission Or account of any of the parties hereto arising out of or in relation to this Agreement shall be referred to the sole Arbitration of the Director Marketing of the Corporation, or of some officer of the Corporation who may be nominated by the Director Marketing. The Director will not be entitled to raise any objection to any such arbitrator on the ground that the arbitrator is an officer of the Corporation or that he has to deal with the matters to which the contracts relates or that in the course of his duties or differences. In the event of the Arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason the Director Marketing as aforesaid at the time of such transfer, vacation of office or inability to. act, shall designate another person to act as arbitrator in accordance with the terms of the Agreement. Such person shall be entitled to proceed with the reference from the point at which it was left by his predecessor. It is also at term of this contract that no person other than the Director Marketing or a person nominated by such Director Marketing of the Corporation as aforesaid shall act as arbitrator hereunder. The award of the arbitrator so appointed shall be final, conclusive and binding on all parties to the Agreement. Subject to the provisions of the Arbitration Act, 1940 or any statutory modification of or re-enactment thereof and the rules made thereunder and for the time being enforce shall apply to the arbitration proceedings under this clause.
5. Initially learned Counsel appearing for the appellants contended with regard to the jurisdiction for hearing the matter by the appropriate district court Varanasi or Allahabad in view of the forum selection clause in Clause 68 of the agreement. However, such argument is not germane for the purpose at this stage since we are hearing the cause of ex parte order of injunction in connection with the application in a suit while there is arbitration clause. Apparently it appears to us that the order cannot be sustained. Neither the order speaks about sufficiency of notice giving returnable date nor with regard to any reference to the arbitration clause.
6. Learned Counsel appearing for the appellants contended that the order of injunction is totally hit by Section 41(e) and (h) of the Specific Relief Act. 1963. On the other hand by virtue of the arbitration clause they can file an application even at a pre-reference stage under Section 9 of the Arbitration and Conciliation Act, 1996.
7. We are of the view that the order is misconceived in nature. Therefore, the order impugned cannot be sustained, hence it is set aside.
8. Let the matter remanded to the court below to consider all points including the maintainability of the suit, Jurisdiction and other relevant points, which were required to be considered before passing an order of injunction specially in case of ex parte. The matter will be heard as expeditiously as possible upon sufficient notice and as per the prescribed Rule and Order under the Code of Civil Procedure provided the Court is satisfied with the Jurisdiction and the maintainability of the suit, Parties are at liberty to proceed accordingly.
9. Hence, the appeal is disposed of. However, no order is passed as to costs.
Pankaj Mithal, J.
10. I agree.