L.C. Cable Limited Vs. Escorts Ltd. and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/635627
SubjectArbitration
CourtPunjab and Haryana High Court
Decided OnDec-17-2009
Judge Harbans Lal, J.
Reported in(2010)157PLR481
AppellantL.C. Cable Limited
RespondentEscorts Ltd. and anr.
Cases ReferredNemi Chand Burad and Anr. v. Jorawarmal and Ors.
Excerpt:
- harbans lal, j.1. this civil revision under article 227 of the constitution of india has been filed for quashing/setting aside the order dated november 11, 2009 (annexure p-1) passed by the court of civil judge (senior division), faridabad in civil suit no. 444 of 2009. vide this exparte order, the petitioner has been injuncted from acting against the plaintiff-respondent in any manner whatsoever on the basis of draft guarantee agreement dated 21.3.2007.2. i have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.3. the learned counsel for the petitioner stressing his every nerve valiantly urged that the suit filed by first respondent is clearly an abuse of the process of law and is liable to be dismissed along with impugned order. the said respondent concealed the fact of arbitration proceedings which had been pending for almost two years at the time of filing of the suit. this respondent had all along participated therein without any demur and had taken a specific objection that the guarantee agreement was not valid or unsustainable against it, the arbitral tribunal had framed a specific issue regarding the validity and enforceability of the guarantee agreement. the suit has been filed by it in anticipation of an award that was likely to be passed by the arbitral tribunal. the only issue which arises for determination in the suit is validity or enforceability of the guarantee agreement. since the arbitral tribunal is seized of the same, the suit is not maintainable and therefore, the jurisdictional error has been committed by the learned trial court in entertaining the suit and passing the impugned order. it is well settled law that civil courts have no jurisdiction to interfere in the matters where parties to contract have chosen arbitration as forum for their settlement. the impugned order is thus beyond the jurisdiction of the learned trial court. this respondent had willingly participated in the arbitration proceedings and had acquiesced in its continuance and have thus waived or abandoned its right if any to apply for remedy to civil court by way of suit and had no prima facie case at all in the present suit. since the guarantee agreement is part of the distributive agreement, it is also governed by laws of the state of new york, the united states of america. the learned trial court has erred in forming a prima facie opinion on the validity of the guarantee agreement without any reference at all to the laws of state of new york. the respondent has been defending the arbitration proceedings for the last almost two years without even a whisper of any hardship. the plea of irreparable loss in terms of expenditure the first respondent will have to incur is also a sham portrayed by it to obtain an ex parte order of injunction. to buttress his stance in relation to jurisdiction, he has sought to place reliance on industrial credit and investment corporation of india ltd. v. grapco industries ltd. and ors. : (1999) 4 scc 710 wherein it has been observed that ' there is no doubt that the high court can even interfere with the interim orders of the courts and tribunals under article 227 of the constitution, if the order is made without jurisdiction.'4. to tide over these submissions, the learned counsel, for the respondent maintained that if the petitioner was aggrieved with the impugned order, the best remedy open, to it was to move an application under order xxxix, rule 4 of the code of civil procedure seeking vacation of ad-interim injunction. besides this, the other alternative efficacious remedy available to the petitioner was to pose a challenge to this order by preferring an appeal there against. in support of these submissions, the learned counsel has referred to bongaugaon municipality and anr. v. bustimall suklesha and anr. 1997(3) ccc 284, harbans singh d.s.p. (retd.) v. rajinder rajan 1988 (1) plr 467, dr. rajaratan basavanneppa ghanti and anr. v. chandrasekhar madadevappa aramani and ors. 2004 (2) rcr(civil) 89, shyam kishore goswami v. district magistrate, hamirpur and anr. : air 1993 (all) 1, raj kumar rowla v. manabendra banerjee and ors. : air 2007 (cal) 154, sadhana lodh v. national insurance co. ltd. and anr. : air 2003(sc) 1561, a. venkatasub-biah naidu v. s. chailappan and ors. : air 2000 (sc) 3032, union of india v. mis yash paul contractor 1991 plj 632, r.k. aggarwal v. smt. ch. vijaya kumari : 2007 (4) alt 838, punjab national bank v. o.c. krishnan and ors. : air 2001 (sc) 3208 and cox and kings (i) ltd. v. raj kumar mittal and anr. 12 2008 mpd 1763.5. i have given a deep and thoughtful consideration to the rival contentions.6. the learned counsel for the petitioner had been emphatic in the course of arguments that the first respondent is guilty of suppression of material fact with regard to the pendency of arbitration proceedings. in paragraph no. 14 of the plaint, it has been averred that 'the defendant no. 1 also illegally and by distorting material facts has also initiated arbitration proceedings against the plaintiff.' this clearly indicates that the pendency of arbitration proceedings has been disclosed. sequelly, this contention pales into insignificance. the thrust of the arguments raised on behalf of the petitioner is that civil court lacks jurisdiction to entertain and try the civil suit. the petitioner instead of unfolding its case in relation to jurisdiction before the learned trial court has moved to this court by invoking the provisions of article 227 of the constitution of india. under this article, the high court can not interfere with the exercise of a discretionary power vested in the inferior authority, court or, tribunal, unless its findings or order is clearly perverse. it may be stated that the high court's power under article 226/227 of the constitution of india should be exercised only when there is dereliction of duty and flagrant violation of law and should be exercised most sparingly in a case, where grave injustice would be done unless the court interferes. it cannot be used as appellate or revisional forum as observed in re: rajendra v. state of rajasthan : air 2004 rajasthan 229. adverting to the instant one, if the petitioner was aggrieved by the impugned order, it could have recourse to the appellate court. in re: babhutmal raichand oswal v. laxibai r. tarte and anr. : 1975 supreme court 1297, it has been observed by the apex court that 'the power of superintendence of high court under article 227 being extraordinary is to be exercised most sparingly and only in appropriate cases. this power, as in the case of certiorari jurisdiction, cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal.7. a careful reading of section 115 of the code of civil procedure reveals that the revisional power can be exercised only when there is no appeal provided for. hence, when a statute provides for an appeal against a judicial order, revision against such an order will not lie irrespective of the fact whether the right of appeal is absolute or conditional, restricted or otherwise. order xliii rule 1(r) of the code of civil procedure lays down that an appeal shall lie from an order under rule 1, rule 2, (rule 2-a), rule 4 or rule 10 of order xxxix. axiomatically, in view of this provision of law, the impugned order is appealable.8. the high court would not ordinarily in exercise of its discretion entertain a petition under article 227 where adequate alternative legal remedy is available. however, this principle is not rigid and inflexible. the rule of alternative remedy does not exclude the jurisdiction of the high court in exceptional cases. in re: m/s richness verwaltung gmbh v. indian oil corporation (1999)121 plt 842 one party was to establish stand by letter of credit and the other party was to furnish performance bond as per mutually agreed format. the draft letter of party was not approved by second party. the draft agreement was subject to agreeing on format. the exchange of correspondence showed that format was not acceptable. the letter of credit and performance guarantee were meant to be condition precedent. it was held by the supreme court that concluded agreement had not come into existence. it has been further held that in the absence at acceptance of stand by letter of credit and performance guarantee, no enforceable agreement could be said to have come into existence. the facts of this case bear semblance with the instant one. the learned trial court has observed in the impugned order that ' a perusal of the said bipartite distributorship agreement shows that the plaintiff is not a party to the said agreement nor the draft guarantee agreement has been accepted by defendant no. l. so, the said draft guarantee agreement cannot become a binding contract between the parties.'9. as observed in re: nemi chand burad and anr. v. jorawarmal and ors. : air 2005 rajasthan 235 the consistent view has been taken by the hon'ble supreme court and this high court while exercising power under article 227 that the documents which are placed in the writ petition cannot be examined, as the petitioner has failed to produce the same before the trial court. this court cannot sit as an appellate court.' if the matter is looked in the background these observations, the documents on the premise of which it has been sought to be argued that the trial court has got no jurisdiction, having not been produced before the learned trial court, cannot be examined. if it be so, the question regarding jurisdiction cannot be determined by this court. as such, this question is left open for being decided by the courts below.10. the relevant paragraphs of the plaint reads as under:14. that in its endeavour to interpret the said draft guarantee agreement as a binding contract, the defendant no. 1 invoked the arbitration clause contained in its bi-lateral and bipartite distributorship agreement with the defendant no. 2. the defendant no. 1 also illegally and by distorting material facts has also initiated arbitration proceedings inter-alia against the plaintiff.15. that it is a matter of record that no concluded and binding contract exists between the defendant no. 1 and the plaintiff. it is also a matter of record that the plaintiff is a stranger to the distributorship agreement executed between the defendant no. 1 and the defendant no. 2. it is further a matter of record that no arbitration agreement exists between the defendant no. 1 and the plaintiff.11. in the impugned order annexure p-1 it has been observed as under:however, defendant no. 1 issued a notice on 16.11.2007-from perusal of which it appears that the defendant no. 1 treated the originally sent draft guarantee agreement as a binding contract between defendant no. 1 and plaintiff and on the basis of the said draft guarantee agreement it has invoked the arbitration clause contained in its bi-lateral and bipartite distributorship agreement with defendant no. 2. a perusal of the said bipartite distributorship agreement shows that the plaintiff is not a party to the said agreement nor the draft guarantee agreement has been accepted by defendant no. 1 so the said draft guarantee agreement cannot become a binding contract between the parties. thus, on the basis of said draft guarantee agreement, defendant no. 1 cannot take any action against the plaintiff. in these circumstances, the defendant no. 1 is restrained from acting against the plaintiff in any manner whatsoever on the basis of draft guarantee agreement dated 21.3.2007 till further orders.12. instead of approaching this court by filing this revision petition it was desirable for the petitioner to appear before the learned trial court and move an application seeking vacation of exparte ad interim injunction by calling in aid the provisions of order xxxix rule 4 of the code of civil procedure or in the alternative, the impugned order could have been appealed against. as per allegations embodied in the plaint, the draft agreement was not concluded. if it be so, the same could not be deemed to be binding upon the plaintiff.13. in re: bongaugaon municipality and anr. (supra) it has been held that 'supervisory jurisdiction under article 227 cannot be exercised as alternative remedy of appeal is available. further, it has been observed in re:harbans singh, dsp (retd.) (supra) that an appeal against ex parte order is maintainable under order xliii, rule 1(r) of the code of civil procedure as it was in fact an order under rule 1 and 2 of order xxxix of the code of civil procedure. in re: dr. rajaratan basavanmppa ghanti and anr. (supra) it has been held that since party has adequate alternative remedy of appeal under statute, hence revision is not maintainable. further in re: shyam kishore goswami (supra) it has been held by division bench of allahabad high court that order granting temporary injunction is appealable. the petitioner having efficacious remedy, the writ petition is barred. in re: sadhana lodh (supra) it has been observed that right of appeal is a statutory right and where law provides remedy of filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under article 226/227 of the constitution on the premise-that the insurer had limited grounds available for challenging the award given by the tribunal. in a. venkataubbiah naidu (supra) the apex court while dealing with the scope of order xxxix rule 1, order xliii rule 1 of the code of civil procedure observed that 'the power to pass interim ex-parte order of injunction doesn't emanate from rule 1. said rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till the disposal of the suit. any order passed in exercise of the said powers in rule 1 would be appealable as indicated in order 43 rule 1 of the code. the choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief.' in re: m/s yash paul contractor (supra) while dealing with the scope of section 115(2), order xliii rule 1(r) and order xxxix rules 1 and 2 code of civil procedure, this court held that the order granting ad interim injunction is appealable. revision is not maintainable in view of sub section (2) of section 115 of the code of civil procedure. further in r.k. aggarwal (supra) it has been observed that availability of alternative remedy is clearly a bar for exercise of jurisdiction under articles 227 of the constitution of india is well settled proposition. where statutory right to file appeal has been provided for, it is not open to high court to entertain a petition 'under article 227 of the constitution. even if where remedy by way of appeal has not been provided for against the order and judgment of the district judge, the remedy available to the aggrieved person is to file a revision before the high court under section 115 of the code of civil procedure. where remedy for filing a revision before the high court under section 115 of the code of civil procedure has been expressly barred by a state enactment, only in that case, the petition under article 227 of the constitution would lie and not under article 226 of the constitution. in re: punjab national bank (supra) the supreme court has held that 'even though a provision under an act cannot expressly oust the jurisdiction of the court under articles 226 and 227 of the constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the court should refrain from exercising its jurisdiction under the said constitutional provisions. this was a case where the high court should not have entertained the petition under article 227 of the constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the act.'14. in the ultimate analysis, it is held that this petition is not maintainable as alternative efficacious remedy was available to the petitioner. in such circumstances, the petitioner is directed to take recourse to the appeal mechanism as provided by order xliii, rule l(r) of the code of civil procedure or to seek vacation of the ad-interim injunction by invoking the provisions of order xxxix rule 4 ibid. however, it is clarified that the above observations in no manner shall be construed to mean an expression of opinion on merits of the ad-interim injunction application.this revision petition is disposed of accordingly.
Judgment:

Harbans Lal, J.

1. This civil revision under Article 227 of the Constitution of India has been filed for quashing/setting aside the order dated November 11, 2009 (Annexure P-1) passed by the court of Civil Judge (Senior Division), Faridabad in civil suit No. 444 of 2009. Vide this exparte order, the petitioner has been injuncted from acting against the plaintiff-respondent in any manner whatsoever on the basis of draft guarantee agreement dated 21.3.2007.

2. I have heard the learned Counsel for the parties, besides perusing the record with due care and circumspection.

3. The learned Counsel for the petitioner stressing his every nerve valiantly urged that the suit filed by first respondent is clearly an abuse of the process of law and is liable to be dismissed along with impugned order. The said respondent concealed the fact of arbitration proceedings which had been pending for almost two years at the time of filing of the suit. This respondent had all along participated therein without any demur and had taken a specific objection that the guarantee agreement was not valid or unsustainable against it, The Arbitral Tribunal had framed a specific issue regarding the validity and enforceability of the guarantee agreement. The suit has been filed by it in anticipation of an award that was likely to be passed by the Arbitral Tribunal. The only issue which arises for determination in the suit is validity or enforceability of the Guarantee Agreement. Since the Arbitral Tribunal is seized of the same, the suit is not maintainable and therefore, the jurisdictional error has been committed by the learned trial Court in entertaining the suit and passing the impugned order. It is well settled law that Civil Courts have no jurisdiction to interfere in the matters where parties to contract have chosen arbitration as forum for their settlement. The impugned order is thus beyond the jurisdiction of the learned trial Court. This respondent had willingly participated in the arbitration proceedings and had acquiesced in its continuance and have thus waived or abandoned its right if any to apply for remedy to Civil Court by way of suit and had no prima facie case at all in the present suit. Since the Guarantee Agreement is part of the Distributive Agreement, it is also governed by laws of the State of New York, the United States of America. The learned trial Court has erred in forming a prima facie opinion on the validity of the Guarantee Agreement without any reference at all to the laws of State of New York. The respondent has been defending the arbitration proceedings for the last almost two years without even a whisper of any hardship. The plea of irreparable loss in terms of expenditure the first respondent will have to incur is also a sham portrayed by it to obtain an ex parte order of injunction. To buttress his stance in relation to jurisdiction, he has sought to place reliance on Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd. and Ors. : (1999) 4 SCC 710 wherein it has been observed that ' There is no doubt that the High Court can even interfere with the interim orders of the Courts and Tribunals under Article 227 of the Constitution, if the order is made without jurisdiction.'

4. To tide over these submissions, the learned Counsel, for the respondent maintained that if the petitioner was aggrieved with the impugned order, the best remedy open, to it was to move an application under Order XXXIX, Rule 4 of the Code of Civil Procedure seeking vacation of ad-interim injunction. Besides this, the other alternative efficacious remedy available to the petitioner was to pose a challenge to this order by preferring an appeal there against. In support of these submissions, the learned Counsel has referred to Bongaugaon Municipality and Anr. v. Bustimall Suklesha and Anr. 1997(3) CCC 284, Harbans Singh D.S.P. (Retd.) v. Rajinder Rajan 1988 (1) PLR 467, Dr. Rajaratan Basavanneppa Ghanti and Anr. v. Chandrasekhar Madadevappa Aramani and Ors. 2004 (2) RCR(Civil) 89, Shyam Kishore Goswami v. District Magistrate, Hamirpur and Anr. : AIR 1993 (All) 1, Raj Kumar Rowla v. Manabendra Banerjee and Ors. : AIR 2007 (Cal) 154, Sadhana Lodh v. National Insurance Co. Ltd. and Anr. : AIR 2003(SC) 1561, A. Venkatasub-biah Naidu v. S. Chailappan and Ors. : AIR 2000 (SC) 3032, Union of India v. Mis Yash Paul Contractor 1991 PLJ 632, R.K. Aggarwal v. Smt. Ch. Vijaya Kumari : 2007 (4) ALT 838, punjab National Bank v. O.C. Krishnan and Ors. : AIR 2001 (SC) 3208 and Cox and Kings (I) Ltd. v. Raj Kumar Mittal and Anr. 12 2008 MPD 1763.

5. I have given a deep and thoughtful consideration to the rival contentions.

6. The learned Counsel for the petitioner had been emphatic in the course of arguments that the first respondent is guilty of suppression of material fact with regard to the pendency of arbitration proceedings. In paragraph No. 14 of the plaint, it has been averred that 'The defendant No. 1 also illegally and by distorting material facts has also initiated arbitration proceedings against the plaintiff.' This clearly indicates that the pendency of arbitration proceedings has been disclosed. Sequelly, this contention pales into insignificance. The thrust of the arguments raised on behalf of the petitioner is that civil court lacks jurisdiction to entertain and try the civil suit. The petitioner instead of unfolding its case in relation to jurisdiction before the learned trial Court has moved to this Court by invoking the Provisions of Article 227 of the Constitution of India. Under this Article, the High Court can not interfere with the exercise of a discretionary power vested in the inferior Authority, Court or, Tribunal, unless its findings or order is clearly perverse. It may be stated that the High Court's power under Article 226/227 of the Constitution of India should be exercised only when there is dereliction of duty and flagrant violation of law and should be exercised most sparingly in a case, where grave injustice would be done unless the Court interferes. It cannot be used as appellate or revisional forum as observed in re: Rajendra v. State of Rajasthan : AIR 2004 Rajasthan 229. Adverting to the instant one, if the petitioner was aggrieved by the impugned order, it could have recourse to the appellate Court. In re: Babhutmal Raichand Oswal v. Laxibai R. Tarte and Anr. : 1975 Supreme Court 1297, it has been observed by the Apex Court that 'The Power of superintendence of High Court under Article 227 being extraordinary is to be exercised most sparingly and only in appropriate cases. This power, as in the case of certiorari jurisdiction, cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its Statutory power as a court of appeal.

7. A careful reading of Section 115 of the Code of Civil Procedure reveals that the revisional Power can be exercised only when there is no appeal provided for. Hence, when a statute provides for an appeal against a judicial order, revision against such an order will not lie irrespective of the fact whether the right of appeal is absolute or conditional, restricted or otherwise. Order XLIII Rule 1(r) of the Code of Civil Procedure lays down that an appeal shall lie from an order under Rule 1, Rule 2, (Rule 2-A), Rule 4 or Rule 10 of Order XXXIX. Axiomatically, in view of this provision of law, the impugned order is appealable.

8. The High Court would not ordinarily in exercise of its discretion entertain a petition under Article 227 where adequate alternative legal remedy is available. However, this principle is not rigid and inflexible. The rule of alternative remedy does not exclude the jurisdiction of the High Court in exceptional cases. In re: M/s Richness Verwaltung GMBH v. Indian Oil Corporation (1999)121 Plt 842 one party was to establish stand by letter of credit and the other party was to furnish performance bond as per mutually agreed format. The draft letter of party was not approved by second party. The draft agreement was subject to agreeing on format. The exchange of correspondence showed that format was not acceptable. The letter of credit and performance guarantee were meant to be condition precedent. It was held by the Supreme Court that concluded agreement had not come into existence. It has been further held that in the absence at acceptance of stand by letter of credit and performance guarantee, no enforceable agreement could be said to have come into existence. The facts of this case bear semblance with the instant one. The learned trial Court has observed in the impugned order that ' A perusal of the said Bipartite Distributorship Agreement shows that the plaintiff is not a party to the said agreement nor the draft guarantee agreement has been accepted by defendant No. l. So, the said draft guarantee agreement cannot become a binding contract between the parties.'

9. As observed in re: Nemi Chand Burad and Anr. v. Jorawarmal and Ors. : AIR 2005 Rajasthan 235 the consistent view has been taken by the Hon'ble Supreme Court and this High Court while exercising power under Article 227 that the documents which are placed in the writ petition cannot be examined, as the petitioner has failed to produce the same before the trial Court. This Court cannot sit as an appellate Court.' If the matter is looked in the background these observations, the documents on the premise of which it has been sought to be argued that the trial Court has got no jurisdiction, having not been produced before the learned trial Court, cannot be examined. If it be so, the question regarding jurisdiction cannot be determined by this Court. As such, this question is left open for being decided by the Courts below.

10. The relevant paragraphs of the plaint reads as under:

14. That in its endeavour to interpret the said draft Guarantee Agreement as a binding contract, the defendant No. 1 invoked the arbitration clause contained in its bi-lateral and bipartite Distributorship Agreement with the defendant No. 2. The defendant No. 1 also illegally and by distorting material facts has also initiated arbitration proceedings inter-alia against the plaintiff.

15. That it is a matter of record that no concluded and binding contract exists between the defendant No. 1 and the plaintiff. It is also a matter of record that the plaintiff is a stranger to the Distributorship Agreement executed between the defendant No. 1 and the defendant No. 2. It is further a matter of record that no arbitration agreement exists between the defendant No. 1 and the plaintiff.

11. In the impugned order Annexure P-1 it has been observed as under:

However, Defendant No. 1 issued a notice on 16.11.2007-from perusal of which it appears that the defendant No. 1 treated the originally sent draft guarantee agreement as a binding contract between defendant No. 1 and plaintiff and on the basis of the said draft guarantee agreement it has invoked the arbitration clause contained in its bi-lateral and Bipartite Distributorship Agreement with defendant No. 2. A perusal of the said Bipartite Distributorship Agreement shows that the plaintiff is not a party to the said agreement nor the draft guarantee agreement has been accepted by defendant No. 1 So the said draft guarantee agreement cannot become a binding contract between the parties. Thus, on the basis of said draft guarantee agreement, defendant No. 1 cannot take any action against the plaintiff. In these circumstances, the defendant No. 1 is restrained from acting against the plaintiff in any manner whatsoever on the basis of draft guarantee agreement dated 21.3.2007 till further orders.

12. Instead of approaching this Court by filing this revision petition it was desirable for the petitioner to appear before the learned trial Court and move an application seeking vacation of exparte ad interim injunction by calling in aid the provisions of Order XXXIX Rule 4 of the Code of Civil Procedure or in the alternative, the impugned order could have been appealed against. As per allegations embodied in the plaint, the Draft Agreement was not concluded. If it be so, the same could not be deemed to be binding upon the plaintiff.

13. In re: Bongaugaon Municipality and Anr. (supra) it has been held that 'Supervisory jurisdiction under Article 227 cannot be exercised as alternative remedy of appeal is available. Further, it has been observed in re:Harbans Singh, DSP (Retd.) (supra) that an appeal against ex parte order is maintainable under Order XLIII, Rule 1(r) of the Code of Civil Procedure as it was in fact an order under Rule 1 and 2 of Order XXXIX of the Code of Civil Procedure. In re: Dr. Rajaratan Basavanmppa Ghanti and Anr. (supra) it has been held that since party has adequate alternative remedy of appeal under statute, hence revision is not maintainable. Further in re: Shyam Kishore Goswami (supra) it has been held by Division Bench of Allahabad High Court that order granting temporary injunction is appealable. The petitioner having efficacious remedy, the writ petition is barred. In re: Sadhana Lodh (supra) it has been observed that right of appeal is a statutory right and where law provides remedy of filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise-that the insurer had limited grounds available for challenging the award given by the Tribunal. In A. Venkataubbiah Naidu (supra) the Apex court while dealing with the scope of Order XXXIX Rule 1, ORDER XLIII Rule 1 of the Code of Civil Procedure observed that 'The power to pass interim ex-parte order of injunction doesn't emanate from Rule 1. Said Rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till the disposal of the suit. Any order passed in exercise of the said powers in Rule 1 would be appealable as indicated in Order 43 Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate Court or to approach the same Court which passed the ex parte order for any relief.' In re: M/s Yash Paul Contractor (supra) while dealing with the scope of Section 115(2), Order XLIII Rule 1(r) and Order XXXIX Rules 1 and 2 Code of Civil Procedure, this Court held that the order granting ad interim injunction is appealable. Revision is not maintainable in view of sub Section (2) of Section 115 of the Code of Civil Procedure. Further in R.K. Aggarwal (supra) it has been observed that availability of alternative remedy is clearly a bar for exercise of jurisdiction under Articles 227 of the Constitution of India is well settled proposition. Where statutory right to file appeal has been provided for, it is not open to High Court to entertain a petition 'under Article 227 of the Constitution. Even if where remedy by way of appeal has not been provided for against the order and judgment of the District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of the Code of Civil Procedure has been expressly barred by a State enactment, only in that case, the petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. In re: Punjab National Bank (supra) the Supreme Court has held that 'Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the court should refrain from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act.'

14. In the ultimate analysis, it is held that this petition is not maintainable as alternative efficacious remedy was available to the petitioner. In such circumstances, the petitioner is directed to take recourse to the appeal mechanism as provided by Order XLIII, rule l(r) of the Code of Civil Procedure or to seek vacation of the ad-interim injunction by invoking the provisions of Order XXXIX rule 4 ibid. However, it is clarified that the above observations in no manner shall be construed to mean an expression of opinion on merits of the ad-interim injunction application.

This revision petition is disposed of accordingly.