Case Note & Summary
The petitioner, Magic Properties Private Limited, entered into a development agreement with the respondent, Raj Pipla Co-operative Housing Society Limited, on 15th October 2005. The petitioner claimed to have fulfilled all obligations and handed over possession of the complete premises to the society's members on 11th April 2011, and the municipal corporation issued a full occupation certificate. However, the society allegedly prevented the petitioner from accessing various portions of the building and interfered with its possession. The petitioner filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (Arbitration Petition (Lodging) No.528 of 2012) seeking an injunction. The court passed ad-interim orders. Subsequently, an arbitral tribunal was constituted. The petitioner then filed Arbitration Petition No.983 of 2014 seeking an order directing the respondent to comply with an order dated 2nd October 2012 passed by the arbitral tribunal, and Arbitration Petition No.1167 of 2014 seeking appointment of a court commissioner to inspect the building and ensure compliance of a court order dated 30th June 2014, with police assistance. The court held that once the arbitral tribunal is constituted, the court's power under Section 9 is limited and cannot be used to enforce an arbitral order or appoint a commissioner for compliance. The proper remedy is to approach the arbitral tribunal or seek enforcement under Section 17(2) of the Act. Both petitions were dismissed.
Headnote
A) Arbitration Law - Interim Measures - Section 9 of the Arbitration and Conciliation Act, 1996 - Power of Court after Constitution of Arbitral Tribunal - The court held that once an arbitral tribunal is constituted, the court's power under Section 9 is limited to granting interim measures of protection and cannot be used to enforce an order passed by the arbitral tribunal or to appoint a court commissioner for compliance of a court order. The proper remedy is to approach the arbitral tribunal itself. (Paras 1-10)
B) Arbitration Law - Enforcement of Arbitral Orders - Section 17 of the Arbitration and Conciliation Act, 1996 - The court observed that an order passed by the arbitral tribunal under Section 17 is enforceable as an order of the court under Section 17(2) of the Act, and the party must seek enforcement before the court under that provision, not under Section 9. (Paras 1-10)
Issue of Consideration
Whether the court can entertain petitions under Section 9 of the Arbitration and Conciliation Act, 1996 for enforcement of an interim order passed by the arbitral tribunal and for appointment of a court commissioner to ensure compliance of a court order after the arbitral tribunal has been constituted.
Final Decision
Both arbitration petitions are dismissed. The court held that once the arbitral tribunal is constituted, the court's power under Section 9 is limited and cannot be used to enforce an arbitral order or appoint a commissioner for compliance. The proper remedy is to approach the arbitral tribunal or seek enforcement under Section 17(2) of the Act.
Law Points
- Section 9 of the Arbitration and Conciliation Act
- 1996
- once arbitral tribunal is constituted
- court's power is limited
- cannot enforce interim orders
- cannot appoint court commissioner for compliance
Case Details
2015 LawText (BOM) (10) 90
Arbitration Petition No.983 of 2014 with Arbitration Petition No.1167 of 2014
Mr.D.D. Madon, Senior Counsel with Mr.Simil Purohit and Ms.Sujata More i/b Desai Desai Carrimjee & Mulla for the Petitioner. Mr.Harinder Toor with Ms.Sheelang Shah i/b Mr.Prateik Parija for the Respondent.
Magic Properties Private Limited
Raj Pipla Co-operative Housing Society Limited
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Arbitration petitions under Section 9 of the Arbitration and Conciliation Act, 1996 seeking enforcement of an arbitral order and appointment of a court commissioner.
Remedy Sought
Petitioner sought direction to respondent to comply with arbitral order dated 2nd October 2012 and appointment of court commissioner to inspect building and ensure compliance of court order dated 30th June 2014 with police assistance.
Filing Reason
Respondent allegedly prevented petitioner from accessing portions of building and interfered with possession after development agreement.
Previous Decisions
Ad-interim orders were passed by the court in earlier Section 9 petition (Arbitration Petition (Lodging) No.528 of 2012). An arbitral tribunal was constituted and passed an order on 2nd October 2012. The court also passed an order on 30th June 2014.
Issues
Whether the court can entertain a petition under Section 9 of the Arbitration and Conciliation Act, 1996 for enforcement of an interim order passed by the arbitral tribunal after the tribunal has been constituted.
Whether the court can appoint a court commissioner under Section 9 to ensure compliance of a court order after the arbitral tribunal has been constituted.
Submissions/Arguments
Petitioner argued that the respondent was not complying with the arbitral order and court order, and sought court intervention under Section 9.
Respondent argued that once the arbitral tribunal is constituted, the court's power under Section 9 is limited and the petitioner should approach the tribunal.
Ratio Decidendi
Once an arbitral tribunal is constituted, the court's power under Section 9 of the Arbitration and Conciliation Act, 1996 is limited to granting interim measures of protection and cannot be used to enforce an order passed by the arbitral tribunal or to appoint a court commissioner for compliance of a court order. The proper remedy is to approach the arbitral tribunal itself or seek enforcement under Section 17(2) of the Act.
Judgment Excerpts
By consent of parties, both these arbitration petitions were heard together and are being disposed of by a common order.
In Arbitration Petition No.983 of 2014 filed by the petitioner, the petitioner has prayed for an order and direction against the respondent to comply with the order dated 2nd October, 2012 passed by the arbitral tribunal and various other interim measures.
Procedural History
Petitioner filed Arbitration Petition (Lodging) No.528 of 2012 under Section 9 of the Arbitration and Conciliation Act, 1996 seeking injunction. Court passed ad-interim orders. Arbitral tribunal was constituted and passed order on 2nd October 2012. Petitioner filed Arbitration Petition No.983 of 2014 seeking enforcement of that order. Court passed order on 30th June 2014. Petitioner filed Arbitration Petition No.1167 of 2014 seeking appointment of court commissioner. Both petitions heard together and dismissed.
Acts & Sections
- Arbitration and Conciliation Act, 1996: Section 9, Section 17
