Case Note & Summary
The appellant, M/s. Prince Marine Transport Services Pvt. Ltd., filed an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 against the order of the learned Single Judge rejecting its Section 9 application. The appellant had sought interim relief restraining the respondent, M/s. Minescape Minerals Pvt. Ltd., from alienating or creating third party rights over two barges. The learned Single Judge rejected the application on merits, holding that the appellant failed to pay the amount within the stipulated time. The respondent had raised an objection regarding the maintainability of the petition on the ground of jurisdiction, which the learned Single Judge did not decide. The appellant contended that the issue of jurisdiction was a threshold question that ought to have been decided first. The Division Bench of the Bombay High Court held that the term 'court' under Section 2(e) of the Act must be satisfied before any interim order under Section 9 can be passed. The court noted that the learned Single Judge had not decided the jurisdiction issue and had merely added a line through a speaking to minutes order, which did not cure the defect. The appeal was allowed, the impugned order was set aside, and the matter was remitted back to the learned Single Judge for fresh consideration of the Section 9 application after deciding the issue of jurisdiction. The court clarified that it had not expressed any opinion on the merits of the case.
Headnote
A) Arbitration - Interim Relief - Section 9 of Arbitration and Conciliation Act, 1996 - Jurisdiction - The court must first determine whether it has jurisdiction under Section 2(e) before granting or refusing interim relief under Section 9. The learned Single Judge rejected the Section 9 application on merits without deciding the jurisdictional objection raised by the respondent. Held that the order is unsustainable as the issue of jurisdiction is a threshold question that must be decided first (Paras 3-6). B) Arbitration - Appeal - Section 37 of Arbitration and Conciliation Act, 1996 - Maintainability - An appeal lies against an order refusing interim relief under Section 9. The appellant challenged the rejection of its Section 9 petition. Held that the appeal is maintainable and the matter is remitted back to the learned Single Judge for fresh consideration after deciding the jurisdiction issue (Paras 1, 7).
Issue of Consideration
Whether the learned Single Judge was justified in rejecting the Section 9 application without deciding the issue of jurisdiction, and whether the appeal under Section 37 is maintainable.
Final Decision
Appeal allowed. Impugned order dated 25 February 2016 and speaking to minutes order dated 2 March 2016 set aside. Arbitration Petition No.305 of 2016 restored to the file of the learned Single Judge for fresh consideration of the Section 9 application after deciding the issue of jurisdiction. All contentions kept open. No order as to costs.
Law Points
- Jurisdiction under Section 2(e) of Arbitration and Conciliation Act
- 1996 must be determined before granting or refusing interim relief under Section 9
- Court must decide jurisdiction even if petition is dismissed on merits
- Speaking to minutes cannot alter substantive order
