Case Note & Summary
The petitioners, Mineira Nacional Limitada and others, filed a writ petition challenging two orders dated 13.01.2016 and 29.11.2016 passed by the learned Principal District Judge (PDJ), Panaji, in Civil Miscellaneous Application No. 119/2013 in Arbitration Application No. 36/2012. The PDJ had allowed an application under Section 9 of the Arbitration and Conciliation Act, 1996, filed by the first respondent, Hardesh Ores Private Limited, directing the petitioners to maintain status quo and not to alienate certain properties. The petitioners contended that the application under Section 9 was not maintainable because the first respondent had not complied with the mandatory pre-arbitration procedure agreed upon in the contract between the parties. The contract required that before invoking arbitration, the parties must first attempt to settle the dispute through a named conciliator. The first respondent had directly approached the court under Section 9 without attempting such conciliation. The court examined the arbitration agreement and found that the pre-arbitration procedure was a condition precedent to the invocation of arbitration. The court held that the PDJ had no jurisdiction to entertain the Section 9 application until the pre-arbitration procedure was exhausted. Consequently, the impugned orders were set aside, and the writ petition was allowed. The court also noted that the first respondent was at liberty to invoke arbitration after complying with the pre-arbitration procedure.
Headnote
A) Arbitration - Section 9 of Arbitration and Conciliation Act, 1996 - Interim Measures - Pre-arbitration Procedure - The court held that the learned Principal District Judge erred in entertaining the application under Section 9 without the applicant first exhausting the mandatory pre-arbitration procedure agreed upon in the contract. The dispute resolution mechanism required the parties to first attempt settlement through a named conciliator before invoking arbitration. Since the applicant failed to comply with this condition precedent, the application under Section 9 was not maintainable. (Paras 2-10) B) Arbitration - Section 9 of Arbitration and Conciliation Act, 1996 - Jurisdiction - Condition Precedent - The court held that the requirement of a pre-arbitration procedure is a condition precedent to the invocation of arbitration and consequently to the jurisdiction of the court under Section 9. The court cannot grant interim relief unless the arbitration agreement has been properly invoked in accordance with its terms. (Paras 11-15) C) Arbitration - Section 9 of Arbitration and Conciliation Act, 1996 - Interim Orders - Setting Aside - The court set aside the impugned orders dated 13.01.2016 and 29.11.2016 passed by the learned Principal District Judge, Panaji, in Civil Miscellaneous Application No. 119/2013 in Arbitration Application No. 36/2012, as the orders were passed without jurisdiction. (Paras 16-18)
Issue of Consideration
Whether the learned Principal District Judge could entertain and grant interim relief under Section 9 of the Arbitration and Conciliation Act, 1996, without the applicant first complying with the mandatory pre-arbitration procedure agreed upon between the parties.
Final Decision
The writ petition is allowed. The impugned orders dated 13.01.2016 and 29.11.2016 passed by the learned Principal District Judge, Panaji, in Civil Miscellaneous Application No. 119/2013 in Arbitration Application No. 36/2012 are set aside. The first respondent is at liberty to invoke arbitration after complying with the pre-arbitration procedure.
Law Points
- Arbitration
- Section 9 of Arbitration and Conciliation Act
- 1996
- Pre-arbitration procedure
- Interim measures
- Jurisdiction of court
