SUBHODA SHETTY Vs. BOTTOMS UP WINES

JUDGEMENT

(1.) THIS appeal is by the plaintiff in A. C. 3/97 against the order dated 12. 1. 1998 passed by the principal District Judge, Mysore.

(2.) THE parties in this appeal are referred to as arrayed in the District Court. The plaintiff and defendants 3 and 4 are partners of the first respondent firm. The partnership deed provides for arbitration in the event of dispute among the partners in relation to the business carried on by the partnership firm. In view of this clause the plaintiff has made an application for appointment of receiver in respect of the business carried on in the schedule premises under Section 9 of the Arbitration and Conciliation Act 1996 (for short'act' ). Before making that application for an interim order the plaintiff had issued a notice dated 2. 9. 1997 to the respondents seeking for arbitration. The said application was resisted by the defendants on the ground of maintainability of the application filed by the plaintiff. The contention of the defendants before the District Judge is that the application filed under Section 9 of the Act even before initiation of the arbitration proceedings is not maintainable in law. On the pleadings of the parties the learned District Judge has raised a point for consideration which reads as follows: -"whether the present petition is maintainable. " , the learned District Judge answered this point in the negative. This order is under challenge in this appeal. ,

(3.) THE point that arises for consideration in this appeal is whether the District Judge is justified in holding that the application filed by the plaintiff under Section 9 of the Act is'not maintainable in law? in order to consider this point it is useful to refer to Section 9 of the Act. Section 9: Interim measures etc. by Court - A party mav. before or during arbitral proceedings or at any time after the making of the arbitral award but beforfe it is enforced in accordance with Section 36 apply to a Court:-i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings or ii) for an interim measure of protection in respect of any of the following matters namety:-