PENTIUM CONSTRUCTION PVT LTD. Vs. P.K.INFRASTRUCTURE

JUDGEMENT

(1.) The appeal arises from an order in an application under Section 9 of the Arbitration and Conciliation Act , 1996 ['Act of 1996' for brevity]. The grievance of the petitioner before the District Court (respondent here) was that there are amounts due from the respondents (appellants here) with respect to the construction of a multi-storeyed apartment complex. Admittedly there are disputes between the parties, possible of resolution under the clause for arbitration in the agreement; which, despite repeated requests, the appellants have not thought it fit to facilitate by appointing an Arbitrator. The respondents sought for a prohibitory injunction restraining the appellants from alienating, encumbering or divesting title over the property until the dispute is resolved. The District Court granted the prayer, against which the appeal is filed. We were told that the respondents in the appeal have also filed an Arbitration Request, which we called for to have a quietus insofar as the initiation of Arbitration.

(2.) We heard Sri.B.G.Harindranath, learned Counsel appearing for the appellants and Sri.P.Deepak, learned Counsel appearing for the respondents in the appeal; which status is adopted herein for reference to the parties.

(3.) There was a question raised by the Registry with respect to the Court Fees payable when the appeal was filed; which resulted in the case being posted as unnumbered. This Court by order dated 30.10.2020 directed the appeal to be numbered, leaving the question to be considered at the time of hearing. The proceedings initiated before the District Court is under Section 9 for interim measure. Appeal is provided under Section 37 of the Act. The instant appeal is from an order 'granting or refusing to grant any measure under Section 9 ', as contemplated in clause (b) of Section 37(1) . In fact, prior to the amendment of 2016, clause (b) was numbered as clause (a) and clause (c) as clause (b). Clause (c) [which was clause (b) prior to amendment] refers to setting aside of an arbitral award under Section 34 , which requires payment of ad valorem Court Fee. Pre-amended clause (a) [which is clause (b) now] was an appeal against granting or refusing a measure under Section 9 , for which Court Fee is payable under Article 4. Sufficient support can be garnered from the decision of another Division Bench of this Court in Asya v. Sundaram Finance Limited [2016 KHC 537 = 2016 (3) KLT 195]. It was held that an appeal under clause (a) of Section 37(1) would attract Court Fee only in terms of Article 4(i) of Second Schedule to the Court Fees and Suits Valuation Act , 1959 (Kerala); which now is under clause (b).