MUNICIPALITY OF QUILON & ANOTHER Vs. S. VISWAMBHARAN

JUDGEMENT

(1.) REVISION petitioners are the defendants in O.S. (Arbitration) 160/85 of the Addl. Sub Court, Quilon. The respondeut(plaintiff) filed LA. 724/86 for deputing a commissioner to ascertain the extent of the work done, to make measurements of the work done and to prepare an inventory of the materials belonging to him and kept at the work site. The learned Sub Judge allowed the petition. Aggrieved by the same, the above C.R.P. has been filed by the defendants. The question to be considered is as to whether a court exercising powers under Sec. 20 of the Arbitration Act, 1940 has power to allow a commission application before arbitration proceedings have started. Revision petitioners contend that Sec. 41(a) of the Arbitration Act relates only to procedures to be followed by the court and that the applications for appointment of receiver and for the grant of injunction and commission are dealt with under Sec. 41(b) of the Act which can be exercised only when the matter is pending before the Arbitrator and not before the arbitration proceeding's have started Admittedly, arbitrator has not been appointed in this case. Commission application has been filed by the respondent at a stage when the court has not decided whether arbitrator should be appointed or not.

(2.) SEC , 41 of the Arbitration Act deals with the procedure and powers of the court. Sec. 41 reads:

(3.) COUNSEL for the respondent relied on, 1983 K.L.T. 266 (Gokuldas v. Union of India) ( : A.I.R. 1983 Ker. 169) wherein it is held that in a proceeding under Sec. 20 which is a proceeding under the Act the Court will have the power to grant injunction, if a prima facie case is made out and other conditions for the grant of injunction are satisfied. On an analogy it is contended that the court below validly exercised its power in granting the commission application. Counsel for (he respondent relied on : A. I R. 1978 Ker. 223 (Baby Paul v. Hindustan Paper Corporation) wherein it has been held that "arbitration proceedings" do not commence from the stage of arbitration agreement and that Sec. 41 (b) cannot be invoked from that stage. In the : AIR 1978 Ker. 223 case, the contractor moved for interim injunction restraining the respondent from altering or modifying the work he had already done. That was dismissed by the lower court and this court held that any orders contemplated by Sec. 41 (b) read with clauses 1 to 3 in the Second Schedule can be made only when there has been a reference of the dispute for arbitration. The Supreme Court had occasion to consider the exact scope and ambit of Sec 41 of the Arbitration Act. In : A.I.R. 1984 S.C. 29 (M/s.M.M.K. Ansari & Co. v. Union of India) it is held as follows: