M.ASHRAF Vs. KASIM.V.K

JUDGEMENT

(1.) Is an application under Section 9(1)(ii) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act'), seeking an interim measure of protection, maintainable before the Court, after passing of the award by the Arbitral Tribunal but before it is enforced, in view of the provision contained in Section 9(3) of the Act? This question essentially falls for consideration in this appeal.

(2.) The facts of the case are not very much relevant here. Suffice it to state that, on reference of the dispute between the appellant and the respondent over dissolution of a partnership firm, an award was passed by the Arbitrator in favour of the Arb.Appeal No.53/2018 appellant. Before initiating steps for enforcement of the award, the appellant filed an application under Section 9(1)(ii) of the Act before the District Court, seeking an order of injunction restraining the respondent from alienating or encumbering five items of properties. The appellant alleged that the respondent was taking expeditious steps for alienation of the properties with a view to evade payment of money awarded to the appellant.

(3.) When the application came up for consideration before it, the District Court suo motu raised a question regarding the maintainability of it before the Court. Learned District Judge found that the appellant has got efficacious remedy under Section 17 of the Act and therefore, the application filed before it under Section 9(1)(ii) of the Act is not maintainable in view of the bar contained in Section 9(3) of the Act. Learned District Judge also found that as the appellant has got equally efficacious remedy under Section 17 of the Act, the relief of injunction sought by him is barred under Section 41(h) of the Specific Relief Act, 1963. Learned District Judge further found that there is also bar under Section 38 (3) (b) and (c) of the Specific Relief Act in Arb.Appeal No.53/2018 granting injunction since the amount due is quantified as per the award. The District Court rejected the application filed by the appellant holding that it is not maintainable before the Court.