SIRAJUDHEEN Vs. SREEDHAR K KOTTARAM

JUDGEMENT

(1.) The respondent herein filed O.P.(Arb) No. 48 of 2009 before the District Court, Allappuzha, for an interim order of attachment of the properties scheduled to the petition. There is a contract between the parties for construction of a Star Hotel, and towards the same, an amount of Rs. 51 lakhs is said to have been paid by the respondent herein to the appellant. It is the contention of the respondent that the appellant did not perform his part of the contract. Therefore, he proceeded to initiate arbitration proceedings for realisation of the said amount of Rs. 51 lakhs from the appellant, and alleging that hasty steps are taken by the appellant to alienate the property and to secure the claim, the respondent sought for an interim order of attachment and approached the District Court. Along with the main Original Petition, I. A. No. 634 of 2009, was also filed for ad-interim attachment. The court below ordered interim attachment of the petition scheduled properties. Thereafter, the appellant filed objection stating that the amount received by him has already been spent for construction and also denying other averments made in the petition. It was also stated that he had no intention to alienate the property. The encumbrance certificate in respect of the properties in Kayamkulam Village along with the title deeds, and other documents to prove his possession were produced and he sought for lifting the attachment. It was the appellant's contention that the property offered as security will fetch more than Rs. 51 lakhs.

(2.) The learned Counsel appearing for the respondent, on the other hand, contended that the Court has no jurisdiction to lift the attachment, as it is not one issued under Order XXXVIII Rule 5 of Code of Civil Procedure. The question of lifting of attachment by furnishing security can be raised only if it is a conditional attachment. There is no provision in the Arbitration Act for such a procedure. They also disputed the value of the property offered as security. The court below, without going into the merits of the contention as to whether the property now offered as security is sufficient to secure the claim of the respondent, dismissed the petition seeking to lift the attachment, I. A. No. 728 of 2009, on the sole ground that the lifting of attachment involves review of the order, in the absence of any specific provision enabling the court to review the order earlier passed, and placing reliance on the decision of this Court in Sanjay Gupta v. Kerala State Industrial Development Corporation Ltd.,2009 4 KerLT 147, dismissed the petition. Hence, this appeal.

(3.) Sanjay Gupta's case, stated above, on which reliance was placed by the court below, was a case where a petition was filed before this Court seeking review of an order issued by the nominee of the Chief Justice, in exercise of the power under Section 11 of the Arbitration and Conciliation Act, 1996. Taking the view that the Act being a comprehensive one and not one which confers power on the High Court to pass any order under Section 11, the request was not granted, since the power exercised under Section 11 as a nominee is a statutory power and unless the power of review is expressly conferred, general power of review that may be available to the High Court under other jurisdiction cannot be extended to review the order issued by the Chief Justice. So holding, the review application was dismissed.