ENTERTAINMENT AND DEVELOPERS Vs. CARNIVAL FILMS ENTERTAINMENT PVT

JUDGEMENT

(1.) - The instant appeal under Sec. 37 of the Arbitration and Conciliation Act, 1996 (hereinafter shall be referred as 'Act') has been preferred by the appellant being aggrieved by the impugned order dtd. 19/1/2023 passed by the learned Commercial Court, Indore in Case No. MJC AV No. 98/2022, whereby the application of respondent filed under Sec. 9 of the Act was partially allowed and the appellant was restrained from alienating rights in respect of Cinema/multiplex (disputed premises), pending the commencement of and during the arbitration proceeding and making of the final award therein and enforcement thereof.

(2.) The facts in nutshell are, that the respondent is involved in the operation and management of multiplexes under the brand name 'Kulraj Broadway Cinemas' whereas the appellant is a company involved in the business of Real Estate Development and is the owner of Cineplex in Malhar Mall at Indore. The appellant (in capacity of the lessor) and the Company HDIL Entertainment Pvt. Ltd ( in capacity of the lessee) had entered into an agreement dtd. 28/7/2011 for leasing out the premises situated at 2nd 3rd and 4th Floor at Malhar Mall, Indore.

(3.) That in year 2020, some disagreements between the parties led to the disputes between them, which led to the commencement of multiple litigation between the parties. On 9/11/2022, appellant along with the personal guards entered in the leased out premises of the respondent and illegally locked the premises and refused the access of the cinema for the representative of the respondent. Against the said act, the respondent had filed a criminal complaint for illegally trespassing the property and obstructing the access in cinema hall. Due to the said act the respondent on 3/12/2022 sent a letter to the appellant for appointing arbitrator to settle their dispute. The appellant in his reply dtd. 19/12/2022 has stated that as per possession document dtd. 9/5/2022, it is settled that all disputes between both the parties shall be resolved by sole arbitrator Mr. (Arpit Oswal) and by the same reply the respondent also corresponded with the arbitrator to resolve their dispute. The sole arbitrator upon the appellant's reply dtd. 19/12/2022 issued notice dtd. 28/12/2022 informing the respondent that on the basis of possession document dtd. 9/5/2022, the arbitral proceedings shall commence w.e.f. 3/1/2023. However, the respondent disputed the appointment of arbitrator by challenging such proceedings before this Court.