SITA RAM Vs. DISTRICT ABHIYANTA DURSANCHAR RAIPUR

JUDGEMENT

(1.) THE appellant filed an application under Section 20 read with Section 46 of the Arbitration Act, 1940 (hereinafter called the Act) for directions to the respondents to file the arbitration's agreement in Court and to make an order of reference. During the pendency of the proceedings, the appellant also moved an application under Section 41 read with Schedule II of the Act for injunction. THE trial Court after considering the application, granted an ex parte ad interim injunction restraining the respondents from disconnecting the appellant's telephone connection till 20/08/1990 for non-payment of the telephone bills. This order was passed on 31-7-1990.

(2.) ON 22-8-1990, the telephone connection of the appellant was disconnected by the respondents and, therefore, the appellant moved two applications for taking appropriate steps for breach of injunction order issued by the trial Court on 31-7-1990 and another application for direction to the respondents to restore the telephone of the appellant. These applications were considered by the trial Court in the light of the previous orders issued by the Court granting ad interim injunction on 31-7-1990 and the trial Court held that the application moved by the appellant under Section 41 of the Act read with Schedule II for injunction is a suit by virtue of Section 41(a) of the Act and, therefore, provisions of the Civil P.C. are attracted and in the absence of a notice under Section 80 of the Civil P.C., the application for injunction was not maintainable nor ex parte injunction order could have been issued by the Court on 31-7-1990. Further, the trial Court was of the opinion that had it been an application under Section 20 of the Act alone, it could have been held to be maintainable and that service of notice under Section 80 of the C.P.C. is mandatory for an application under Section 41 read with Schedule II of the Act; in the absence of notice under Section 80 C.P.C. the application under Section 41 read with Schedule II of the Act is not maintainable and no injunction orders could have been issued by the Court; there is no question of breach of injunction order; nor any order for restoration of the telephone connection could be passed and consequently dismissed the applications filed by the appellant. It was (sic) further directed the appellant to service a notice under Section 80 of the C.P.C. on the respondents and then revive his applications for injunctions.

(3.) IN the present case, the appellant had moved an application under Section 20 of the Act for filing the arbitration agreement in Court and the matter which is pending in the Court is that of under S. 20 of the Act and in this pending proceeding the appellant has moved an application for injunction under S. 41 read with Schedule II of the Act. The application for injunction moved by the appellant was not a separate proceeding but it was an application moved in a pending proceeding under the Arbitration Act. If proceedings under S. 20 of the Act are maintainable without giving a notice under S. 80, C.P.C., then there is no reason why an application moved under S. 41 read with Second Schedule of the Act in a pending proceeding is not maintainable without giving a notice under S. 80 of the C.P.C.