SHIVRAJ SINGH Vs. TALWANDI SABO POWER LTD.

JUDGEMENT

(1.) THE appeal is against the order passed by the court below in a petition under Section 9 of the Arbitration and Conciliation Act, vacating the interim order already passed. The interim order was a restraint against further assignment of the work and for preservation of the work at the site in the manner that it was at the time of cancellation of the contract. Along with the main petition, there was a prayer for appointment of a Local Commissioner to inspect the properties, measure the work completed and for taking inventory of the work done, stock and the machinery which were lying at the work site. The court passed an order on 1.3.2013 staying further work to be undertaken by any other third party and passed a subsequent order on 10.4.2013 to have the work measured with the help of SDO (PWD), Mansa as the Local Commissioner. After this order, the court has passed the impugned order vacating the interim stay granted. The grievance expressed by the appellant is that after vacating the order that was already passed on 1.3.2013 the court has literally annulled its order passed on 10.4.2013 appointing a Local Commissioner and for preparation of a report after inspection. Learned Senior Counsel appearing for the appellant would argue that when the order was passed on 10.4.2013, the court was literally disposing of section 9 petition substantially and there was nothing more to be done than taking the report on file and that would have concluded the issue for preservation of property and would have allowed the parties to move ahead for resolution of the dispute through an arbitral process.

(2.) LEARNED Senior Counsel appearing for the respondent would contend that for all the works done already, the appellant has already submitted its bill which gives an exact idea of the actual work done and when it was pointed out before the court that the work could not be stopped and the appellant has actually abandoned the site without completing the work assigned, the court was justified in vacating the order and if its effect was that the Local Commissioner was not any longer required to be assessing the work, it was a natural consequence to the imperative for vacating the an interim order passed on 1.3.2013. Learned Senior Counsel appearing for the respondent also states that the value of the work was over 20 crores and it involved some developmental works to take place and they were all hampered by the interim order already passed and, therefore, when they moved an application for vacating the stay, the court passed the impugned order on consideration of all the relevant facts. He brings it to my attention that the Local Commissioner appointed by court below gave a report that he himself was not sufficiently equipped to give report on the work already completed or to carry out the measurements and in the existing situation when the order already passed could not be properly given effect by the inability of the Commissioner, and that only some other qualified person from the Irrigation Department could alone complete the job, the court could not have allowed for the continuation of the interim injunction to operate.

(3.) THERE are claims and counter -claims made by the respective parties about the quantum of work completed and it cannot be now decided as to who has larger claim to sustain against other and whether the machinery and the other equipments alleged to be at the work site could be ordered to be removed for the benefit of the petitioner or not. There is even a dispute of what really constitute the movable assets at the site and there is a substantial variance in the list given by the appellant and the list given by the respondent.