GH AHMAD WANI Vs. STATE

JUDGEMENT

(1.) THE petitioner, Ghulam Ahmed Wani, has filed application under sec 20 of the Arbitration Act for referring the matter in dispute which, according to him, is the interest charged by the department illegally, to an arbitrator. Alongwith the petition, he filed the present application for staying the recovery of interest amounting to Rs. 03, 71,383,00 till the disposal of the petition. This court issued notices in the application and in the meanwhile ordered not to recover interest from the petitioner. The respondents have filed objections to the application of stay thereby resisting the prayer of the petitioner.

(2.) I have heard learned counsel for the parties at length. The provision for the grant of injunction is prescribed in Sec. 41 of the Arbitration Act which reads as under: - " 41. Procedure and powers of Court. Subject to the provisions of this Act and of rules made thereunder - - - (a) The provisions of the Code of Civil Procedure (X of 1977), shall apply to all proceedings before the court and to all appeals, under this Act, and (b) the court shall have, for the purpose of, and in relation to , arbitration proceedings, the same power of making orders in respect of any of the matters set out in due Second Schedule as it has for the purpose of, and in relation to, any proceedings before the court; Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters." By an emended Act No: VIII of 1977, in Sec. 41 of the principal Act for clause (a) the following clause was substituted: - " (a) the provisions of the Code of Civil procedure (X of 1977) shall apply to all proceedings before the court and to all appeals, under this Act, except that the provisions of rules 1 to 5 of order AXXIX and section 151 in so far as it relates to issuance of interim orders by way of unjunction, stay or in any other manner whatsoever, shall not apply to proceedings, before the Court, in which arrears due to the Government are involved."

(3.) UNDOUBTEDLY , Order XXXIX rule 1 to 5 and Section 151 of the Code of Civil Procedure, contain mode and circumstances under which temporary injunction can be granted. The above referred Clause (a) of Section 41 of the Arbitration Act takes away the jurisdiction of the Court to grant any injunction or stay in proceedings in which arrears due to the government are involved Learned counsel appearing for the petitioner referred to clause (b) of this section which, according to him, authorities the court to grant injunction as contained in Second Schedule and it overrides the provision contained in Clause a). I think the learned counsel for the petitioner is not correct in his contention. Both the clauses (a) & (b) of Sec. 41 of the Arbitration Act are to be read conjunctly and these provisions cannot overlap each other. No doubt, clause (b) of Sec. 41 of the abovesaid Act empowers the court to grant interim injunction in the arbitration proceedings as referred to in the Second Schedule of the said Act but the power of the Court to some extent have been curtailed by the amended clause (a). In the instant case, the matter in dispute is the recovery of interest which is arrear due to the government. The Court under the amended provision has no power to grant injunction or stay in such matter.