18 May 2020


Judgments

High Court of Jammu and Kashmir

Naseem Kar Vs. Sonamarg Development Authority

MANU/JK/1196/2018

14.12.2018

Arbitration

Court which has to be approached for grant of the assistance cannot decide the merits of the case or rights of the parties under Section 9 of Arbitration Act

Instant petition has been filed by the Petitioner under Section 9 of the J & K Arbitration and Conciliation Act, 1997 for directing the maintenance of status quo with regard to Island Retreat Park Cafeteria and Kiosks at Srinagar. Issue raised in instant case is for grant of interim assistance.

It emanates from license deed brought on record that, the licensor hereby authorized the licensees to hold the said premises for term of 5 years which had to commence from the 08-01-2013 with option of renewal (exercisable by the licensor) for any further period exceeding 5 years on enhanced rent as may be determined by the licensor. Clause 19 of the said deed states that, in case of any dispute between the parties hereto the same shall be referred for Arbitration of Administrative Secretary in charge Tourism and Culture Department, Government of J & K whose decision shall be final and binding upon the parties. The proceedings of the arbitration shall be conducted under the provisions of the Act and rules framed thereunder. The venue of Arbitration shall be at Jammu/Srinagar, depending upon the locale of the assets.

The Petitioner herein admittedly has used the premises in light of the contract entered into between the parties up to November 2017 and thereafter same has been extended for one season with 10% escalation against the bid amount. The concerned authority at the time of the accord of sanction for extension has made reference to the notice issued for deposition of the amount of Rs. 3.09 lacs which was outstanding against the oetitioner. The huge investment made earlier has been also given a thought at the time when the extension was granted. Notice for making reference of the dispute which according to the Petitioner has been made on 20th July, 2018 has been replied with assertion in communication that, the doors are open for healthy discussion.

Section 9 of the Act empowers District court and High Court to make appropriate orders for preservation of the property or have other interim measures till the matter is settled by the arbitral Tribunal before which the proceedings are contemplated to be initiated. It is no more res integra that for grant of interim assistance, same principles which govern the grant of interim assistance in supplemental proceedings before a civil court in terms of Order 39 of Code of Civil Procedure, 1908 (CPC) or under the provision of Specific Relief Act applies. The Court which has to be approached for grant of the assistance cannot decide the merits of the case or rights of the parties under Section 9 of the Act as it has to consider only the question of existence of the arbitration clause necessitating of taking immediate measures for issuance of the direction for protecting the lis.

The contract between the Petitioner and the Respondent herein on 8th August, 2013 has come to an end by efflux of time. The measures to be taken as interim assistance in the facts and circumstances are sought by the Petitioner by the maintenance of the status quo i.e., to allow the Petitioner to use the property till the arbitral Tribunal gives its findings over the dispute stated to be crept in between the parties and required to be settled. Notice of the fact needs to be taken that the contract entered into between the parties was determinable in nature and having regard to the provisions of the Specific Relief Act, its specific performance could not be insisted upon as it is to be concluded under relevant provision of the Specific Relief Act that in such case of contract, the compensation is adequate remedy. The injunction cannot be granted either in preventive or mandatory form and the compensation is a proper remedy under the relevant law.

The contention raised that similarly situated person were given different treatment too would not impel the Court to grant assistance sought, in proceedings, when the Petitioner has invoked the jurisdiction for enforcement of a private law remedy. Furthermore as the grant of assistance would result in reviving a contract which has already come to an end same cannot be said to be within the scope of Section 9 of the Act. No case has been made out for grant of interim assistance. Petition dismissed.

Tags : Status quo Maintenance Grant

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