Goel Associates v. Jivan Bima Rashtriya Avas Samati Ltd

Vijender Jain, J.

1. Aggrieved by the order passed by learned Single Judge this appeal has been preferred by the appellant. The appellant is an architect engaged by the respondents society. Pursuant to some dispute between the parties, which is subject matter of arbitration, an application under Section 9 of the Arbitration and Conciliation Act was filed for interim orders for attachment. Earlier an interim order attaching the property of society was passed which was vacated after hearing the parties by the impugned order.

2. Mr. Munjal, learned Counsel for the appellant has relied upon a judgment of the learned Single Judge titled as Rite Approach Group Ltd. v. M/S. Rosoboronexport, 111 (2004) DLT 816 [LQ/DelHC/2004/579] and another judgment of learned Single Judge of the Bombay High Court in Delta Construction Systems Ltd., Hyderabad v. Narmada Cement Company Ltd., Mumbai, 2002 (2) Arb. LR 47 (Bombay) and on the basis of above said authorities, it was contended that the power to grant interim relief cannot be controlled or restricted by invoking the provisions of Order 38 Rule 5 of the Code of Civil Procedure. To our mind, there cannot be any dispute to the proposition of law as enunciated by the learned Single Judge of Bombay High Court and this Court. We have carefully analysed the judgment of the learned Single Judge which is impugned before us. What has been stated in the judgment is that in the given circumstances, the relief of attachment cannot be granted. No doubt that the provisions like Order 38 Rule 5, Code of Civil Procedure are not contained in the Arbitration and Conciliation Act but its principles are to be applicable as such. However, one cannot loose sight of that the provisions of Code of Civil Procedure would be the guiding principles as has been held by Supreme Court in ITI Ltd. v. Siemens Public Communications Network Ltd., IV (2002) SLT 137=2002 (5) SCC 510 [LQ/SC/2002/647 ;] ">2002 (5) SCC 510 [LQ/SC/2002/647 ;] [LQ/SC/2002/647 ;] . It was held that for want of specific exclusion of Code of Civil Procedure in the of 1996, if cannot be inferred that Code was not applicable but that would mean that the provisions of Code have to be read into as it is when the Court exercises its powers as prescribed in the of 1996. The procedural aspect provided in the Code about which the of 1996 is silent, needless to say, when the Court exercises its substantive power under the of 1996 shall be applicable but the guiding factor for exercise of power by the Court under Section 9(ii)(b) has to be whether such order deserves to be passed for justice to the cause. The learned Single Judge has relied upon the provisions of Order 38 Rule 5 Code of Civil Procedure to exercise his discretion for the purposes of exercising power under Section 9(ii)(b) as to whether that was a fit case for grant of an Order of attachment or not. Therefore, it cant be said that the impugned order suffers from infirmity merely because the learned Single Judge has stated in one sentence that the provisions of Order 38 of the Code of Civil Procedure must be kept in view while disposing of such application.3. We do not find any infirmity with the order passed by the learned Single Judge. There is no merit in this appeal.

Dismissed.