IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 18128 of 2008 M/s Panna Lal Kanhaiya Lal Bansal, a Proprietary Concern having its Head Office situated at AK-97, PO & PS - Shalimar Bagh, Delhi - 110 088 through its Proprietor, Kanhiya Lal Bansal, S/o late Panna Lal Bansal, Resident of AK-97, PO & PS - Shalimar Bagh, Dist - Delhi - 110 088 - Petitioner Versus 1 The East Central Railway having its Zonal Office situated at Hajipur, Dist - Vaishali through General Manager 2 The Chief Administrative Officer (Construction Organization) East Central Railway (Construction Organization) having its Office at Mahendru Ghat, Patna 3 The Chief Engineer (Construction/Headquarters), East Central Railway, Mahendru Ghat, Patna 4 The Deputy Chief Engineer (Construction/Track Supply), East Central Railway, Mahendru Ghat, Patna - Respondents ----------- 3 23.01.2009 With consent of parties, the writ petition is being disposed of at this stage itself. The petitioner was to supply certain articles to the railways which led to some dispute inter party. Petitioner came to this Court in CWJC No 3909 of 2008. On objection being taken by the railways that the facts were being disputed, the matter ought to be settled by arbitration as provided in the agreement inter party, this Court declined to interfere and let the parties to take steps to initiate arbitral proceedings. Prayer for interim protection was also declined by the final order dated 30th September, 2008 on the ground that under the provisions of the Arbitration and Conciliation Act 1996, the arbitrator was now vested with power to grant interim relief as well. After this Court passed the said order, the petitioner gave notice of arbitration as contemplated under the agreement. There was no response from the railways and consequently arbitral proceedings were not initiated. Railways, inspite of notice of all the aforesaid facts, then started raising 2 claims against the petitioner. Monetary demands were made and were threatened to be realized from the petitioner which brought the petitioner not only to this Court by filing the present writ petition but also filing an application in terms of Section 11 (6) of the Arbitration and Conciliation Act, 1996 being Request Case No 42 of 2008 for appointment of arbitrator by this Court. In the present writ application, in substance, what is sought for is an interim protection till arbitral proceedings are taken up because even though the Request case was filed, it was taking time for being taken up and even when it was being taken up, the notices permitting arbitral proceedings have yet to be served on the Arbitrator appointed by the Court and in the meantime, railways is trying to precipitate the matter even though they have full knowledge of the facts aforesaid without giving a chance to the petitioner to seek protection from the arbitrator. Mr N K Agrawal, learned Senior Counsel appearing for railways submits that it is open to the petitioner to move application for interim protection in terms of Section 17 of the Act before the Arbitrator instead of moving this Court. I am afraid this objection cannot be entertained for the simple reason that the protection sought for is for the interregnum before the Arbitrator take up the matter of interim protection. Mr Agrawal further submits that in terms of Section 9 read with Section 21 of the Arbitration and Conciliation Act, the petitioner should have approached the Principal Civil Court for an injunction pending arbitral proceedings. All I can say that the learned Senior Counsel may be correct but as rightly pointed by Mr R B Mahto, 3 learned Senior Counsel for the petitioner, railway is a State instrumentality and must act fairly and not in an arbitrary manner. Once objection of railway to the writ petition was entertained by this Court forcing petitioner to arbitral proceedings and petitioner gave notice of arbitral proceedings, railway ought to have accepted the same and proceeded with the proceedings rather than avoid those proceedings and try and precipitate the matter in between. To this Court, such an action of railway is not just nor fair. Heavens would not have fallen if railways have agreed to the proceedings as made in the Request Case and held back its action for a few days till the matter of interim relief is decided by the Arbitrator. In such view of the matter, I am left with no option but to direct that railways would not press its monetary demands as against the petitioner till the application for interim relief is not disposed of by the Arbitrator so appointed by this Court. This is, however, subject to the petitioner taking effective steps in the matter expeditiously and not delaying the matter to take undue advantage of the order of this Court. If the railway feels that the proceedings are being unduly delayed by the petitioner, it would be open to the railway to move the Arbitrator to vacate the protection so granted by this Court and the Arbitrator would be competent to do so. With these directions and observations, the writ petition itself stands disposed of. Grant of interim relief by this Court is under the special circumstances, as indicated above, and the Arbitrator would be obliged 4 to apply his own independent mind so far as interim relief is concerned and let it be clarified that I have not adjudicated on merits of the issues on any matter. M.E.H./ (Navaniti Prasad Singh)