IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 OP.No. 35538 of 2001(E) ----------------------------- PETITIONER(S): ------------------- G.MADANAN, PROPRIETOR,EMGEE PLASTICS, ALUMOODU POST, MAMPUZHA, (VIA)KOLLAM. BY SRI.N.DHARMADAN, SENIOR ADVOCATE ADV. SRI.BOBY GEORGE.V. RESPONDENT(S): -------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, DEPARTMENT OF LAW, UNION SECRETARIAT, NEW DELHI. 2. DEPUTY SUPERINTENDENT OF POLICE, KOLLAM. 3. REGIONAL TRANSPORT OFFICER, RTO OFFICE, KOLLAM. 4. M/S. MAHARASHTRA APPEX CORPORATION LTD.,MANIPAL, UDUPI DISTRICT,SYNDICATE HOUSE, MANIPAL - 576 119. 5. M/S. MAHARASHTRA APPEX CORPORATION LTD., BRANCH OFFICER, KOLLAM. 6. A.S.N.HEBBAR, ADVOCATE, KALPANA ANNEX, NEAR KALPANA TALKIES, UDUPI - 576 101 (ARBITRATOR). R1 BY ADVS. SMT.S.AMBIKA DEVI, ADDL.CGSC SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI SRI.V.V.JOSHI, ADDL.CGSC R4 & R5 BY ADVS.SRI.S.R.DAYANANDA PRABHU SRI.K.S.RAJESH SRI.S.R.DAYANANDA PRABHU THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P. NO. 35538/2001 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF HIRE PURCHASE AGREEMENT DATED 15/01/1997 EXECUTED BY PETITIONER AND RESPONDENTS 4 AND 5. P2: COPY OF INVOICE NO.EKM/TDV/CL/888/97 DATED 19/04/1997 SAKTHI AUTOMOBILIES TO PETITIONER. P3: COPY OF COMPLAINT DATED 23/04/1999 BY PETITIONER BEFORE THE 2ND RESPONDENT. P4: COPY OF DEMAND NOTICE NO.HO/HP/800662/10782/99-2000 DATED 28/02/2000 BY 4TH RESPONDENT. P5: COPY OF PLAINT O.S. NO.128/2000 DATED MARCH 2000 BY PETITIONER BEFORE THE SUBCOURT, KOLLAM (RELEVANT PORTION) P6: COPY OF PETITION IN O.S.128/2000 DATED 21/03/2000 BY PETITIONER BEFORE THE SUB COURT, KOLLAM. P6(a):COPY OF PETITION IN O.S.128/2000 DATED 28/03/2001 BY PETITIONER BEFORE THE SUB COURT, KOLLAM. P6(b):COPY OF OBJECTION IN O.S.128/2000 DATED 02/04/2001 BY RESPONDENTS 4 AND 5 BEFORE THE SUB COURT, KOLLAM. P7: COPY OF PETITION DATED 25/03/2000 BY PETITIONER BEFORE THE 2ND RESPONDENT. P8: COPY OF THE PETITION DATED 10/01/2001 BY PETITIONER BEFORE THE 3RD RESPONDENT. P9: COPY OF LETTER DATED 10/02/2001 BY PETITIONER TO THE 3RD RESPONDENT. P10: COPY OF THE PETITION DATED 01/03/2001 BY PETITIONER BEFORE THE 3RD RESPONDENT. P11: COPY OF THE NOTICE DATED 08/03/2001 BY 6TH RESPONDENT TO PETITIONER. P12: COPY OF THE LETTER DATED 27/03/2001 BY PETITIONER TO 6TH RESPONDENT. P13: COPY OF NOTICE DATED 18/04/2001 BY 6TH RESPONDENT TO PETITIONER. svs ...........2/-.... ...2... OP. NO.35538/2001 P14: COPY OF REPLY DATED 07/05/2001 BY PETITIONER TO 6TH RESPONDENT. P15: COPY OF ORDER DATED 21/07/2001 ALONG WITH NOTICE BY 6TH RESPONDENT. RESPONDENT'S EXHIBITS: R4(a):COPY OF RECEIPT DATED 22/01/1997 FOR RS.3,43,395/- ISSUED BY SAKTHI AUTOMOBILES, COCHIN TO THE 5TH RESPONDENT. R4(b):COPY OF DEED OF GUARANTEE DATED 28/07/1999 EXECUTED BY P. SUGUNAN IN FAVOUR OF THE 4TH RESPONDENT. R4(c):COPY OF VEHICLE INSPECTION REPORT DATED 25/03/2000 ISSUED BY JOSE K. THOMAS, SURVEYOR/LOSS ASSESSOR/VALUER, KOLLAM TO 4TH RESPONDENT. R4(d):COPY OF LETTER DATED 30/03/2000 ISSUE DBY 5TH RESPONDENT TO THE PETITIONER. R4(e):COPY OF NOTICE OF REFERENCE TO ARBITRATION DATED 09/11/2000 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. R4(f):COPY OF REFERENCE FOR ARBITRATION IN ARBITRATION NO.3/2000 DATED 20/12/2000 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE ARBITRATOR. R4(g):COPY OF I.A. NO.973/2000 IN O.S. NO.128/2001 DATED 30/03/2000 SUB COURT, KOLLAM. R4(h):COPY OF OBJECTION STATEMENT IN I.A. NO.877/2000 IN O.S. NO.128/2000, SUB COURT KOLLAM FILED BY 4TH RESPONDENT. R4(i):COPY OF OBJECTION STATEMENT DATED 02/04/2001 IN I.A. NO.1094/2001 IN O.S. NO.128/2000 SUB COURT, KOLLAM FILED BY THE 4TH RESPONDENT. R4(j):COPY OF HIRE PURCHASE AGREEMENT DATED 15/01/1997 EXECUTED BETWEEN PETITIONER AND RESPONDENT NO.4 AND 5. /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. -------------------------------------- O.P. No.35538 of 2001 -------------------------------------- Dated this the 24th day of October, 2011. JUDGMENT After hearing Adv. Shri N.Dharmadhan, learned Senior Advocate appearing for petitioner, Adv. Shri S.R.Dayanandha Prabhu, learned counsel for respondents 4 to 6 and the learned Government Pleader who represented respondents 2 and 3, the following questions are formulated for a decision: i. Whether the power of the High Court under Article 226 and/or 227 of the Constitution of India could be invoked against an order/award passed by a private Arbitrator and if so, under what circumstances? ii. Whether the agreement for arbitration is void or unenforceable as pleaded by petitioner? iii. Whether the appointment of sole Arbitrator is bad in law as it is not in compliance with Sec.34 of the Arbitration Act, 1940 (for short, “the Act of 1940”) or Sec.11(6) of the Arbitration and Conciliation Act, 1996 (for short, “the Act of 1996”)? iv. Whether there was any dispute referable to the Arbitrator so that he had the jurisdiction to pass a preliminary order/final award on the reference? To answer the above questions, it is necessary to refer to the facts of the case in detail: OP No.35538/2001 2 2. Petitioner purchased a Tata Sumo bearing registration No.KL-2 E/9007 on 19.04.1997 for `3,76,709/- on the strength of Ext.P1 (Ext.R4(j) – hereinafter referred as “Ext.R4(j)), hire purchase agreement executed between petitioner and the 4th respondent on 15.01.1997. According to the petitioner, he paid the installments upto 23.4.1999. While so, alleging default in payment of the installments the 5th respondent (which is a branch of the 4th respondent at Kollam) seized the vehicle on 23.04.1999. Petitioner filed Ext.P3, complaint dated 23.04.1999 before the 2nd respondent, the Deputy Superintendent of Police, Kollam alleging illegal seizure of the vehicle. It is the case of petitioner that the 2nd respondent mediated the dispute following which Ext.R4(b), agreement of guarantee was executed by one P.Sugathan, in favour of the 5th respondent on 28.07.1999. Pursuant to that agreement, the vehicle was released to the petitioner. The 4th respondent issued Ext.P4, demand notice dated 28.08.2000 to the petitioner, the guarantor under Ext.R4(j), hire purchase agreement and the guarantor under Ext.R4(b), agreement informing default in payment of installments from 15.02.1999 to 15.02.2000 and demanding payment of `1,97,886/- (as on the date of that notice) and regularisation of the account within seven days from the date of receipt of the notice failing which they were asked to surrender the vehicle as provided in Ext.R4(j), hire purchase agreement and failing which it was informed that legal action will be taken for recovery of the amount due. On receiving Ext.P4, notice petitioner filed O.S.No.128 of 2000 in the court of learned Sub Judge, Kollam against respondents 4 and 5 (Ext.P5 is OP No.35538/2001 3 the copy of plaint) on 21.03.2000 claiming that petitioner has already paid `3,04,036/-, the loan is required to be cleared only by 19.04.2002 as per the oral agreement reached before the 2nd respondent and that the demand made by respondents 4 and 5 (in the notice dated 28.02.2000) is not valid as the transaction is unfair. Petitioner claimed benefit of the Usurious Loans Act and alleged that the contract with the 4th respondent is hit by Sec.14 of the Indian Contract Act (for short, “the Contract Act”). Petitioner requested the learned Sub Judge to fix the liability of petitioner to the 4th respondent by re-opening the transaction, settlement of the account and prohibitory injunction restraining respondents 4 and 5 from taking forcible possession of the vehicle and recovering unreasonable amount as compensation, penalty or overdue charges. Petitioner filed Ext.P6, application supported by an affidavit for an order of temporary injunction against seizure of the vehicle. During pendency of that suit, on 25.03.2000 by respondents 4 and 5 seized the vehicle. The vehicle was sold on 16.06.2000 for `1,91,000/-. Petitioner filed Exts.P8 to P10, petitions before the 3rd respondent, the Regional Transport Officer, Kollam to prevent change of registration of the vehicle. Ext.P7, representation was given to the 2nd respondent intimating violation of Ext.R4(b), agreement executed by Shri P.Sugathan in favour of the 5th respondent. 3. While so, the 4th respondent, claiming to be invoking power under Ext.R4(j), hire purchase agreement referred the dispute to the sole Arbitrator (the 6th respondent) stationed at Uduppi for his award on the dispute. The Arbitrator OP No.35538/2001 4 (6th respondent) gave Ext.P11, notice dated 08.03.2001 requiring petitioner to submit his written statement on 07.04.2001. Petitioner filed Ext.P6(a), application before the learned Sub Judge, in O.S.No.128 of 2000 on 28.03.2001 praying that arbitration proceedings initiated against him be kept in abeyance till the disposal of the suit (no order was passed on that application). In the affidavit in support of Ext.P6(a), application petitioner stated that after filing of the suit, respondents 4 and 5 illegally seized the vehicle and fabricated some documents, the hire purchase agreement and arbitration clause are under challenge in the suit and that the Arbitrator (6th respondent) has posted the matter on 07.04.2001 asking petitioner to submit written statement. 4. Petitioner sent Ext.P12, reply dated 27.03.2001 to the 6th respondent in reply to his notices dated 09.01.2001 and 08.03.2001 (the suit was filed on 21.03.2000 and Ext.P6(a), application to keep in abeyance the arbitration proceedings was filed on 28.03.2001). In Ext.P12, petitioner claimed that the arbitration proceeding initiated is without the consent and knowledge of petitioner, the matter is pending in the civil court, that the hire purchase agreement itself is under challenge and hence proceedings initiated by the 6th respondent will not bind petitioner. The 6th respondent gave Ext.P13, notice dated 18.04.2001 to the petitioner. The 6th respondent informed petitioner that the arbitration proceeding is adjourned to 12.05.2001 at 11 a.m. to enable petitioner file his written statement (before the arbitrator) as the last chance. To that notice, petitioner gave Ext.14, reply dated 07.05.2001 requesting to keep OP No.35538/2001 5 the proceeding in abeyance until the suit is disposed of. To that, 6th respondent gave Ext.P15, reply dated 25.10.2001 stating that on the preliminary point (raised by petitioner as to the jurisdiction of the Arbitrator to proceed in the matter) an order has been passed by the 6th respondent on 21.07.2001. A true copy of the preliminary order dated 21.07.2001 (Ext.P15(2)) was appended to the said letter. In Ext.P15(2), preliminary order the 6th respondent stated that he was appointed as the sole Arbitrator as per agreement entered between petitioner and the 4th respondent, he has therefore jurisdiction to entertain the dispute, respondents 4 and 5 examined PW1 and proved Ext.P.P2, copy of hire purchase agreement (marked before the Arbitrator) and that Clause 22(a) of Ext.P2 (Ext.R4(j) in this proceeding) empowered the Arbitrator to proceed in the matter. 5. The Arbitrator continued with his proceeding in the absence of petitioner and came out with Ext.P17, award dated 02.03.2002 holding that petitioner is liable to pay `2,49,407/- with interest at the rate of 25% per annum from 09.11.2000. Petitioner was also made liable to pay cost of `2,551/-. That was followed by a notice (Ext.P18), for recovery of the amount under the provisions of the Revenue Recovery Act. 6. In the meantime, respondents 4 and 5 filed Ext.P6(b), objection to Ext.P6(a), application in O.S.No.128 of 2000 to keep the arbitration proceeding in abeyance, where they contended in paragraph 4 that the hire purchase OP No.35538/2001 6 agreement (Ext.R4(j)) contains arbitration clause which is in compliance with the provisions of the relevant law, respondents 4 and 5 have already initiated arbitration proceedings which is under way, it is lawful, and in view of the provisions of the Act of 1996 the civil court has no jurisdiction to interfere in the subject matter of arbitration. Respondents 4 and 5 filed Ext.R4(g), application - I.A.No.973 of 2000 under Sec.8(1) of the Act of 1996 in O.S.No.128 of 2000 requesting learned Sub Judge to stop proceeding (in the suit) and refer the parties to the arbitration (which had by then been initiated by appointing the 6th respondent as the Arbitrator). Along with Ext.R4(g), respondents 4 and 5 also produced the original of Ext.R4(j), hire purchase agreement. 7. Learned Sub Judge, Kollam posted the suit – O.S.No.128 of 2000 on 07.09.2004 for payment of balance court fee. Petitioner did not pay the balance court fee and thereon learned Sub Judge rejected the plaint on 15.09.2004. Though petitioner attempted to resurrect the suit by an application for its restoration by condoning the delay in requesting for restoration (Exts.P20 and P21), those applications were dismissed for default. Thus the challenge made by petitioner vide O.S.No.128 of 2000 came to an end by the rejection of plaint on 15.09.2004 and dismissal of the applications for restoration and for condonation of delay. 8. On 10.11.2001, petitioner filed this Original Petition under Article 226 of the Constitution of India. There, it is stated in paragraph 2 that petitioner purchased the vehicle above mentioned on hire purchase terms, hire purchase OP No.35538/2001 7 agreement was executed in Kerala on 15.01.1997 – a copy of which and the invoice are produced along with this Original Petition as Exts.P1 and P2, respectively. Petitioner contended that the hire purchase agreement is void since respondents 4 and 5 incorporated the arbitration clause under the Act of 1940 which had, by then been repealed and hence, the arbitration clause and proceeding based on that are illegal and void. It is also contended in paragraph 2 of the Original Petition that for the said reason the proceedings (for arbitration) cannot be continued under the Act of 1996. This Court had not granted any stay of arbitration proceedings. The Arbitrator (the 6th respondent) passed Ext.P17, award on 02.03.2002. After the Arbitrator passed that award, the Original Petition was amended by order dated 08.04.2002 on C.M.P.No.21162 of 2002 to incorporate a challenge to Ext.P17, award as well. Now that the plaint stands rejected by order dated 15.09.2004 and that has attained finality, among the reliefs prayed for in the Original Petition the following reliefs alone remain for consideration: i. To direct the 2nd respondent recover the vehicle from respondents 4 and 5 and restore it to the petitioner, ii. To declare that respondents 4 to 6 have no right to invoke Clause 22(a) of Ext.R4(j), agreement as the Act of 1940 is repealed and since Ext.R4(b), guarantee agreement was executed by P.Suguthan in favour of respondents 4 and 5 by which Ext.R4(j), agreement stands superseded. iii. To quash Ext.P17, award and all subsequent proceedings initiated pursuant to that. OP No.35538/2001 8 9. This Court by order dated 02.12.2003 on I.A.No.15142 of 2003 filed on 26.11.2003 has stayed execution of the award dated 22.03.2002. Now I shall consider the questions formulated for a decision. 10. Points I to III: It is contended by the learned Senior Advocate appearing for petitioner that reference of the dispute to the Arbitrator is made on the strength of Clause 22(a) of Ext.R4(j), hire purchase agreement which provides for reference to the Arbitrator under the Act of 1940 which stands repealed by Sec.85(1) of the Act of 1996, the agreement was entered into at a time when the Act of 1940 was not in force and hence the agreement to refer the dispute to the Arbitrator under the Act of 1940 is ex facie illegal, void and unsustainable. It is contended that in so far as Ext.R4(j) was executed on 15.01.1997 and the Act of 1996 having come into force with effect from 25.01.1996, since no arbitration proceedings had commenced before the Act of 1996 came into force on the said day, any proceeding initiated by the 6th respondent under the Act of 1996 is without jurisdiction and hence, the preliminary order (Ext.P15) and the final award (Ext.P17) passed by the 6th respondent are void and unenforceable. It is also contended by learned Senior Advocate that at any rate, when Clause 22(a) was incorporated in Ext.R4(j), hire purchase agreement whereby the parties on 15.01.1997 agreed to refer the dispute under the Act of 1940 which had by then been repealed, both the parties were under a common mistake of fact as to existence of the law then in force governing arbitration and hence, that common mistake would render Clause 22(a) of Ext.R4(j) void in view of Sec.20 of the OP No.35538/2001 9 Contract Act. Further argument which learned Senior Advocate has advanced is as to the non-enforceability and invalidity of Clause 22(a) of Ext.R4(j), hire purchase agreement in that Ext.R4(j), agreement no more survives and could not also, as it is superseded by Ext.R4(b), deed of guarantee executed by P.Sugathan in favour of the 4th respondent on 28.07.1999. In view of Ext.R4(b), the rights and liabilities of parties are to be governed and controlled by Ext.R4(b) (agreement dated 28.07.1999) and not by Ext.R4(j), agreement dated 15.01.1997. Therefore, in so far as Ext.R4(j) dated 15.01.1997 stands superseded by Ext.R4(b), agreement dated 28.07.1999, respondents 4 and 5 were not entitled to refer the dispute to the Arbitrator; nor was the Arbitrator (6th respondent) competent to enter on a reference on the strength of Clause 22(a) of Ext.R4(j), agreement. Learned Senior Advocate contended that at any rate, the appointment of Arbitrator is invalid since at the time the Arbitrator was appointed, O.S.No.128 of 2000 was pending and hence, without reference to the Court in accordance with Sec.34 of the Act of 1940 or, Sec.11(6) of the Act of 1996, respondents 4 and 5 could not have appointed the Arbitrator. Learned Senior Advocate has referred to me to various decisions in support of the contentions which I will refer to a bit later, after referring to the reply argument advanced by the learned counsel for respondents 4 to 6. 11. It is contended by the learned counsel for respondents 4 to 6 that the challenge to Exts.P15 and P17, preliminary finding and award passed by the Arbitrator in a proceeding under Article 226 or 227 of the Constitution of India cannot stand. According to the learned counsel under Sec.16 of the Act of OP No.35538/2001 10 1996, it is within the power of the Arbitrator to decide on the arbitrability of the dispute or his jurisdiction to enter on arbitration and the decision which the Arbitrator might enter under Sec.16 of the Act of 1996 is subject to an appeal under Sec.37 of the Act of 1996. It is contended that so far as Ext.P17, award is concerned, it is open to the petitioner to challenge the same under Sec.34 of Act of 1996 even raising the question of jurisdiction or arbitrability as above stated. Therefore, none of the contentions which petitioner has raised in this Original Petition are required to be decided by this Court by way of judicial review under Article 227 or even under Article 226 of the Constitution. It is contended by learned counsel that by Ext.R4(g), respondents 4 and 5 had given information to the petitioner as to the dispute having been referred to the Arbitrator and hence petitioner could not plead ignorance about the same. Various communications between the Arbitrator and petitioner produced by petitioner would show that even at the earliest point of time the Arbitrator had given notice to the petitioner about his entering into arbitration. In that situation it cannot be contended that proceedings are initiated behind the back of petitioner or that he had no sufficient opportunity to contest the proceedings before the Arbitrator. In such a situation Exts.P15 and P17, preliminary finding and award are not liable to be challenged in this Court either under Article 226 or 227 of the Constitution, it is argued. 12. Learned counsel for respondents 4 to 6 further argued that Clause (Clause 22(a)) for arbitration in Ext.R4(j) is couched in such a manner that though there is reference to the Act of 1940, it is clear from the relevant Clause OP No.35538/2001 11 that parties agreed to refer the disputes arising between them to the Arbitrator in accordance with the law in force on the date of Ext.R4(j) (executed on 15.01.1997) ie. the Act of 1996. According to the learned counsel when the parties provided in Clause 22(a) that the dispute between them shall be referred to arbitration under the Act of 1940 or the said Act as amended by law, what they intended is the Act of 1996 which amended, consolidated and codified the law relating to domestic arbitration earlier governed by the Act of 1940 and the International Law on Arbitration. Learned counsel has referred me to the preamble of the Act of 1996 to point out the object of enacting the said Act. It is contended by the learned counsel that the preamble to a Statute is a key to understand the relevant provisions in it. It is contended that there was nothing illegal or wrong in the parties agreeing to refer the dispute arising among them in accordance with the law of arbitration in force on the date of the agreement, Ext.R4(j) dated 15.01.1997. Hence, the contention that arbitration was agreed to be based on the Act of 1940, it was repealed by the time Ext.R4(j), hire purchase agreement was executed and hence the agreement is void, cannot stand. It is contended that in that view of the matter,no question of common mistake as to any fact in existence on the date of agreement (Ext.R4(j) – dated 15.01.1997) arose. It is argued that Ext.R4(b) cannot supersede or override the terms and conditions of Ext.R4(j), agreement since the former was only an additional security obtained by respondents 4 and 5 at the time of release of the vehicle to the petitioner. Obtaining such additional security is permitted even as per Ext.R4(j), agreement. OP No.35538/2001 12 13. In response to the contention learned Senior Advocate has advanced as to legality of appointment of the Arbitrator without reference to the court when O.S.No.128 of 2000 was pending and without recourse to Sec.11(6) of the Act of 1996, learned counsel contended that by virtue of Sec.8(3) of Act of 1996, permission of the court is not required even when the suit was pending, either to initiate the arbitration proceeding or, if it was already initiated, to continue with the said proceeding. It is contended that Sec.11(6) of Act of 1996 has no application since Clause 22(a) of Ext.R4(j) provided for a named sole Arbitrator and that being the agreement of parties, it was not necessary to get an Arbitrator appointed as provided under Sec.11(6) of the Act of 1996. 14. I shall refer to the question whether this proceeding under Article 226 or, assuming it to be under Article 227 of the Constitution is maintainable in challenge of Exts.P15 and P17, preliminary finding and the award passed by the Arbitrator. Learned counsel for respondents 4 to 6 has placed reliance on the decisions in Tata Finance Ltd. v. Ajaya Kumar Biswal and others ((2000) 9 SCC 238) and SBP & Co. v. Patel Engineering Ltd. and another ((2005) 8 SCC 618) to contend that when statutory remedies are available to the petitioner under Sec.9 of the Act of 1996 concerning seizure of the vehicle which according to the petitioner is illegal, against the preliminary finding (Ext.P15) entered by the Arbitrator as to his authority to enter into arbitration under Sec.37 of Act of 1996 and, against the OP No.35538/2001 13 award (Ext.P17) under Sec.34 of Act of 1996, it is not open to this Court to interfere under Article 226 and/or Article 227 of the Constitution. Learned Senior Advocate in response has relied on the decisions in The State of Uttar Pradesh v. Seth Jagamander Das and others (AIR 1954 C 683), Moolchand Kevalchand Daga v. Kissindoss Girdhardoss (AIR 1962 Madras 52), Ram Sahai v. Babu Lal (AIR 1965 Allahabad 217), Parameswaran Pillai v. Kudamaloor Regional Service Co-operative Society (1967 KLT 19 (paragraph 10)), P.Narayanan Nair v. E.Achuthan Nair and another (1973 KLT 299), Union of India v. P.M.Paul and another (AIR 1985 Kerala 206), State of Kerala v. Babu (2003 (2) KLT 526), Travancore Devaswom Board v. Panchami Pack Pvt. Ltd. (ILR 2005 (1) Kerala 134) and SBP & Co. v. Patel Engineering Ltd. and another (AIR 2006 SC 450 (corresponding to (2005) 8 SCC 618). I shall advert to the above decisions. 15. In Tata Finance Ltd. v. Ajaya Kumar Biswal and others (supra), maintainability of proceeding when alternative remedy is available is considered. There, during the pendency of arbitration proceeding, respondent filed petitions before the High Court in challenge of seizure of vehicle. The High Court directed that on payment of a certain amount, the vehicle shall be OP No.35538/2001 14 released and that the party shall be