IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 Arb.A.No. 27 of 2011() --------------------------------- O.P(ARB)NO. .442/2011 of DISTRICT COURT & SESSIONS COURT, ERNAKULAM .................... APPELLANT/PETITIONER ---------------------------------------- BOARD OF TRUSTEES PORT OF COCHIN, A MAJOR PORT CONSTITUTED UNDER THE MAJOR PORT TRUST ACT HAVING ITS OFFICE AT WILLINGTON ISLAND, COCHIN-9, REPRESENTED BY ITS CHAIRMAN SRI.PAUL ANTONY. BY ADVS. SRI.E.K.NANDAKUMAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH MENON RESPONDENT(S): RESPONDENT/ADDL. 2ND RESPONDENT --------------------------------------------------------------------------------------- 1. JAISU SHIPPING COMPANY PRIVATE LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956 HAVING ITS REGISTERED OFFICE AT KEWAL REMANY HOUSE, DINSHAW BUILDING ROAD, NEAR CUSTOM HOUSE, KANDLA PORT, GUJARAT-370220 AND BRANCH OFFICE AT LINK HORIZON, MARINE DRIVE, ERNAKULAM. 2. CLASHMORE HOLDINGS LTD., 3RD FLOOR, MEADOWS HOUSE, QUEEN STREET, LONDON W 1J 5 P R, REPRESENTED BY ITS AUTHORISED SIGNATORY. * ADDL.R3 IMPLEADED * ADDL.R3: JAISU DREDGING AND SHIPPING LIMITED, REGISTERED OFFICE, ROOM NO.1& 2, ''KEWAL RAMANI HOUSE”,DINSHAW BUILDING ROAD, NR.CUSTOM HOUSE, KANDLA PORT (GUJARAT), INDIA- 370220, REPRESENTED BY ITS AUTHORISED SIGNATORY, MRS.PRIYANKA V.KEWALRAMANI. -2- ARBA.NO.27/2011 * IMPLEADED AS ADDITIONAL RESPONDENT NO.3 AS PER ORDER DATED 03/6/2011 IN I.A.NO.1356/2011 R1 BY SRI.K.L.VARGHESE, SENIOR ADVOCATE BY ADVS. SRI.G.SREEKUMAR SMT.SANTHA VARGHESE SRI.RAHUL VARGHESE SRI.RANJITH VARGHESE R2 BY ADV. SRI.MILLU DANDAPANI ADDL.R3 BY SRI.ABRAHAM VAKKANAL, SENIOR ADVOCATE BY ADVS. SRI.PAUL ABRAHAM VAKKANAL SRI.DIJO SEBASTIAN SMT.VINEETHA SUSAN THOMAS THIS ARBITRATION APPEALS HAVING BEEN FINALLY HEARD ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts R. BASANT & K. SURENDRA MOHAN, JJ. ........................................... Arbitration Appeal NO.27 OF 2011 ............................................. Dated this the 8th day of June, 2011. JUDGMENT Basant, J: In this appeal under Section 37(1) (a) of the Arbitration and Conciliation Act, the appellant assails the order passed under Section 9 of the Act by the District Court, Ernakulam. By the impugned order, petition filed by the petitioner to restrain respondent No.1 from removing scheduled properties from the Cochin Port area till the disposal of the proposed arbitration proceedings between the appellant and 1st respondent was dismissed by the court. 2. Considering the nature of the narrow compass of the dispute surviving before us, we deem it unnecessary to advert to facts in detail. Learned counsel for the appellant/petitioner submits that the appellant has engaged other contractors to get the remaining part of the work done. In these circumstances the appellant/petitioner does not want to press for any relief in this petition filed under Section 9. The appellant may be permitted to withdraw the petition. Arbitration Appeal NO.27 OF 2011 : 2 : The impugned order may be set aside without any fetter on the rights of all concerned to raise appropriate contentions before appropriate authorities. 3. We were persuaded to accept the said request of the appellant and wanted the counsel for the first respondent who alone was arrayed as a respondent by the appellant in that original petition to make submissions. Learned counsel for the 1st respondent submits that the appellant is not entitled for the order prayed for under Section 9 and the appellant is guilty of improper conduct in the course of the proceedings before the District Court. That is the reason why the District Court has not granted the relief. 4. We do not think it necessary to spend the time of the court to decide whether the District Court was justified in not granting the relief. A detailed discussion on that aspect appears to be unnecessary in as much as the appellant does not now claim any relief under Section 9 now. It is submitted that the appellant has already filed an application under Section 9 for attachment of properties belonging to the first respondent. The said petition is pending now, it is submitted. Arbitration Appeal NO.27 OF 2011 : 3 : 5. Counsel for additional respondent No.2 and counsel for additional respondent No.3 only pray that their right to seek appropriate reliefs against the petitioner in appropriate proceedings may not be fettered by the disposal of this appeal. Counsel for additional second respondent specifically submits that additional second respondent wants to claim damages for the loss suffered by the additional second respondent on account of the conduct of the petitioner. Learned counsel for additional respondent No.3 submits that W.P.(C) No.14331/2011 has been filed by additional respondent No.3 and the same is pending before another Bench. 6. Having considered all the relevant circumstances, we are satisfied that the appellant can be permitted to withdraw O.P.(Arbitration).No.442/2011 filed by him. Consequently the impugned order can be set aside. We make it clear that this is without prejudice to any rights which respondents 1 to 3 want to claim against the appellant herein. No right available to respondents 1 to 3 will be fettered by the permission granted to the appellant Arbitration Appeal NO.27 OF 2011 : 4 : to withdraw O.P.(Arbitration) No.442/2011 and the consequence of setting aside of the impugned order. 7. We make it clear that we have not gone into the merits of the impugned order. We feel that it will be unnecessary to encumber records by making any observations on merits now, as no relief is now claimed by the appellant. The option of the respondents, if necessary, to comment on the alleged unfair and improper conduct of the appellant in the proceedings initiated by them before the District Judge shall remain unfettered by the dismissal of this appeal. With the above observations this appeal is allowed. The impugned order is set aside and the appellant is permitted to withdraw O.P.(Arbitration)No.442/2011 filed by him. R. BASANT, JUDGE. K. SURENDRA MOHAN, JUDGE. cl