1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 699 OF 2009 Shri Govindhan R. Gounder, Proprietor M/s. R.P. Enterprises, 25/987, Ashirwad C.H.S., D.N. Nagar, Andheri (W), Mumbai-400 053. ...Petitioner. Vs. Ivory Properties & Hotels Pvt. Ltd. Construction House “A”, 24th Road, Khar (West), Mumbai-400 052. ...Respondent. Mr. Toni Sachdevani for the Petitioner. Mr. Virendra Tulzapurkar, Sr. Counsel with Mr. Sandeep Parikh and Ms. Kirtida Chandarana i/by M/s. Mahernosh Humranwala for the Respondent. CORAM :- ANOOP V. MOHTA, J. DATED :- 13th November, 2009. P.C.- Heard forthwith, finally. 1 The Petitioner has invoked Section 9 of the Arbitration and Conciliation Act, 1996 (for short, the Arbitration Act) and making the following prayers:- “(a) That this Hon’ble Court be pleased to order and direct the Respondent pending the Arbitration Proceedings, not to 2 give the possession of contract site to any other contractor. (b) That this Hon’ble Court be pleased to direct the Respondent to issue certificate of work done quantity to Petitioner. (c) That this Hon’ble Court be pleased to appoint any impartial knowledgeable person / agency to take the measurements of the work done by the Petitioner.” 2 Admittedly, the Petitioner’s work was to excavate and also to provides J.C.B. and proclain on higher basis. The same work was over in September, 2006 itself. According to the Petitioner joint measurement was done on 20/09/2006 and the bill for the same was prepared on the same day. Admittedly, as per the petitioner the excavation work was commenced on 13th May, 2006 and completed on 25th May, 2006. 3 Apart from the above admitted facts, the Arbitration clause is available in the contract which provides named arbitrator. Till this date, there is no notice of invocation of said clause for appointment of the arbitrator. 4 The invocation of Section 9 of the Arbitration Act, by filing the present petition dated 31st July, 2009 and the above prayers, in my view, just cannot be granted. Besides delay, the various disputed facts referring 3 to the measurement/ joint measurements need detail inquiry and trial. As per the respondents, they have also measured the site immediately after the work. The Petitioner, however, not accepted the said measurement. 5 The Respondent after the excavation, have constructed and cemented upto plinth level on the site itself. Even otherwise, now it is not possible to have a joint measurement again of the work of excavation already alleged to have been done by the Petitioner. All these matters again need detail inquiry and trial to be agitated before the Arbitral Tribunal. 6 Considering the scope and purpose of Section 9 of the Arbitration Act, such prayers directing the respondents not to give possession of contract to another contractor has already become infructuous and just cannot be considered. No directions can be issued to issue certificate of work at this stage, when there are serious disputes about the measurements. That is to be resolved before the arbitrator named in the Arbitration clause. 7 The Petitioner can agitate before the Arbitral Tribunal all these issues. 8 Resultantly, the Petition is dismissed. No order as to costs. (ANOOP V. MOHTA, J.)