OMP No.224/06 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + O.M.P. 224/2006 Date of decision : 05.05.2008 IN THE MATTER OF : #BANSI RAM ..... Petitioner ! Through Mr.Prasoon Kumar, Advocate versus $ AAKARSHAN ESTATES PVT LTD ..... Respondent ^ Through Mr.Vibhu Bhakru with Mr.Sumesh Dhawan, Advocates. CORAM: HON'BLE MS. JUSTICE HIMA KOHLI 1. Whether Reporters of Local papers may be allowed to see the judgment? No 2. To be referred to the Reporter or not? No 3. Whether the judgment should be reported in the Digest? No HIMA KOHLI, J. (ORAL) 1. The present petition is filed by the petitioner under Section 37 of the Arbitration and Conciliation Act, 1996 (in short, `the Act’) assailing the order dated 15.4.2006, passed by the learned Arbitrator in a matter entitled Aakarshan Estates Pvt. Ltd. Versus Sh.Baljit Singh and Ors. The petitioner is impleaded as respondent no.10 before the OMP No.224/06 Page 2 Arbitral Tribunal. The respondent is the claimant before the Arbitrator. By the order dated 15.4.2006, an application filed by the respondent/ claimant under Section 17 of the Act seeking interim measures was disposed of, and the respondents no.1 and 10 therein were restrained from transferring, selling, and alienating and/or disposing off or creating any third party right and/or creating any encumbrance on the suit land, subject matter of the Agreement to Sell dated 15.7.2005, measuring 185 Kanals 18 Marla situated in revenue estate of village Khedki Mazra, Tehsil Dhankot Distt. Gurgaon, Haryana. 2. Although various grounds have been taken in the petition for assailing the aforesaid order, in the course of arguments counsel for the petitioner impugns the same on the ground that the agreement for sale dated 15.7.2005, was executed by the petitioner under a mistake and misrepresentation and that the petitioner did not receive any amount from the respondent towards part performance of the agreement to sell. In this regard, counsel for the petitioner draws the attention of this Court to a reply filed by the petitioner to the application preferred by the respondent/ claimant under Section 17 of the Act before the learned Arbitrator, particularly, para 6 thereof wherein it is averred that the agreement to sell was executed under a mistake and misrepresentation and is therefore liable to be declared as null and void. In the aforesaid reply, the petitioner referred to a civil OMP No.224/06 Page 3 suit filed by him before the ADJ, Senior Division, Gurgaon against the respondent herein and one Sh.Baljit Singh, respondent no.1 in the arbitration proceedings. Counsel for the petitioner submits that even in the claim petition filed before the learned Arbitrator, the respondent/ claimant has stated that the petitioner has not encashed a cheque for Rs.5,16,000/- issued to him and nor has the same been returned to the claimant. It is therefore contended that the interim order passed by the learned Arbitrator is adversely affecting the interest of the petitioner and is liable to be vacated. 3. Counsel for the respondent opposes the present petition and submits that the order passed by the learned Arbitrator does not deserve to be interfered with for the reason that the same is based on the admission of the petitioner as to the execution of the Agreement to Sell and that in any case, the said objection can be examined only at the time of adducing evidence and not at the stage of deciding an interim application. 4. I have perused the impugned order as also the documents placed on the record by the respective parties. 5. It is pertinent to note that though the arbitration proceedings are going on before the learned Arbitrator and on the last date of hearing i.e. on 17.4.2008, the matter was posted for the examination-in-chief of the respondent/claimant, the petitioner is not OMP No.224/06 Page 4 participating in the said proceedings. Counsel for the petitioner submits that till date, the petitioner has not filed any reply to the claim petition. It is also an admitted position that an application preferred by the respondent/ claimant before the learned ADJ, Senior Division, Gurgaon under Section 8 of the Act praying inter alia for staying the proceedings in the suit instituted by the petitioner, was dismissed and against the dismissal order, the respondent/ claimant has preferred an appeal before the High Court of Punjab and Haryana wherein stay of further proceedings is operating in its favour. 6. As is manifest from a perusal of the reply filed by the petitioner to the application preferred by the respondent/claimant under Section 17 of the Act, it is not denied by the petitioner that the petitioner executed the Agreement to Sell dated 15.7.2005, and that it bears his thumb impression. For the petitioner to contend that he has affixed his thumb impression under a mistaken notion or on account of some misrepresentation by his nephew cannot be a ground for denying an interim injunction in favour of the respondent. At the time of passing an interim order under the provisions of Section 17 of the Act, the Arbitral Tribunal is required to consider a prima facie case and pass interim orders for the protection of the subject matter of the dispute. In the present case, the subject matter of the dispute is the land in question. Thus, restraining the petitioner and the other OMP No.224/06 Page 5 respondents, who are parties before the Arbitral Tribunal from transferring, selling, or encumbering in any manner the parcel of land in question is one way of safeguarding the subject matter of the dispute during the pendency of the proceedings before the Arbitral Tribunal. The learned sole Arbitrator is therefore justified in observing that it will be in the interest of the respondent to preserve the suit property till the disposal of the arbitration proceedings and that the arguments raised by the petitioner as to misrepresentation and execution of the agreement under a mistake, can be examined after the parties have adduced their evidence. As noted above, the arbitration proceedings are also at an advance stage, and the evidence of the respondent/claimant is to be recorded. 7. In the aforesaid facts and circumstances, there appears no illegality, infirmity or perversity in the impugned order which is only interim in nature, that warrants interference by this Court. Accordingly, the relief sought by the petitioner in the present petition is declined. The petition is dismissed. HIMA KOHLI,J MAY 05, 2008 `ns’