*1* kps I N THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION ARBITRATION APPEAL NO.5/2009 WITH CIVIL APPLICATION NO.6/2009. Shree Ravji Dhanji Shah and others. ..Appellants -Versus- Rajashree Shelters Pvt.Ltd.. ..Respondent .... Mr.Ashutosh Gole for the Appellants. Mr.Nitin Mule for the Respondent. .... CORAM : S.C.DHARMADHIKARI, J. Date : 18th June, 2010. P.C. 1 This is an Arbitration Appeal which impugns the order dated 11.09.2008 below Exhibit-5 in Misc. Application No.79/2008. 2 The Respondent No.1 (original Petitioner) moved the Arbitration Petition being Misc. Application No.79/2008 in which another application Exhibit-5 was made under Section 9 of the Arbitration & Conciliation Act, 1996 wherein the principal relief claimed is of an injunction to restrain the present Appellants and other persons claiming through them from acting in any manner contrary to the terms of the agreements dated 08.09.1994 and 10.05.1999 and the decree in Regular Civil Suit No.202/1996 passed by the Civil Judge, Junior Division, Kalyan; so also directly or indirectly alienating, disposing of, parting with possession or inducting any third party or creating any third party rights or *2* interest in the land being lands bearing Survey No.2, Hissa No.8 and Survey No.42, Hissa No.1 and 2 admeasuring 17,393 sq. yards equivalent to 14,542.80 sq.mtrs., situated at village Netivali, Kalyan (East), District Thane, in any manner whatsoever. 3 The grievance of the Appellants is that the Respondent filed the Misc. Application No.79/2008 invoking the jurisdiction of the Court below under Section 11 of the Arbitration & Conciliation Act, 1996, however, that application was not maintainable before the District Court. Therefore, the Respondent ultimately withdrew it. However, the Respondent also made an application Exhibit-5 under Section 9 of the Arbitration & Conciliation Act, 1996. That application was also wholly misconceived because the Respondent sought interim measures pending the decision on their application under Section 11 of the Arbitration & Conciliation Act, 1996. This being the circumstance, according to the learned counsel appearing for the Appellants, the Court below could not have passed any ad- interim or interim order purportedly exercising the jurisdiction under Section 9. The impugned order, therefore, must be set aside on this ground alone. In other words, when the main proceeding was not maintainable, it was not open for the Court below to pass any order allegedly protecting the subject matter of the arbitration. 4 Mr.Mule, learned counsel appearing for the Respondent, fairly concedes that the Court below has no jurisdiction to appoint an arbitrator under Section 11, therefore, that application could not have been filed. In any event that is now withdrawn. As far as the impugned order is concerned, Mr.Mule submits that assuming *3* without admitting that it was passed on Exhibit-5 in Misc. Application No.79/2008 yet the powers of the Court below to grant interim measures pending the arbitration are no way affected even it has no jurisdiction to appoint the Arbitrator. Once the order is made under Section 9 then there is no reason to interfere. 5 During the course of hearing, Mr.Mule submits that without entering into any larger controversy, not just Misc. Application No.79/2008 but even Misc. Application No.251/2009 is now withdrawn and does not survive. Therefore, an opportunity be given to the Respondent to invoke the jurisdiction of the Court below under Section 9 by making a fresh application. Mr.Mule states that the Respondent will abide by the time schedule prescribed in this Court’s order. To enable him to file an application under Section 9, the order made by the Court below be continued for reasonable period. 6 The learned counsel for the Appellants states that the Respondents have obtained in their favour ad-interim order dated 11.09.2008 and are not serious about the arbitration. Further a civil suit has been filed by the Appellants against the Respondents, so also against the third party and that is pending. In such circumstances, they will be prejudiced if the impugned order is continued further. 7 Having heard the learned counsel appearing for the parties, I am of the opinion that it is not necessary to enter into the merits of the controversy. Further, the suggestion of Shri Mule appears to be fair. It is necessary to ensure that the Appellants are not prejudiced further. In these circumstances, interest of justice *4* would be served if the following order is made:- (i) The impugned order of the Court below is set aside. (ii) The Respondent can file a fresh application under Section 9 of the Arbitration & Conciliation Act, 1996 within a period of two weeks from today. (iii) If such an application is made the Court below to decide it without being influenced by the order dated 11.09.2008 or any observations therein. The Application will be decided uninfluenced by the fact that this Court has made any adhoc or ad-interim arrangement. (iv) All aspects including the maintainability of the proceedings are kept open. (iv) To enable the Respondent to make an application during the period specified above, it is directed that both sides shall maintain status-quo as of today in respect of the property described in paragraph No.2 above. This direction is without prejudice to the rights and contentions of parties. (v) It is needless to mention that if the application is not made within the prescribed time above, the order of status-quo shall stand vacated without further reference to the Court. 8 At this stage, Mr.Mule states that the order of status-quo may prejudice the Respondent’s rights in Survey No.2 Hissa No.8 inasmuch as the Respondent has constructed two buildings consisting of flats/tenements and has disposed of the same, however, there are some works which are pending and which will not be *5* completed because of this order. 9 Having heard both sides on this aspect, all that can be directed, at this stage, is without prejudice to the rights and contentions of both sides, status-quo shall be maintained but the order will not prevent the Respondent from completing the pending works in the said two buildings but such activities would not enable the Respondent to claim any equities. The Court below, when taking cognizance of the fresh application, shall not be influenced by the order of status-quo or its clarification in any manner. 10 The Appeal is, accordingly, disposed of. In view of disposal of the appeal, Civil Application does not survive and the same is also disposed of. [ S.C.DHARMADHIKARI, J. ]