IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 WP(C).No. 7167 of 2011(U) ------------------------- PETITIONER(S): --------------- SUMARAJ.M.S., S/O.SREEKUMAR, MADATHILPARAMBIL HOUSE, VAIKOM P.O., VAIKOM, KOTTAYAM DISTRICT, NOW RESIDING AT KAYAGEES HOUSE, THALAYOLAPPARAMBU, KOTTAYAM DISTRICT. BY ADV. SMT.A.SREEKALA RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE HOME SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDENT OF POLICE, KOTTAYAM. 3. THE CIRCLE INSPECTOR OF POLICE, VAIKOM. 4. THE SUB INSPECTOR OF POLICE, THALAYOLAPPARAMBU POLICE STATION. 5. M/S.SHRIRAM TRANSPORT FINANCE CO.LTD., GEETHA COMMERCIAL COMPLEX, NEAR Y.W.C.A., M.C.ROAD, KOTTAYAM, REPRESENTED BY ITS MANAGER SUMESH.S. ADV. SRI.C.HARIKUMAR FOR R-5 SMT.MOLLY KOSHY FOR R-5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/07/2011, ALONG WITH WPC NO.8069 OF 2011 & CON. CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P. BHAVADASAN, JJ. ------------------------------------------------ W. P. C. Nos.7167, 8069 & 13439 of 2011 ------------------------------------------------ Dated this the 5th day of July, 2011 JUDGMENT Pius C. Kuriakose, J The important question that arises for decision in these three Writ Petitions is whether the Arbitral Tribunal constituted under the Arbitration and Conciliation Act, 1996 has power to direct enforcement of interim orders passed by the same in terms of Section 17(1) of the Arbitration and Conciliation Act, 1996. In all these cases, the Tribunal passed interim orders directing the petitioners to hand over the vehicles which was subject matter of the dispute between the party respondents in these Writ Petitions with a further direction that in case the direction regarding handing over is not obeyed, the parties are free to approach the police. Raising various grounds and on the authority of W. P. C. No.7167/11 & con. cases -2- various decisions including the judgment of the Supreme Court in M.D.Army W.H.O v. Sumangal Services Pvt. Ltd. (AIR (2004) SC 1345), it is urged that the impugned orders passed by the Arbitral Tribunal in these cases to the extent the same virtually directs enforcement of the orders through police is wholly without jurisdiction. The learned counsel for the petitioners namely Sri.R.Arun Raj, Smt.A.Sreekala and Sri.V.M.Krishna Kumar submitted before us that to the extent the impugned orders direct the police to render assistance to the holders of the orders for enforcing the orders, the orders are bad. It was submitted by the counsel that even for enforcing the final awards and interim awards the Arbitral Tribunal has no power. When that is the situation, the Tribunal cannot be conferred the power of enforcing its interim orders through police. Strong reliance was placed on the judgment of the Supreme Court in M.D. Army W.H.O v. Sumangal Services Pvt. Ltd. (cited supra). W. P. C. No.7167/11 & con. cases -3- The learned counsel for the party respondents, particularly Sri.E.M.Murugan submitted that the impugned orders have been passed by the Arbitral Tribunal in terms of Section 17 (1) and (2). It is with the objective of preserving the corpus of the dispute that the Tribunal passed the interim order. When the statute confers on the Arbitral Tribunal the power to pass any interim order for preserving the corpus of the dispute the power to enforce that order should be conceded to the Tribunal. Sri.Murugan also submitted that some of the parties have already preferred appeals against interim orders under Section 37(2)(b). It is open to the parties to obtain interim orders staying the impugned orders from the District Court itself rather than invoking the writ jurisdiction of this Court under Article 226. Sri.T.K.Vipindas, the learned senior Government Pleader submitted that the power of the Arbitral Tribunal to render police assistance in the matter of enforcing its interim orders is doubtful. W. P. C. No.7167/11 & con. cases -4- 2. Having anxiously considered the rival submissions addressed at the Bar, we are of the view that it is not necessary that in these cases, we decide the issue as to whether the Tribunal has powers to enforce its interim orders by directing police assistance. Concededly these interim orders are subject to appeal before the District Court under Section 37(2)(b). Some of the petitioners have already preferred appeal. We relegate all the petitioners to their appellate remedy before the District Court and dispose of the Writ Petitions accordingly. However, the interim orders passed in these Writ Petitions staying the impugned orders will continue for a period of one more month from today. 3. We also notice that all the impugned interim orders have been passed ex-parte without hearing the petitioners. We permit the petitioners to approach the Arbitral Tribunal itself seeking modification of the interim orders to the extent necessary. It is needless to say that the petitioners will have W. P. C. No.7167/11 & con. cases -5- the liberty of urging the grounds which they have raised in these Writ Petitions before the Arbitral Tribunal. If the petitioners move the Arbitral Tribunal by appropriate applications within a period of three weeks from today those applications will be entertained and appropriate orders passed in accordance with law without undue delay. 4. In the meanwhile, considering the above orders we restrain all the petitioners from transferring or otherwise disposing of the vehicles which are subject matter of the proceedings for a period of three months from today. PIUS C. KURIAKOSE JUDGE P. BHAVADASAN JUDGE kns/- W. P. C. No.7167/11 & con. cases -6-