1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION ARBITRATION APPEAL NO . 26 of 2009 WITH CAR NO. 24/2009 IN ARA 26/2009 M/s. Ekta Shakti Developers & ors. ...Appellant v/s. Shakti Insulated Wires Pvt. Ltd. ...Respondents Mr. F.E.Devitre a/w. Mr. Rajesh Shah and Ms Ekta Dambe i/b. Banhim Desai & Co. for the Appellant. Mr. Paritosh Jaiswal i/b. Kanga & Co. for the respondents. CORAM:- A.M.KHANWILKAR, J DATED:- September 11, 2009. P.C. Heard Counsel for the parties. 2. By consent, appeal is taken up for final disposal forthwith. 3. This Appeal takes exception to the order passed by the sole Arbitrator dated 27/9/2009 on an application under Section 17 of the Arbitration and Conciliation Act, 1996. 4. By the said order, the Appellants have been restrained from creating third party rights or in any manner disposing of or parting with possession of any portion of the first floor of the property under construction pending the arbitration proceedings. In addition, the Arbitrator has ordered that either party 2 can issue a public notice of the pending arbitration proceedings. Thirdly, the Arbitrator has ordered that the construction work which is now being carried out will be entirely at the risk of the Appellants and the fact of such construction will not be considered as a ground for granting or not granting any relief either in the claim or in the counter claim. 5. The grievance of the Appellant before this Court, amongst others, is that the Arbitrator has not considered the crucial factors which were relevant for examining the relief claimed by the Respondent-claimant. Firstly, the fact that on two occasions, this Court declined to grant ad-interim relief to the claimant has not been adverted to at all in the impugned decision although that fact was placed on record by way of reply and also argued before the Arbitrator. The second crucial fact which has been glossed over by the Arbitrator is that under the 3rd agreement under which the construction work is in progress, full payment has been made to the claimant. Indeed, the Arbitrator has proceeded on the basis that the three agreements are inter-connected. Nevertheless, the efficacy of this aspect ought to have been adverted to in the impugned order and answered one way or the other. Counsel appearing for the Appellant then submits that there are other factors which are relevant for considering the grant or non-grant of interim-relief as prayed by the claimant which has not been adverted to in the impugned order. To my mind, the grievance made by the Appellant seems to be correct. The Appellant filed a detailed reply affidavit in the arbitration proceedings which refers to those factors which are now pressed into service. None of those factors have been specifically adverted to in the impugned order and discarded by the Arbitrator so as to grant interim-relief as claimed by the claimant. On the other hand, those factors may have some bearing in considering the interim-relief claimed by the claimant. In my 3 opinion, without elaborating further, the appropriate course is to set aside the impugned order and relegate the parties before the Arbitrator for reconsideration of the Application under Section 17, which will have to be decided de novo after considering all aspects of the matter. In the meantime, however, the direction issued by the Arbitrator that the construction work which is now in progress will be entirely at the risk of the Respondents and fact of such construction will not be a ground to claim equity, the same will operate till further appropriate orders to be passed by the Arbitrator. 6. I am informed that the direction issued by the Arbitrator that either party can give a public notice is already worked out, as the claimant has issued public notice regarding the pending arbitration proceedings. However, to assuage the apprehension of the claimant till further appropriate order is passed by the Arbitrator, it may be appropriate if the Appellants were to notify and incorporate the fact in the agreement to be entered with the prospective purchaser of the first floor of the property under construction, about the pending arbitration proceedings. That will be in the larger interest of all concerned. The Appellants shall abide by this observation. 7. Application under Section 17 is remitted before the Arbitrator for consideration on its own merits afresh. 8. Appeal disposed of on the above terms. No order as to costs. (A.M.KHANWILKAR, J)