//^ ^ APPELLANT: Applicant HIGH COURT OF CHHATTISGARH AT BILASPUR Arbitration Appeal No.21 of 2011 Amit Kumar Jain, aged about 33 years, S/o Shri Nirmal Kumar Jain, Partner, Namokar Tobacco Company, through Aurangabad Police Station, R/o Suti, District Murshidabad (WB) RESPONDENTS: Non-applicantNo.1 -Versus- 1. RESPONDENT Non-applicant No.2 2. RESPONDENT Non-applicant No.3 RESPONDENT Non-applicant No.4 RESPONDENT Non-applicant N0.5 5. Shri Deepak Kumar Jain, aged about 40 years, S/o Shri Nirmal Kumar Jain, Partner, Namokar Tobacco Company, R/o 114 Hemchandra Noskar Road, Second Floo.r, Kolkata-10 (WB) Shri Dibakar Pradhan, aged about 37 years, S/o late Shri Vinod Pradhan, R/o Deluda, Police Station Puru Mantri, District Angul (Orissa) Shri Manoj Kumar Mohar, aged about 28 years, S/o Shri Girish Chandra Mohar, R/o Khadarpur, Police Office - Kudugaon, Police Station Atmalik, District Angul (Orissa) Chhattisgarh Rajya Laghu Vanopaj Sangh, through Van Sanrakshak and Paden Mahaprabandhak, Jail Road, Fafadeeh, Raipur (CG) Smt. Alka Jain, aged about 40 years, (not described in the lower court order), W/o Shri Deepak Kumar Jain, Proprietor, Simran Enterprises, Aurangabad, District Murshidabad (WB) 742201, at present R/o 114 Hemchandra Noskar Road, Second Floor, Kolkata-10(WB) Present Shri Prashant Jayaswal, Sr. Advocate with Shri Shankar Tiwari, Advocate for the applicant. Shri A.S. Kachhawaha, Deputy Advocate General for respondent No.4 on advance copy. Sinale Bench: Hon'ble ShriDhirendra Mishra. J. ORAL ORDER (8-3-2011) /'/-s:we3h ^ I fesa, 1 ^! . ' ^' .^.^1 ,&^'" @ IINI- 1. The appellant has preferred this arbitration appeal under Section 37 (1) (a) of the Arbitration and Conciliation Act, 1996 (for short 'the Act of 1996') against the order of Annexure-A/1 dated 22-2-2011 passed by the learned District Judge whereby the appellant's interim application for maintaining status quo has been rejected and notices have been issued to unserved non-applicants. 2. Shri Prashant Jayaswal, learned Senior Counsel appearing on behalf of the appellant submitted that the appellant and respondent No.1 are brothers and are partners of Namokar Tobacco Company, which was allotted certain lots of tendu leaves in tender auction. Tendu leaves collected by the firm are stored in the go-down of respondent No.4 and a sum of Rs.20 lakhs has been invested in the process. Respondent No.1 and his wife (respondent No.5) are proprietor of Simran Enterprises and they have given power of attorney to respondent No.3 who has fraudulently transferred tendu leaves of the firm in favour of Simran Enterprises and have wrote a letter to respondent No.4 to allow Simran Enterprises to lift the tendu leaves. The appellant has already filed an application under Section 11 oftheAct of 1996 before the High Courtof Calcutta for referring the instant dispute for arbitration, however, the application under Section 9 has been filed to preservethe status quoso that tendu leaves stored in the go-down of respondent No.4 are not misappropriated. The appellant's application for interim order of ex-parte status quo under Section 9 (ii)(d) has been rejected by the impugned order without considering the imminent loss that the appellant is likely to suffer if the respondents are not directed to maintain status quo till the appearance of non-applicants. Relying upondecision of the Madhya Pradesh High Court in the matter ofJabalpur Cable Network Pvt. Ltd. Vs. E.S.P.N. Software Indja Pvt. Ltd and others {AIR 1999 MADHYA PRADESH 271}, itwas argued that any proceeding under Section 9 of the Act of 1996 is appealable underSection 37 (1)(a). 3. On the other hand, Shri A.S. Kachhawaha, learned counsel appearing for respondent No.4 on advance copy submitted that in the instant case, learned District Judge has refused to grant ex-parte interim order with an observation that none of the parties are likely to suffer any irreparable ^t^- ^rve, injury. Entire payment against the contract has been made to the Corporation by respondent No.1 and, therefore, question of appellant's suffering irreparable injury does not arise. 4. Heard learned counsel for the parties. 5. Indisputably, the appellant has already approached the Calcutta High Court for appointment of arbitrator as per the provisions of Clause-20 of Annexure-A/2. From the documents of Annexure-A/9 and A/11, it is clear that dispute between the parties arose on 9-4-2010 (Annexure-A/9) and legal notice was sent on behalf of the appellant to respondents No.1 and 5 on 6-10-2010 and thereafter civil suitwas filed before the 4th Civil Judge Class-2 Raipur. 6. Thus, considering that dispute between the parties arose in April, 2010; it is a dispute arising out of contract agreement having arbitration clause and in an arbitration proceeding, it is open to the parties to establish the extent of loss suffered by them before the arbitrator and application under Section 9 is yet to be finally decided by the learned District Judge, 1 am of the opinion that no interference is called for in the impugned order at this stage. 7. Inthe result, 1 do not find any substance in this appeal, the same deserves to be and is accordingly dismissed at the admission stage itself. 8d/- DhirendraMisbra Judge