IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION ARBITRATION ARBITRATION ARBITRATION PETITION (L) NO.352 OF 2009 PETITION (L) NO.352 OF 2009 PETITION (L) NO.352 OF 2009 M/s.Kunitakara Electric Company Having its office at 4102, Oberoi Garden Estate, 4th Floor, "C" Wing, Next to Chandivali Studio, Chandivali, Mumbai-400 072. ...Petitioner. V/s. Greenvalley Home Developers (P) Ltd. Shop No.6,7 & 8, Royal Palace, Plot No.11, Sector 2, Khargar, Navi Mumbai - 410 210. ...Respondent. Mr.Vijay V. Nene for the Petitioner. Mr.Anirudha Joshi with Mr.Virag Maniar i/by Mr. Shrivastava for the Respondent. CORAM CORAM CORAM : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. DATED DATED DATED : 15th April, 2009 : 15th April, 2009 : 15th April, 2009 P.C. P.C. P.C. 1. By consent, heard finally. 2. The Petitioner has invoked Section 9 of the Arbitration and Conciliation Act, 1996 (for short, the Arbitration Act). Admittedly, there is an Arbitration clause in the agreement/ contract for Air Conditioning System dated 1st October, 2007. The entire work according to this agreement should have been completed within a period of 90 days from the date of signing of ( 2 ) the acceptance of the order. There are certain disputes arose with regard to this agreement/ contract between the parties. The Respondent by letter dated 10th February, 2009 terminated the contract and in view of the Arbitration clause by letter dated 6th March, 2009 also nominated the Arbitrator. The Petitioner has also appointed the Arbitrator. 3. The Petitioner has filed this Petition dated 13th April, 2009 and basically prayed for interim restrainment order from creating any third party rights to complete the remaining work till the dispute and difference arose between the parties are resolved and settled by the respective Arbitrator. It is also prayed that in the event of Respondent has already assigned the said remaining work to the third party, pending the hearing and disposal of the present Petition, the Respondent may be restrained from completing the said remaining work from the said third party. 4. The learned counsel appearing for the Respondent makes a statement that they have already appointed a third person to complete the work on 6th March, 2009. This fact is also not much in dispute in view of the ( 3 ) Petitioners reply on record. Therefore, admittedly third person/ party is already incharge and doing the remaining work. 5. The Apex Court in Arvind Constructions Co. (P) Arvind Constructions Co. (P) Arvind Constructions Co. (P) Ltd. Ltd. Ltd. Vs. Kalinga Mining Corporation and Ors. (2007) Vs. Kalinga Mining Corporation and Ors. (2007) Vs. Kalinga Mining Corporation and Ors. (2007) 6 S.C.C. 798, S.C.C. 798, S.C.C. 798, while dealing with the Section 9 read with Order XXXVIII, Rule 5 and provisions of Specific Reliefs Act, observed as under:- "15. The argument that the power under Section 9 of the Act is independent of the Specific Relief Act or that the restrictions placed by the Specific Relief Act cannot control the exercise of power under Section 9 of the Act cannot prima facie be accepted." . "No doubt, a view that exercise of power under Section 9 of the Act is not controlled by the Specific Relief Act has been taken by the Madhya Pradesh High Court. The power under Section 9 of the Act is not controlled by Order 38 Rule 5 of the Code of Civil Procedure is a view ( 4 ) taken by the High Court of Bombay. But, how far these decisions are correct, requires to be considered in an appropriate case. Suffice it to say that on the basis of the submissions made in this case, we are not inclined to answer that question finally. But, we may indicate that we are prima facie inclined to the view that exercise of power under Section 9 of the Act must be based on well-recognised principles governing the grant of interim injunctions and other orders of interim protection or the appointment of a Receiver." 6. The all ingredients which are mentioned/ argued for interim protection/ injunction, in the present facts and circumstances of the case, are not sufficient to restrain the Respondent as prayed. On the contrary, the balance of convenience, equity lies in favour of Respondent. If there is a breach of contract or wrongful termination of the contract that is always the matter of damages which need to be considered by the Arbitral Tribunal. The third party rights has already been created. ( 5 ) 7. The submission that the Respondent is not co-operating, just cannot be accepted at this stage as admittedly both the parties appointed the respective Arbitrator. Now, those Hon’ble Arbitrators will proceed further. 8. However, it is made clear that in pursuance to Section 17 of the Arbitration Act, the Petitioner has a remedy to invoke or move an application before the Tribunal which he is entitled to even otherwise. Therefore, the liberty is granted to the Petitioner to apply accordingly for appropriate interim order pending the settlement of the dispute. 9. Resultantly, the Petition is disposed of. No costs. [ANOOP [ANOOP [ANOOP V. MOHTA, J.] V. MOHTA, J.] V. MOHTA, J.]