- 1 - 155.08 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 155 OF 2008 in ARBITRATION PETITION NO.409 OF 2007 Mrs Naheed Hafeex Auraishi (Patrawala) .. Appellants (Orig.Respt nos.1 to 5) vs M/s Jeweltouch (India) Pvt Ltd .Respondents (Orig.Petitioner & Respt nos. 6 to 8) Mr.Gaurav Joshi with Mr.Naushad Engineer i.b RMG Associates for Appellants Mr.D.D.Madon Sr.Advocate i.b Mr.Anil D Souza for Respondent no.1 Mr.Birendra Saraf with Mr.Nirmal Devnani i.b Mr.Ashok Purohit & Co for Respondent no.4. CORAM: D.K.DESHMUKH & ANOOP V.MOHTA, JJ DATE: 25th April, 2011 PER COURT 1. By this Appeal, the Appellant takes exception to the order dated 25th January, 2008 passed by the learned Single Judge making interim order under section 9 of the - 2 - 155.08 Arbitration and Conciliation Act, 1996. Before the learned single judge, an objection to the maintainability of the Application was made on the ground that there is no Arbitration Agreement between the parties. After hearing the parties for sometime, we made a suggestion to the parties that the question as to the existence or otherwise of the arbitration clause can be kept open to be raised before the Arbitrator who can finally decide the question. The parties have agreed to this. However, according to the appellant, the respondents should have been directed by the learned single Judge to deposit such amount which according to the respondents is the balance amount of consideration. On our suggestion however, parties have left if to us to determine the amount that should be deposited by the respondent no.1 during the pendency of the Arbitration proceedings. - 3 - 155.08 2. Mr.Joshi, learned counsel for the Appellant has stated before us that the appellant have settled with the respondent nos.2 and 3 and as a result of that settlement, respondent nos. 2 and 3 no more have any rights in the matter as they have released their rights in favour of the present Appellant. Learned counsel stated that a copy of the settlement arrived at between the Appellant and the respondent nos. 2 and 3 will be supplied to the Advocate appearing for respondent no.1. 3. By consent of the parties, Hon ble Mrs Justice Sujata V.Manohar (Retd), Address: 16,Walkeshwar Road, Mumbai-6 is appointed as an Arbitrator. The dispute between the parties are referred to her for decision in accordance with law. - 4 - 155.08 4. Before the Arbitrator it shall be open to the Appellant or the respondent no.4 to raise objections as to the jurisdiction of the learned Arbitrator on any ground that may be available to the Appellant or respondent no.4 including that there is no Arbitration Agreement between the parties. That objection shall be disposed of by the learned Arbitrator as expeditiously as possible in accordance with law on the basis of the material produced before her as a preliminary issue. 5. Accordingly, the order impugned in the Appeal is set aside. However, the operative part of the order passed by the learned single Judge as also interim order passed in Appeal which is presently operating shall continue to operate during the pendency of the proceedings before the learned Arbitrator on the point of existence or - 5 - 155.08 otherwise of the Arbitration agreement. 6. In case the learned Arbitrator concludes that there is Arbitration Agreement between the parties and she has the jurisdiction in the matter, respondent no. 1 shall be at liberty to apply for any further interim reliefs. On the other hand in case the learned Arbitrator holds that there is no Arbitration Agreement between the parties interim order that is being continued by this order shall cease to operate on expiry of a period of four weeks from the date of the order on preliminary issue made by the learned Arbitrator being communicated to the parties. 7. Without prejudice to the rights and contentions of the respondent no.1 the respondent no.1 shall deposit an amount of Rs.15 crores within a period of eight weeks - 6 - 155.08 in this Court. The learned Arbitrator shall make appropriate orders regarding disposal of the amount either at the stage of deciding the preliminary issue or at the final decision of the Arbitration proceedings. The Appellant and respondent no.4 shall be at liberty to make an application before the learned Arbitrator for a direction to the respondent no.1 to deposit any more amount. Similarly, respondent no.1 shall be at liberty to make an application for reduction of the amount that the respondent no.1 has deposited pursuant to this order. 8. It is made clear that the amount which is being deposited by the respondent no.1 is without prejudice to the rights and contentions of both parties and that no equity is to be claimed by the respondent no.1 on the basis of the deposit of the - 7 - 155.08 amount. The amount on being deposited shall be invested in Fixed Deposit for an appropriate period by the Prothonotary and Senior Master of this Court. 9. In case the respondent no.1 fails to deposit the amount within the aforesaid period, this order will stand cancelled, order of the learned Single Judge dated 25th January, 2011 shall stand set aside. Appeal and Notice of Motion stands disposed of accordingly. Anoop V.Mohta, J D.K.Deshmukh,J - 8 - 155.08