bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION ARBITRATION ARBITRATION ARBITRATION APPEAL NO. 28 OF 2008 APPEAL NO. 28 OF 2008 APPEAL NO. 28 OF 2008 WITH WITH WITH CIVIL CIVIL CIVIL APPLICATION NO. 32 OF 2008 APPLICATION NO. 32 OF 2008 APPLICATION NO. 32 OF 2008 Air Ports Authority of India ... Appellant v/s M/s.Sreenath Enterprises ... Respondent Mr.Himanshu Kode with H.E.H.Newme i/by The Law Point for the appellant. Mr.A.B.Tejane for the respondent. CORAM: CORAM: CORAM: DR.D.Y.CHANDRACHUD, J. DR.D.Y.CHANDRACHUD, J. DR.D.Y.CHANDRACHUD, J. DATED: DATED: DATED: 13TH MARCH, 2009 13TH MARCH, 2009 13TH MARCH, 2009 P.C. P.C. P.C.: 1. In an application under Section 9 of the Arbitration and Conciliation Act, 1996, the District Judge, by his order dated 11.8.2008 passed the following directions:- "The opponents or anybody claiming through them are restrained from changing or disturbing, in any manner, the status of the construction work carried out by the applicant until the applicant get an opportunity to approach the arbitrator to seek necessary reliefs in respect of the construction work." 2. On 6th February, 2009 when the civil application came up before this Court together with the arbitration 2 appeal, the Court passed the following order:- "The sole Arbitrator by his order dated 28th January, 2009 directed the parties to carry out joint measurements of all the exposed work and to submit a signed document showing the measurements by 20th February, 2009. Counsel appearing for the applicant and counsel appearing for the respondent are agreed that joint measurements shall be carried out on Monday, 9th February, 2009 at 11.00 a.m. at the site in question viz. Lohgaon Airport at Pune. The respondent has agreed to depute an authorized representative for the said purpose. It has been stated on behalf of the applicant that the claim filed by the respondent before the learned Arbitrator is only for damages. Upon the completion of the joint measurements, there is no reason why the applicant should not be allowed to complete the process of calling for fresh tenders in accordance with its advertisement dated 30th June, 2008. There shall accordingly be an ad-interim order in terms of prayer clause (a)(ii)." Prayer clause (a)(ii) permitted the appellant to complete the process of calling for fresh tenders in accordance with its advertisement dated 30th June, 2008. 3. The learned counsel appearing on behalf of the appellant and the respondent have informed the Court that in pursuance of the order of this Court dated 6th February, 2009, joint measurements were carried out by the parties. Since the respondent has now moved the Arbitral Tribunal and joint measurements have been carried out on 20th February, 2009, the order of injunction that was issued on 11th August, 2008 need not 3 continue to remain in force any further. The claim of the respondent in the arbitral proceeding (as would be seen from the abstract for claims annexed at page No.87 of the paper-book) has been quantified in monetary terms at Rs.3,69,79,944/- upon which interest at the rate of 18% per annum has been claimed. The claim includes a claim on account of loss of business and loss of profit. Since the claim has been quantified in monetary terms, no order of injunction is warranted. The claimant will have to substantiate the claim on the basis of evidence before the Arbitral Tribunal. Joint measurements have already been carried out by consent of parties. 4. In that view of the matter, since joint measurements have already been carried out by the parties and the parties are before the Arbitral Tribunal, the order of injunction would have to be vacated. The appeal shall accordingly stand allowed. The impugned order dated 11th August, 2008 shall stand set aside. 5. In view of the disposal of the appeal, the civil application does not survive and is accordingly disposed of. (DR.D.Y.CHANDRACHUD, (DR.D.Y.CHANDRACHUD, (DR.D.Y.CHANDRACHUD, J.) J.) J.)