FAO(OS) No. 258/2009 Page 1 of 2 18. * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO(OS) 258/2009 & CM Nos. 8727-29/2009 % Decided on: 6th July, 2009 S.B. VERMA CONSTRUCTION CO. ..... Appellant Through: Mr. Moni Cinmoy and Mr. Rajesh Kumar, Advocates. versus TEKNOW CONSULTANTS & ENGINEERS PVT. LTD. & ANR. .... Respondents Through: None. CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL 1. Whether the Reporters of the local newspapers be allowed to see the Judgment? No 2. To be referred to the Reporter or not? No 3. Whether the Judgment should be reported in the Digest? No J U D G M E N T (ORAL) MUKUL MUDGAL, J. + C.M. Nos. 8728-29/2009 (for exemption) in FAO(OS) No.258 /2009 * Exemption allowed subject to all just exceptions. The applications stand disposed of. + FAO(OS) No.258 /2009 & C.M. No. 8727/ 2009 (for stay) The grievance by the appellant in the present appeal relates to the non-taking of the measurements of the work done by the appellant up to date which were declined by FAO(OS) No. 258/2009 Page 2 of 2 the learned Single Judge on the ground that as per the arbitration clause, the Managing Director of the company had not been approached before seeking the relief under Section 9 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act). The impugned order is dated 9th February, 2009 and the learned counsel for the appellant has drawn our attention to a letter dated 12th February, 2009 by which such an approach postulated by the learned Single Judge’s order was indeed made to the Managing Director. While such an approach was made on 10th February, 2009, a letter of 12th February, 2009 records that rather than acting on the said request, the Managing Director straightaway proceeded by directing the appellant to file the claims, therefore, declining the request of protection sought by him. In our view, since the appellant has already approached the Managing Director as averred, the proper course for the appellant would be to invoke the jurisdiction of Section 9 of the Act as per the law laid down by this Court in FAO(OS) No. 164/2009, Prima Developers Vs. Lords Co-operative Group Housing Society Ltd., decided on 8th May, 2009. Accordingly, while reserving the liberty to the appellant to approach the learned Single Judge under Section 9 of the Act, we dismiss the appeal as having become infructuous. The pending application also stands disposed of. MUKUL MUDGAL, J NEERAJ KISHAN KAUL, J JULY 06, 2009 sb