IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 145 of 2005 Uttaranchal Power Corporation Ltd. .. Appellant Versus M/s Venus Cements Ltd. .. Respondent And Appeal From Order No. 146 of 2005 Uttaranchal Power Corporation Ltd. .. Appellant Versus M/s Venus Cements Ltd. .. Respondent Sri Alok Singh, senior Advocate, assisted by Sri B.D. Upadhyaya, Ms. Mamta Joshi, Advocates, for appellant Sri L.P. Naithani, senior Advocate, assisted by Sri Lalit Sharma, Advocate, for respondent Dated: May 8, 2008 Hon’ble B.C. Kandpal, J. Since these appeals arise out of same judgment and award and similar controversy is involved, therefore, they are being decided by this common judgment and order. By way of these appeals, under Section 37 of Arbitration and Conciliation Act, 1996, the appellant-Uttaranchal Power Corporation Limited has challenged the impugned judgment and order dated 29.1.2005 passed by District Judge, Dehradun in Arbitration Misc. Case No. 29 of 1998, M/s Venus Cements Ltd. vs. U.P. State Electricity Board & another and Arbitration Misc. Case No. 37 of 1999, M/s Venus Cements Ltd. vs. U.P. State Electricity Board & another. 2 Brief facts of the case are that in Arbitration Misc. Case No. 29 of 1998 as well as another Arbitration Misc. Case No. 37 of 1999, applications under Section 9 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’) for issuing injunction against the due to be recovered from respondent-M/s Venus Cements Ltd., were moved. The applications were objected by Uttaranchal Power Corporation Limited/appellant before this Court with the plea that the agreement referred in the petition is dated 18-3-1985 which was superseded by agreement dated 30-4-1997 and in view of proviso of paragraph 16 of the agreement if the question, disputes or difference relates to or concerns any dues chargeable to the consumer in terms of the agreement, no reference to the arbitration shall at the instance of the consumer be made till the consumer has deposited with the supplier the amount of the dues in dispute in cash. The learned District Judge after having considered the entire material available on record and hearing learned counsel for the parties disposed of the applications under Section 9 of the Act observing therein that there is a dispute between the parties referring the claims, but the Uttaranchal Electricity Board is not interested in the appointment of the Arbitrator, therefore the remedy available to the respondent-M/s Venus Cements Ltd. is to move application under Section 11(6) of the Act before the Hon’ble Chief Justice for appointment of the Arbitrator so that the controversy of the dispute be adjudicated. The court granted two months’ time to the respondent-M/s Venus Cements Ltd. to move application before the 3 Hon’ble Chief Justice for appointment of the Arbitrator. Till then the District Judge granted the injunction order against Uttaranchal Power Corporation Ltd. from recovering the dues. Feeling aggrieved by the aforesaid impugned judgment and order dated 29.1.2005, the appellant- Uttaranchal Power Corporation Ltd. has preferred the appeal before this Court. Heard Sri Alok Singh, senior Advocate, assisted by Sri B.D. Upadhyaya, Ms. Mamta Joshi, Advocates, for appellant, Sri L.P. Naithani, senior Advocate, assisted by Sri Lalit Sharma, Advocate, for respondent and perused the record. Learned counsel for the appellant has submitted that it is the pre-condition for exercise of power under Section 11(6) of the Act for approaching the Hon’ble Chief Justice to deposit the entire dues first as has been envisaged in the proviso of clause-16 of the agreement. Learned counsel for the appellant has invited my attention towards the decision of the Hon’ble Apex Court reported in (2007) 5 SCC 344, Municipal Corpn., Jabalpur and others versus Rajesh Construction Co. I have gone through the decision cited before me and I am of the view that the facts in the present case are squarely covered by the decision of the Hon’ble Apex Court. I, therefore, am of the view that the court below instead of granting the injunction in favour of M/s Venus Cements Ltd. should have directed to deposit the dues or to furnish the 4 security before approaching the Hon’ble Chief Justice for appointment of the Arbitrator. The impugned order thus suffers with manifest error and is liable to be set aside. Sri L.P. Naithani, learned senior Advocate appearing on behalf of respondent has informed the Court that applications under Section 11(6) of Arbitration and Conciliation Act, 1996, have already been moved before the Hon’ble Chief Justice, which are numbered as 02/2005 and 03/2005 and are still pending for disposal. In view of the aforesaid facts and circumstances of the case, the appeals are allowed. The impugned judgment and order dated 29.1.2005 passed by District Judge, Dehradun, in Arbitration Misc. Case No. 29 of 1998 and Arbitration Misc. Case No. 37 of 1999, is hereby set aside. Let a copy of this judgment be placed in the file of A.O. No. 146 of 2005. (B.C. Kandpal, J.) SP