=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.491 NO.491 NO.491 OF 2007 OF 2007 OF 2007 IN IN IN ARBITRATION ARBITRATION ARBITRATION PETITION NO.490 OF 2006 PETITION NO.490 OF 2006 PETITION NO.490 OF 2006 Mahagenco Prakashgad, Bandra, Mumbai 400 051 ...Appellants v/s Dirk India Pvt.Ltd., Indira Nagar, Nashik 422 009 ...Respondents Mr S.S. Kulkarni, AGP for Appellants. Mr Rafiq Dada, Sr.Counsel with Mr Janak Dwarkadas, Sr.Counsel, Mr Zubair Dada, Mr Mukul Taly and Mr Shaikh Yusuf i/b M/s Mahomedbhai and Co. for Respondents. CORAM CORAM CORAM : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. DATE DATE DATE : 12TH FEBRUARY 2009 12TH FEBRUARY 2009 12TH FEBRUARY 2009 =2= P.C. :- 1. This appeal is directed against the order dated 8th March 2007 passed by the learned Single Judge of this Court in arbitration petition No.490 of 2006. The order has been passed by the learned Single Judge in exercise of powers conferred by section 9 of the Arbitration and Conciliation Act 1996. In this appeal, an interim order has been passed by the Division Bench of this Court dated 5th May 2008 making interim arrangement to operate till the award is made. We have heard both the parties. We find that the principal grievance of the appellants in so far as the interim order dated 5th May 2008 passed by the Division Bench in this appeal is concerned, is in relation to clause (f) of that order. According to the appellants, there should be some machinery which would adjudicate whether they have been lifting any PFA from ’A’ hopper within a period of 15 minutes or above. Therefore, we made suggestion to both the sides and after hearing them, in our opinion, disposal of this appeal in terms of the order dated 5th May 2008 passed in this appeal with following modifications in clauses would meet the ends of justice. The modified order would be as follows :- =3= 2. Clauses (a) to (e) of paragraph 1 of the order dated 5th May 2008 shall remain the same. 3. The operation of clause (f) of paragraph 1 shall be subject to the following. (i) In the event of appellants’ contention that the respondents have not lifted any PFA from any hopper for a period of 15 minutes or above and if such contention of the appellants is disputed by the respondents, the question as to whether PFA was lifted within the said period of 15 minutes or not shall be referred to the Sub-Divisional Officer / Deputy Collector, to be nominated for that purpose by the Collector, Nashik. The Collector, Nashik is directed to make a nomination within a period of one week of service of copy of this order on the Collector. The Officer nominated by the Collector, Nashik shall hear both the parties and decide whether or not there has been a default of more 15 minutes and whether the claimants have lost the right over the said hoppers. (ii) The contention of the appellants that the respondents have not lifted the PFA from any hopper within 15 minutes or above shall be in writing to the respondents. The writing shall be within a period of two days from the time of default. The respondents =4= shall be free to contest the same within a period of two days of receipt of the communication by the appellants in that behalf. Either parties shall thereafter refer the issue to the person referred to in clause (i) above and he shall decide it after hearing both the sides within seven days from the date of reference. (iii) It is clarified that till such decision is made and communicated to both the parties within a period of one week, and if the decision is adverse to the respondents, it shall not be implemented by the appellants for a period of one week from such communication. (iv) The respondents shall install CCTV cameras to constantly monitor the affairs and record collection of PFA made by the respondents from the hoppers selected by the respondents. The CCTV cameras shall be in the premises of the NTPS and under their control. (v) The CCTV cameras shall be installed within three weeks from the date of this order and cost therefor shall be borne and paid by the respondents. All on-line data shall be made available to both the parties. (vi) It is clarified that in the event that the =5= respondents are unable to collect the PFA due to power failure or shut down of the N.T.R.S. plant, the respondents should not be treated in default. (vii) Within a period of two weeks from today, the appellants shall communicate to the respondents the names of the persons to whom the hoppers which have been seized by the appellants after the order dated 5th May 2008 are allotted and also whether those hoppers are being presently operated or not. Out of the seized hoppers referred to above that may not have been allotted by the appellants or are not being operated upon, the respondents shall be at liberty to opt for those hoppers. (viii) The respondents shall be at liberty to point out to the appellants the hoppers including seized hoppers and the further handling of PFA that may according to the respondents be contrary to any orders made by the Environment Board. On receiving the communication, the appellants shall respond to it within a period of two weeks. In case the respondents are not satisfied, the respondents shall be at liberty to approach this Court seeking appropriate orders. Similarly, in case the appellants find that any of the hoppers are being operated by the respondents contrary to the orders of the Environment Board, the appellants =6= shall be free to point out that to the respondents and the respondents shall respond to that communication within two weeks. If the respondents do not respond, they shall be similarly at liberty to approach this Court and seek appropriate orders. 4. We have been informed that it is the case of the appellants that they have suffered losses due to operation of the interim order passed by this Court under section 9 of the said Act and they have made an application before the Arbitral Tribunal for amendment in their counter claim. It is clarified that the Arbitral Tribunal shall be free to decide that application in accordance with law and this order will not come in the way of the Arbitral Tribunal in deciding the application in accordance with law. 5. This interim order shall operate, without prejudice to rights and contentions of both parties, during the pendency of the arbitral proceedings and for a period of four weeks after passing of the award. If there are any difficulties found by the parties in implementing this order, they shall be at liberty to approach this Court. . Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of =7= the Court. . Certified copy is expedited. ( D.K. DESHMUKH J.) ( A.A. SAYED J.)