1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION ARBITRATION APPEAL NO. 10 OF 2009 Smt. Munira Begum Mohd. Yusuf Mukri alias Munira Khalil ..Appellant. Vs. Haware Engineers & Builders Pvt.Ltd. & Anr. ..Respondents/ ..... Mr. Rajendra Mishra, for the Appellant. Mr. Atul Rajadhakshya with Akhilesh Dube i/b A.A. Khan i/b M/s M.Tripathi & Co., for Respondents. ..... CORAM: S.C. DHARMADHIKARI,J. DATE : 23 rd APRIL, 2010. P.C. 1. The Arbitration Appeal challenges the Order dated 2.2.2009 passed by the learned District Judge-1, Raigad, Alibag. 2. The Respondent’s application under section 9 of the Arbitration and Conciliation Act, 1996 is allowed, interim relief is granted restraining the Appellant/Opponent No.1 from creating third party rights in respect of plots of land allotted to her by the original Opponent No.2. 2 3. The operative portion of the order of the Court below reads thus: “1. Application is allowed. 2. Interim relief is granted against the Opponent No.1 restraining her from creating third party interest in respect of the plots of land, allotted to her by the Opponent No.2 and entering into Tripartite agreement with any one else, admeasuing 100 square meters being Plot No. 54, Sector-20 and plot No.283 admeasuring 4050 squares meters in Sector-20, Kharghar, Navi Mumbai. 3. The parties to bear their own costs. 4. Shri Mishra appearing in supporting of this appeal strenuously contended that firstly the Arbitral proceedings do not survive. The learned Arbitrator has passed an order dated 15th July 2007 and observed that Arbitration proceedings stand terminated under section 32(2) of the Act. Thus, Arbitral Proceedings have come to an end/terminated. 5. Shri Mishra then submits that this Court in exercise of the Power Conferred vide section11 of the Arbitration and Conciliation Act, 1996 appointed a Sole Arbitrator on 21st July, 2006. However, the Respondents filed a Review Petition No.2 of 2006 in Arbitration Petition No.15 of 2006, seeking review of this Order. The Review Application is rejected on 24th November, 2006. Thereafter, the Respondent has 3 approached the Hon’ble Supreme Court challenging the main Order dated 15th July, 2006. The Hon’ble Supreme Court has entertained the Appeal and the matter is pending there. Therefore, according to Shri Mishra nothing survives in the Application under section 9 of the Act and no Interim Order cold have been granted by the Court below. 6. However, Shri Mishra submits that without prejudice to the rights and contentions and even assuming that the proceedings do survive, yet, the District Judge was in error in granting an injunction as prayed because the property in question has already been dealt with by the Appellant. Inviting my attention to the statement attributed to the Appellant’s Advocate in the Trial Court and recorded in paragraph 9 of the impugned Order, Shri Mishra submits that the property has already changed hand and even physical possession is not with the Appellant. I am afraid I am unable to accept the contention of Shri Mishra in so far as the property having changed hands. I am not concerned with the Order of the Arbitral Tribunal terminating the proceedings. Further, I am also not concerned with the controversy arising out of the Order passed by this Court under section 11 of the Arbitration and Conciliation Act, 1996 because the challenge to that Order is yet pending before the Hon’ble Supreme Court. 7. Suffice it to note that before the District Judge no documents were placed on record so as to enable him to conclude that the property 4 has changed hands and physical possession of the same is not with the Appellant. Barring the oral statement as recorded in paragraph 9 of the Order and the submission, it is clear that nothing was produced so as to prima facie demonstrate this aspect. In such circumstance, and in the light of the reasoning of the lower Court, to my mind, prima facie conclusion that the subject matter of the Reference deserves to be protected requires no interference. The Appeal is therefore dismissed. However, it is directed that the interim order made by the District Judge shall continue till the Supreme Court proceedings are concluded, after which the appellant and parties would be at liberty to seek appropriate relief. 8. Shri Mishra seeks stay of operation of this Order. To my mind, the appeal preferred by the Appellant has been dismissed and such an order cannot be stayed. The prayer for stay is therefore rejected. 9. Appeal dismissed. No costs. (S. C. DHARMADHIKARI, J.)