Uttarakhand High Court
6 March vs Garhwal Mandal Vikas Nigam Limited & … on 6 March, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:1545-DB
HIGH COURT OF UTTARAKHAND AT NAINITAL
JUSTICE SHRI MANOJ KUMAR TIWARI
AND
JUSTICE SHRI VIVEK BHARTI SHARMA
Appeal From Order No. 35 of 2025
06 March, 2025
Hoshiyar Singh Negi --Appellant
Versus
Garhwal Mandal Vikas Nigam Limited & others
--Respondents
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Presence:-
1. Mr. Neeraj Garg, learned counsel for the appellant.
2. Ms. Abhilasha Tomar, learned counsel holding brief of Mr.
Sandeep Kothari, learned counsel for the respondent no. 1.
3. Ms. Mamta Bisht, learned Deputy Advocate General for the
State.
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JUDGMENT:
(per Shri Manoj Kumar Tiwari, J.)
This is an appeal, filed under Section 37 of the
Arbitration and Conciliation Act, 1996 read with Section
13 of Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts Act, 2015
challenging the order dated 23.12.2024 passed by
learned Additional District Judge (Commercial Court),
Dehradun in Arbitration Case No. 90 of 2023.
2. By the impugned order, application for interim
relief, filed by the appellant under Section 9(1) of the
Arbitration and Conciliation Act, 1996 (for short “the Act”)
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was rejected on the ground that appellant has not shown
willingness or eagerness for approaching Arbitral
Tribunal for resolution of the dispute, in his application,
filed under Section 9 of the Act.
3. Learned Commercial Court relied upon a
judgment rendered by Hon’ble Supreme Court in the case
of “Firm Ashok Traders & Another vs. Gurumukh Das
Saluja & others” reported as (2004) 3 SCC 155, for
non-suiting the appellant for interim relief.
4. Appellant has challenged rejection of his
interim relief application on the ground that learned
Commercial Court completely misread the judgment
rendered by Hon’ble Supreme Court in the case of “Firm
Ashok Traders” (supra). It is contended that the said
judgment nowhere provides that interim relief has to be
denied under Section 9 for non-indication of applicant’s
intent to approach the Arbitral Tribunal or for his not
disclosing the timeline for approaching the Arbitral
Tribunal.
5. Learned counsel for the appellant refers to
para 18 of the aforesaid judgment in support of his
contention, relevant extract whereof is reproduced
below:-
“18. ……… The court, approached by a party with an
application under Section 9, is justified in asking the
party and being told how and when the party
approaching the court proposes to commence the
arbitral proceedings. Rather, the scheme in which
Section 9 is placed obligates the court to do so. The
court may also while passing an order under Section2
2025:UHC:1545-DB
9 put the party on terms and may recall the order if
the party commits breach of the terms.”
6. Learned counsel for the appellant submits that
Hon’ble Supreme Court in the above extracted portion of
the judgment in the case of “Firm Ashok Traders” (supra)
has held that even where the party approaching a court
for interim relief under Section 9 of the Act has not
disclosed his intent to commence arbitral proceedings,
then also the court/Tribunal can ask such party
regarding his intention and also the time needed by him
for approaching the Arbitral Tribunal and impose
conditions while passing any order in his favour.
7. He submits that the Hon’ble Supreme Court,in
the above judgment, has further held that the court while
passing an order under Section 9 of the Act may put the
party seeking interim relief on terms and may recall the
order, if he commits breach of the terms imposed by the
Court. Thus, it is contended by learned counsel for the
appellant that the judgment relied upon by learned
Commercial Court nowhere provides that in case of non-
disclosure of intent to approach Arbitral Tribunal,
interim relief has to be denied.
8. He further submits that sub-section 2 and
sub-section 3 were inserted in Section 9 of the Act vide
Act No. 3 of 2016 w.e.f. 23.10.2015. Sub-Section 2 and
sub-section 3 of Section 9 of the Act as amended by Act
No. 3 of 2016 are extracted below:-
“9. Interim measures, etc. by Court.-
[1] ………………..
[(2)Where, before the commencement of the arbitral
proceedings, a Court passes an order for any
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interim measure of protection under sub-section (1),
the arbitral proceedings shall be commenced within
a period of ninety days from the date of such order
or within such further time as the Court may
determine.]
[(3) Once the arbitral tribunal has been constituted,
the Court shall not entertain an application under
sub-section (1), unless the Court finds that
circumstances exist which may not render the
remedy provided under section 17 efficacious.]”
9. This Court finds substance in the submission
made by learned counsel for the appellant that in a case
where willingness of the party approaching a court for
interim relief, is not disclosed in the application or the
time within which that party would approach the Arbitral
Tribunal is not indicated, then also arbitral proceedings
have to be commenced within a period of 90 days of
passing of the order or within such further time as the
court may determine in view of provision contained in
Sub-section (2) of Section 9 of the Act. The judgment
relied by learned Commercial Court was before
amendment and after amendment in the Act, position
has become more clear. Thus, rejection of the application
for interim relief by learned Commercial Court by
misreading the judgment rendered in “Firm Ashok
Traders” (supra) is unsustainable.
10. Learned Commercial Court has also considered
the three factors, namely, prima facie case, balance of
convenience and irreparable injury, which ought not have
been considered, since appellant was non-suited on the
ground of non-disclosure of his intent to approach the
Arbitral Tribunal. Therefore, the finding returned by
learned Commercial Court on these factors is set-aside.
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11. Accordingly, the present appeal is allowed.
Impugned order dated 23.12.2024 passed by learned
Additional District Judge (Commercial Court), Dehradun
is hereby set-aside. The matter is remitted back to the
court concerned for deciding the interim relief application
afresh, on merits, uninfluenced by any observation made
in the impugned order.
(VivekBharti Sharma, J.) (Manoj Kumar Tiwari, J.)
06.03.2025 06.03.2025
Mamta/Akash5
