Sanjay Kishan Kaul, C.J. - (1.) The subject matter of disputes is the Assignment Agreement dated 24.02.2015 containing clause 29 as Dispute Resolution Clause, which reads as under: "29. Dispute Resolution: i. Any dispute that might arise between the "ASSIGNOR" and the "ASSIGNEE" or any person claiming under them in relation to the schedule mentioned picture under this Agreement, interpretation of the terms and conditions therein or touching upon the performance of the obligations under this Agreement, the dispute shall be settled by adjudication through Arbitration under the provisions of the Arbitration and Conciliation Act, 1996. ii. The Arbitration shall be held by a sole Arbitrator to be appointed by the "ASSIGNEE" who shall be a retired District Judge or a retired High Court Judge. iii. The "ASSIGNOR" will be bound by the decision of the "ASSIGNEE" in appointment of the Arbitrator subject to the qualification stated above. iv. The Sole Arbitrator shall enter upon the Reference and adjudicate the dispute between the parties and pass a reasoned award. v. The Arbitral award shall be final and binding on the parties. vi. The proceedings shall be in English and the seat of Arbitration shall be Chennai."
(2.) The first respondent filed the suit and interim orders are operating in favour of the said respondent. The appellant moved an application under Sec. 8 of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as 'the said Act') and that application is still pending. The grievance of the appellant is that the said application should have been considered first, as if the matters have to go to arbitration, there would be no jurisdiction for the civil Court to pass interim orders and such interim orders could have been passed only on an application under Sec. 9 of the said Act.
(3.) On the last date of hearing, we put to the learned counsel for the first respondent as to why the parties should not agree to the mode of arbitration for resolution of disputes as agreed. It may be noticed that the second respondent has not put in appearance, as service has not been possible on the given address. The rights have been claimed through the second respondent. In this behalf, learned counsel for the first respondent states that he will ensure that the second respondent is served and enters appearance before the Arbitrator.;