- (1.) R. K. Mahajan, J. This is a civil revision against the order dated 20-3-1993 passed by Sri V. S. Katiyar, P. C. S. (J) First Additional Civil Judge, Allahabad in Mis cellaneous Case No. 18 of 1986. It appears that the revisionist moved an applica tion before the 1st Additional Sub-Judge, Allahabad for appointment of an Ar bitrator in the aforesaid case and moved an application under Section 41 of the Arbitration Act praying that the respondent be restrained from realising the amount from the revisionist during the pendency of the arbitration proceedings. It is undisputed fact that the matter was pending for appointment of an Arbitrator in a proceeding initiated under Section 8 of the Arbitration Act. The trial Court passed the order in an application that the petition is not maintainable and is hereby dismissed. Learned counsel for the revisionist assailed the order of the trial Court on the ground that the trial court has committed grave irregularity and has not exercised jurisdiction vested in it by not considering the application.
(2.) LEARNED counsel for the respondent submitted that since the matter was pending with respect of the appointment of an Arbitrator under Section 8 of the Act and as such no order could be passed under Section 41 of the Arbitration Act and has relied upon a decision reported in 1983 (2) ALJ 760. It has been held by the Court that during the pendency of proceeding under Section 8 of Arbitration Act, application for the appointment of receiver and for an ad interim injunction are not legally maintainable. The court has been empowered under Section 8 of Ar bitration Act, to appoint an arbitrator, Except for the appointment of the Ar bitrator, no other question can be raised before him in proceedings under Section 8 of the Act. Learned counsel for the revisionist has relied upon a decision reported in AIR 1984 SC 29. It was held that under Section 41 (b) the court has been given power to issue interim injunction. But the court has got the power to pass an order of injunction only for the purpose of and in relation to arbitration proceedings before the Court. It cannot be said that as Clause (a) of Section 41 empowers the Court to pass interim injunction the Court can pass injunction even if the condi tions of Clause (b) of Section 41 were not satisfied. Such construction will render Clause (b) of Section 41 otiose. I would like to refer the definition of reference under Section 2 of the Ar bitration Act; "reference" means a reference to arbitration, Arbitration agreement has also been defined under Section 2 of the Arbitration Act : "arbitration agreement means a written agreement to submit present or future dif ferences to arbitration whether an Arbitrator is named therein or not; Section 20 of the Arbitration Act deals with an application to be filed in Court for filing arbitration agreement and Section 8 regarding the appointment of an Arbitrator.
(3.) THESE are all the steps to be taken for appointment of an Arbitrator with reference to the arbitration clause after differences have been arisen out between the parties and then award is to be passed after taking into consideration the claims of the parties by the Arbitrator. There is no bar under Section 41 of C. P. C. to pass interim injunction. One can say on the plea that the proceeding have been initiated for appointment of an Arbitrator. Section 41 of the Act is quoted below : "41. Subject to the provisions of this Act and of rule made thereunder.- (a) the provisions of the Code of Civil Procedure, 1908 shall apply to all proceedings before the Court and to all appeals, under this Act; and (b) the court shall have, for the purpose of, and in relation to, arbitration proceed ings, the same power of making orders in respect of any of the matters set out in the second schedule as it has for the purpose of, and in relation to any proceeding before the Court: Provided that nothing in Clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters. " In case if the matter is pending for appointment of an Arbitrator before the Court, it does not mean that the court has no power in particular circumstances to give relief to the parties by way of injunction. This was never the intention of the Legislature. The interim relief can be given at any stage of the arbitration proceed ing under Section 41 of the Act, otherwise the very purpose of Section 41 would be rendered futile. There is an arbitration clause in the agreement and the differences have to be considered under the Arbitration Act so arbitration proceedings starts as soon as the reference is made to start arbitration proceeding in a Court. The ruling cited does not apply in the facts and circumstances of the case and also in view of the observations of the Hon'ble Supreme Court. It is submitted by the learned counsel for the revisionist that prayer has been made in application under Section 41 of the Arbitration Act that the respon dents be restrained from realising the amount during the pendency of the proceed ings as there was a dispute regarding. adjustment of money to be due from the respondents.;