- (1.) ALTHOUGH we have passed separate orders in this writ peti tion, yet we are agreed that Section 9 of the Arbitration and Conciliation Act, 1996 applies also to the proceedings under Part II of the Act and hence interim relief can be granted by the Civil Court, pending the arbitration proceedings.
(2.) HOWEVER, the Forum for filing an application under Section 9 of the Act is not the High Court but the civil Court. The petition is disposed of. JUDGMENt M. Katju, J.- Heard learned counsel for the petitioner, Sri Rakesh Kumar learned counsel for the respondents No. 3 and 4, as well as Sri Mohd. Isa Khan learned counsel for the respondent No. 1. 5. Without going into the merits of the case we are of the opinion that Section 9 of the Arbitration and Conciliation Act, 1996 which provides for interim measures during arbitral proceedings applies also to provision under Part II of the Act. No doubt Section 2 (2) of the Act states that Part I applies where the place of arbitra tion is in India and Section 9 is in Part I of the Act, but it is a settled principle of interpretation that in construing statutes we must see the scheme of the Act, the context, the object etc. 6. A challenge has been made to Sec tion 45 of the Act, but we are of the opinion that the Court should endeavour to uphold the constitutionality of a provision even if for that purpose we have to give a strained interpretation, rather than put ting an interpretation which makes the statute unconstitutional by taking its plain meaning. In our opinion if Section 9 is treated as inapplicable to part II it will make Section 45 too harsh. The purpose of Section 9 is to give interim protection during arbitration proceedings. In our view interim protection under Section 9 can be given by the Court in all kinds of arbitration proceedings, even thereunder Part II, otherwise irreparable loss may be caused. 7. In the circumstances we dispose off this petition with the liberty to the petitioner to move an application under Section 9 of the Act to the Court con cerned which will decide the same in ac cordance with law and in the light of obser vations made above. 8. S. L. Saraf, J.-Heard learned counsel for the parties. 9. The present petition relates to a matter which is essentially a civil dispute between petitioner No. 1 and a foreign collaborator. The petitioners had entered into an agreement with respondent No. 2, inter alia for transfer of technology in respect of certain two wheeler vehicles. The dispute between the parties as per the necessary or expedient for the purpose of ob taining full information or evidence: (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protec tion as may appear to the Court to be just and convenient; and the Court shall have the same power for making orders as it has for the pur poses of, and in relation to, any proceed ings before it. " 12. Section 45 of the Arbitration and Conciliation Act, 1996 reads as follows: "power of Judicial authority to refer parties to arbitration-Notwithstanding anything con tained in Part I or in the Code of Civil Proce dure, 1908 (V of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to ar bitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. " 13. A reading of the above provisions makes it abundantly clear that Section 9 of 1996 Act read with Rule 23. 2 of the I. C. C. Rules empowers the Civil Court to pass orders for interim relief. Non-obstante clause of Section 45 does not exclude the powers of Civil Court to grant interim relief. Non-obstante clause is not an impedient but is an enabling provision authorising the judicial authority to refer the parties to arbitration without restrict ing the powers of Civil Court to grant interim relief under Section 9 of the Act. Rule 23. 2 of the I. C. C. Rules specifically lays down that before the file is transmitted to the Arbitral Tribunal in appropriate circumstances, even thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures. The substantial and ultimate relief can only be resolved by the arbitra tion of International Chamber of Com merce. However, it is made clear that the above observations are purely obiter and the Court is expressing no opinion as to the applicability, validity or the scope of the aforesaid provisions. 14. Peculiarly enough, without resorting to the above mentioned procedure the petitioners have filed writ peti tion praying for a declaration that Section 45 of the Arbitration and Conciliation Act, 1996 be declared ultra vires, unconstitu tional and bad in law. No other relief was sought for in the writ petition. At the be hest of the Court a consequential relief was sought for and allowed to be added as follows: "issue a writ of mandamus commanding opposite party No. 2 not to act in violation of the agreement which is the subject-matter of agree ment between the parties. " 15. Obviously, the added relief sought for is the relief against the private party asking for a direction from this Court against respondent No. 2 not to act in violation of the agreement. Such a relief is purely a civil matter arising out of the arbitration proceedings between the private parties and the same cannot be granted by the Court exercising power under Article 226 of the Constitution of India. 16. The main relief sought for in the writ petition is purely a declaratory relief. It is well settled that Article 226 should not be used and was not intended to be used as a medium or means for declaratory orders or declaratory reliefs declaring Acts and orders invalid even though no relief could be granted to the petitioner. The Court should not issue writs of con solation or writs propounding theories. That is not the function, scope and pur pose of Article 226. Nor should it be utilised for subsequent claims in future legal proceedings. (See AIR 1966 Calcut ta, 601 at page 603 ). 17. The Allahabad High Court has observed in a decision reported in AIR 1953 Allahabad, 477 at page 479 that this Court has consistently taken the view that the powers of issuing writs, orders or direc tions should not be utilized for giving what is in essence a declaratory relief. 18. Further, Supreme Court in AIR 1951 SC 41, it has been held that advisory opinion or declaratory judgment on the constitutionality of legislation cannot be given under Article 226 of the Constitu tion of India. 19. Summing up the above discus sion, we hold that: (a) the present petition" is totally miscon ceived and no order can be passed on this peti tion. (b) the dispute in the present writ petition is purely private dispute between petitioner-No. 1 and foreign collaborator, referable to the, ar bitration of International Chamber of Com merce and no writ of mandamus against a private party arbitrating before the Internation al Chamber of Commerce, can be issued by this Court exercising powers under Article 226 of the Constitution of India; and (c) Article 226 is not intended nor is the forum for passing declaratory orders or declara tory reliefs. 20. In view of above, the present writ petition stands dismissed in limine. Petition dismissed. .;