S.K.Mukherjee, J. - (1.) THE present Revisional application arises out of orders rejecting the plaintiffs application for appointment of Receiver and Injunction as also an application for mandatory injunction. THE plaintiffs and the defendants in the suit are owners and developers/promoters respectively of the disputed property at 297, Jodhpur Park, Calcutta.
(2.) THE agreement dt. 169.87 between the said parties provided, in substance, for delivery of flats to the plaintiff rights of the defendants to sells out the other flats in the said premises and to recover moneys on the basis of the agreement from the plaintiffs according to the measurement of the flats delivered to them. THE agreement contains an arbitration clause and the suit in question filed under section 20 of the Arbitration Act for reference of the disputes between the parties to the arbitration. During pendency of the said application before the trial court an application under section 41 of the Arbitration Act had been made for the aforesaid reliefs. THE trial court disposed of the said two applications by the impugned orders, inter alia, directing the maintenance of status quo as regards the properties which stood modified by the impugned order of the lower appellate court by imposition of an injunction restraining the parties from changing the nature and character of the suit property. THE present revisional applications are at the instance of the plaintiffs and are directed against the said two orders. It is an admitted position that the plaintiffs have been possessing one flat and are claiming two more flats in terms OS the agreement 'with the defendants/opposite parties, who are the developers. The defendants, however, have resisted the claim of the plaintiffs on the ground of non-payment of money in terms of the agreement between the parties. In course of the hearing of the revisional applications,we have been informed that statements of claim have been filed before the Arbitrator and on behalf of the opposite parties it has been contended that such claims are merely financial claims and do not have anything to do with possession of the flats in question. On that basis, on behalf of the said opposite parties, the prayer for interim reliefs in terms of section 41 of the Arbitration Act as made before Court have been sought to be resisted on the ground that the possession now claimed is not the subject matter of reference before the Arbitrator and ac such the Court below and this Court have no jurisdiction to grant prayers for injunction or receiver relating to or over the disputed flats, such relief being not in aid of substantive relief in the arbitration proceeding.
(3.) WE, however, are not inclined to accept the propriety of the aforesaid submission, Section 31(b) of the Arbitration Act vests the Court jurisdiction to make orders in respect of any of the matters set out in the second schedule for the purpose of and in relation to arbitration proceedings. As per clause 4 of the second schedule, interim injunction and appointment of Receiver are some of such matters. Power of the Court in session of proceeding under the Arbitration Act to grant injunction or make orders for appointment of Receiver cannot, therefore, be disputed. On the basis of the ratio propounded in the decision of the Hon'ble Supreme Court in the cast of M/s. H. M. Kamaluddin Ansari and CO. V. Union of India and Others reported in AIR 1984 SC 29, the orders under section 41 clause {b) must relate to the 'subject matter of the Arbitration proceeding', as distinct from subject matter of reference on which emphasis has been laid on behalf of opposite parties to justify their resistance to the plaintiff's prayers, which must mean the disputes referred to arbitration, "subject matter" as stated in the. Shorter Oxford English Dictionary, Third Edition, means "A thin; affording matter for action of a specified kind". In other words, in the present context, it means a matter or thing in relation to which or in connection wherewith the arbitration proceeding arises. The disputes which constitute the subject matter of reference must relate to the said subject matter of arbitration proceeding. Applying such ratio, the flats in the present cast over which the interim orders have been asked for, constitute the subject matter of arbitration proceeding. The Court, therefore, has full power to make orders relating to injunction or Receiver over such flats. Since in the' instant case, on conclusion of the arbitration proceedings necessity may arise for the court to make orders for handing over of the possession of the flats such possession must remain with the court till the conclusion of the arbitration proceedings. The provisions of order XL Rule 1 of the Code of Civil Procedure apply to the present proceedings in terms of clause (a) of section 41 of the Arbitration Act and we find, on the materials in the present case, and for the reasons as mentioned hereinabove that it is just and convenient to appoint Receiver for holding possession of the flats on behalf of the Court till the disposal of the flats on behalf of the Court till the disposal of the arbitration proceedings. For the aforesaid reasons again, the argument of Mr. Chowdhury to the effect that the interim relief is not in aid of final relief becomes unsustainable. The case cited by him viz Orissa Mining Corporation v. Rowley, reported in AIR 1977 SC 2014 becomes distinguishable on facts as the reference was made by Court in specific disputes and not in general terms.;