Decided on November 28,1996


Cited Judgements :-



B.M.Mitra, J. - (1.)-The present revisional application is directed against order No.6 dated 11.10.96 passed by the 2nd Bench of City Civil Court at Calcutta in T.S. No. 2831 of 1996. At the motion stage a debate has cropped rip as to the maintainability of the revisional application against the impugned order and the court has given its anxious consideration after giving due hearing to both the parties at length about the maintainability of the revisional application.
(2.)This court has been apprised that this point has not been thrashed before as it relates to the impugned order arising out of the Arbitration and Conciliation Act, 1996 which came into effect on 25.1.96. As such, It has been a common submission of both the parties that the said Act will apply and the provisions of the same will govern the proceedings including interim proceedings. Section 85 of the said Act provides for repealing provisions and it has been specified there that the Arbitration Act of 1940 will stand repealed. The Impugned order has been passed on a parent application without any nomenclature and from the perusal of the prayer of the same it appears that alternative prayers were made in the said application, namely, discharge of the Receiver or allowing the petitioner to run the taxi under the Receiver with such conditions as the court may deem fit.
(3.)In that view of the matter, the controversy boils down as to what should be the nature of the application. In order to assess the nature of the application, the prayers are required to be perused and the prayers themselves, namely, the second alternative amply reveals that it is a prayer for interim order from the court with regard to the vehicle in question. Be that as it may, attention of this court has been drawn in extenso with regard to the provisions of section 9 of the Arbitration and Conciliation Act, 1996. This court was concerned with clause (ii) to section 9(a) of the said Act which begins with a prefix, namely, for an interim measure of protection in respect of the following matters may be taken by the court which are catalogued in clauses (a) to (d) of section 9(ii) of the said Act. The court is made to ponder over the proposition used in the expression "interim measure" by insertion of "an" and, at the same time, a catena of matters has been elicited thereunder. The expression used is in the midst of pendency of an arbitral proceeding in between making of the arbitral award and endorsement in accordance with section 36. Therefore, the expression "an" is one of the alternatives and it has to be rated as in the midst of possibility of many during the pendency of an arbitral proceeding as indicated in section 9 itself. This court is required to construe the etymological significance of any expression used in terms of grammatical construction or etymological significance keeping in view that the presumption about the legislative wisdom also has knowledgeability about the user of any expression after judging it from all possible aspects. It appears that one of the many interim measures during the pendency of such proceeding as aforesaid has been catalogued in the catena of illustrations of clauses (a) to (d) of section 9(ii) of the said Act and clause (e) provides for such other interim measures of protection as may appear to the court to be just and convenient. On a plain reading of the comprehensive conspectus of section 9(ii) itself, it appears that apart from comprehending that the given situation as forecast in clauses (a) to (d) covered by section 9(ii) of the said Act, the aforesaid section tends to encompass within its ambit even such other interim measures which may appear to the court to be just and convenient. It obviously wants a conclusion to be drawn that whatever is considered necessary for protection of the property in dispute by way of Interim measures, the same cannot be limited by exhaustive enumeration but also by illustrative adumbration as forecast in clause (e) conferring a provision to take any interim measure for the protection of the property if it is considered to be just and convenient there an element of subjectivity comes into the play in exercise of discretion by the court and that is why that has been attempted to be covered by an illustrative and omnibus amplitude and also to be limited by exhaustive limitation being covered by clauses (a) to (d) of section 9(ii) of the Act. It is salient to refer to section 37 in Chapter IX of the Act which provides for appealable orders and section 37(1)(a) provides for granting or refusing to grant any measure under section 9. Section 37(1)(a) of the Act does not reflect the projection of truncated portion of section 9 but it tends to cover section 9 in its entirety. There is no doubt that clause (ii)(e) of section 9 is very much within the ambit of section 9 and if section 9 is not capable of being split up or fragmented of if it is to be viewed as a comprehensive genus then any species of orders coming under section 9 of the Arbitration and Conciliation Act, 1996 becomes appealable.

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