I.A.ANSARI, J. - (1.) This is an appeal under Section 37(1)(a) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act of 1996') against the order, dated 24.02.2009, passed, in Misc.(Arbitration) Case No.103/2009, by the learned District Judge, Kamrup.
(2.) The material facts and various stages, which have given rise to the present appeal, may, in brief, be set out as under: (i) The applicant-respondent herein, which is a company incorporated under the Companies Act, 1956, filed an application under Section 9 of the Act of 1996, the case of the applicant-respondent being, in brief, thus: (a) The opposite party (i.e., the appellants herein) are companies, registered under the Companies Act. The appellants approached the respondent to enter into a joint venture agreement with the respondent on the basis of their representation that the appellants were joint owners of the suit land, they had been in actual physical possession of suit land, some portions of the suit land were under the possession of a third party, who has a small marble godown under the appellants, but is willing to vacate the same and hand over the possession thereof to the appellants. The respondent has taken a decision to develop the suit land into a multi-purpose complex by way of joint venture agreement as aforesaid. In this joint venture, the share of the appellants would be 45% of the constructed area and the sole obligation and responsibility of the appellants would be to give vacant possession of the suit land to the respondent for the purpose of construction thereon. A concluded contract, thus, came into existence between the respondent and the present appellants. On 15.06.2006, the respondent, on the one hand, as developer, and one Mr. PD Deorah, the common Director of the two appellant companies, as owner, executed an agreement, in writing, in the form of Term Sheet, whereby and whereunder the parties had finalised the broad terms and conditions of the joint venture for construction of multipurpose complex on the suit land. By means of four cheques, applicant-respondent, in discharge of its obligation under the term sheet, dated 15.06.2006, paid rupees twenty lakhs in favour of the present appellants as part payment of the security deposit. The payment, so made, was acknowledged by the appellants. On 15.06.2006, the respondent also paid a further sum of rupees five lakhs, by two cheques, in favour of the appellants, towards part payment of cost for obtaining sanction in terms of the agreement. In or about first week of December, 2007, the respondent was informed by the appellants that Guwahati Metropolitan Development Authority had issued no objection certificate to the appellants for construction over the suit land. Soon after issuance of the NOC, appellant No.2, under its letter, dated 04.10.2008, requested the respondent to make further disbursement of a sum of rupees fifteen lakhs as shifting charges with a request to transmit the same to their bank account. Pursuant to such instructions given by the appellants, the respondent paid a sum of rupees fifteen lakhs to the appellants by way of a cheque on 08.01.2008. On 04.03.2008, a Memorandum of Understanding was signed between the parties concerned, whereunder the appellants acknowledged the payment received from the respondent under the agreement, dated 15.06.2008, and also agreed to take necessary steps for removal of the said marble godown. The appellants also, in terms of the Memorandum of Understanding, were to get removed and vacated 7/8 sheds standing on the Zoo Road, which fall outside the suit land. (b) By a facsimile message, dated 01.07.2008, the appellants demanded a sum of rupees twenty one lakhs from the respondent on the ground that the occupants of the suit land had agreed to vacate the occupied portion of the suit land in favour of the appellants for consideration of rupees twenty one lakhs. Believing in the representation so made, the respondent forwarded a cheque of rupees twenty-one lakhs under a covered letter, dated 26.07.2008, in favour of the appellants No.2. By their letter, dated 23.08.2008, the appellants confirmed that the marble godown had been vacated and requested the respondent to commence construction on the suit land. In the meantime, acting on the representation made by the appellants, the respondent has started mobilising its men and machinery for the purpose of commencement of construction on the suit land. Under the terms of the contract, concluded between the parties, the contract is specifically enforceable. In terms of the agreement, dated 15.06.2006, the respondent has performed all its obligations and is ready and willing to perform its further obligations under the contract except performance of those terms and conditions, which have been waived by the appellants. However, while the respondent was taking necessary steps for commencing the work and had, in the meanwhile, incurred even additional expenditure of rupees twenty seven lakhs for preparation of sanction plan, etc., the respondent's men and agents, deployed on the suit land, found that some unknown men and agents of a third party were visiting the suit land and were enquiring about the project. On 21.02.2009, some men, along with engineer, visited the suit land and requested that they be allowed to take measurement of the land. On being confronted by the respondent, the said men informed that the appellants were taking steps to sell the suit land by way of an outright sale to a third party. Further enquiry, in this regard, revealed that the said men and agents of a third party had been authorised by the appellants to take measurement of the said plot. The respondent's men and agents, then, lodged a complaint at Dispur Police Station. (c) Under the agreement entered into between the parties, there is provision for arbitration. The respondent has been advised to take steps for referring their dispute to arbitration in terms of the arbitration clause. The agreement, dated 15.06.2006, contains an express negative covenant, whereby the appellants, as owners of the suit land, have expressly agreed not to enter into any agreement or understanding with any third party with regard to the suit land after execution of the agreement, dated 15.06.2006. (ii) Having formed the view that the respondent had been able to make out a prima facie case for obtaining interim order of injunction, the balance of convenience was in favour of granting ad-interim order for protection of the suit property and that irreparable loss would ensue if interim protection, as prayed for, was not granted and that compensation, in terms of money alone, would not afford adequate relief to the respondent, the learned District Judge passed an order, on 24.02.2009, for issuance of notices to the appellants herein directing them to show cause as to why the respondent company's prayer shall not be allowed. This apart, as an interim measure, for protection of the property, the learned District Judge directed, on 24.02.2009, the appellants herein not to create, until further order, any third party interest over the suit property and maintain status quo over the suit land as on that day, i.e., on the date of passing of the order aforementioned. Aggrieved by the order,dated 24.02.2009, aforementioned, the appellants have preferred this appeal.
(3.) I have heard Mr. K.N. Choudhury, learned Senior counsel, appearing on behalf of the appellants, and Mr. S. Shyam, learned counsel, for the applicant-respondent.;