B.S.Chauhan, J. - (1.) The instant writ petition has been filed for setting aside the impugned order dated 7/1/2000 (Annx. 5) by which the Addl. District Judge, Bikaner has neither granted nor refused interim measures on petitioner's application under Section 9 of the Arbitration and Conciliation Act, 1996 (for short the Act).
(2.) The case has a chequered history as there are larger number of cases pending between the parties in civil and criminal courts in respect of the property in dispute. There had been claims and counter-claims regarding existence of agreement between the petitioner and respondent No. 1 for leasing, out the Lalgarh Palace, Bikaner Property has been handed over to respondent No. 2 and the said premises are being used as a Hotel. Petitioner filed a suit for specific performance before the Civil Court, Bikaner which is still pending. The arbitration clause in the alleged agreement was resorted to and the matter is seized by the Arbitral Tribunal. Petitioner filed an application under Section 9 of the Act in the Court of District Judge, Bikaner for appointing a Receiver and directing the respondent No. 1 to furnish securities etc. Respondent No. 1 filed an application under Section 151 of the Code of Civil Procedure (for short C.P.C.) praying that the application under Section 9 of the Act may not be decided at this stage for the reason that existence of the agreement and the veracity of its contents had been challenged before the Arbitral Tribunal. The Court disposed of the said application vide impugned judgment and order dated 7.1.2000 (Annex. 5) stating that as the existence and veracity of the agreement itself was under challenge, the application could not be decided at this stage. Hence this petition.
(3.) Shri S.P. Sharma and Shri M.S. Singhvi, learned counsel for the respondents have raised the preliminary objection regarding the maintainability of the writ petition on the ground that order passed under Section 9 of the Act is appealable under Section 37 of the Act. Moreso, as the suit for specific performance filed by the petitioner before the trial court and proceedings before the Arbitral Tribunal are pending, filing of application under Section 9 of the Act amounts to abuse of the process of the Court. Thus, the application was liable to be rejected on these grounds alone.;