- (1.) THE present appeal has been filed by the appellant-applicant under Section 37(1)(a) of the Arbitration and Conciliation Act, 1996(hereinafter referred to as the said Act),challenging the order dated 23.2.2010 passed by the Additional District Judge No.1, Ajmer,(hereinafter referred to as the court below)in Civil Misc. application No.124/2009, whereby the court below has dismissed the application of the appellant under Section 9 of the said Act, seeking an interim protection pending the arbitration proceedings.
(2.) IT appears that the appellant-applicant was the "AA" Class Registered Contractor with the department of P.W.D. Ajmer. Some disputes appear to have arisen between the appellant and the respondents in respect of the work order dated 23.12.2006, and, therefore, the appellant filed an application under Section 9 of the said Act, seeking interim protection pending arbitration proceedings by filing Misc. Application being No. 124/2009. Similar application being no. 123/09 was also given in respect of the other work order. The court below rejected both the applications by the common impugned order. It further appears that in the said applications, the appellant-applicant had prayed for restraining the respondents from passing any order for the recovery of the amount for penalty in respect of the said work orders pending the arbitration proceedings. The said applications were resisted by the respondents and it was further contended that the bank had already issued two demand drafts in favour of the department. The respondents also appeared to have given an undertaking before the court below to the effect that the respondents shall repay the said amounts if the appellant-applicant succeeds in the arbitration proceedings. Taking into consideration the said fact, the court below dismissed both the applications of the appellant-applicant filed under Section 9 of the said Act by the impugned order. The learned counsel Mr. Saxena for the appellant submitted that the amount lying with the respondents be treated as security deposit and the same be refunded to the appellant if ultimately he succeeds in the arbitration proceedings before the arbitrator. He also submitted that the said amount is liable to be refunded to the appellant as at present there is no liability cast on the appellant. In support of his submissions, Mr. Saxena has placed reliance upon the judgment of Supreme Court in State of Karnataka v. Shree Rameshwara Rice Mills Thirthahalli , AIR 1987 Supreme Court 1359 and also of this Court in State of Rajasthan and others V. Nathu Lal, AIR 2006 RAJASTHAN 19. However, the learned Dy. Govt. Counsel Mr. Hari Barath, for the respondents has submitted that the court below has passed the impugned order after taking into consideration the undertaking given by the respondents and the same does not call for any interference. Having regard to the submissions made by the learned counsel for the parties and to the impugned order passed by the court below, it appears that the applications of the appellant-applicant filed u/Sec. 9 for interim protection have been dismissed by the court below considering the fact that the demand drafts with regard to the recovery amount were already issued by the bank in favour of the respondents, and the respondents had already submitted the undertaking to the effect that if the appellant-applicant ultimately succeeds in the arbitration proceedings, the said amount shall be refunded to the appellant. The court below has also held that no irreparable loss which could not be compensated in terms of money was going to be suffered by the appellant-applicants if the relief as prayed for in the application was not granted. The Court does not find any illegality or perversity in the impugned order passed by the court below and hence the present appeal deserves to be dismissed. The judgments relied upon by the learned counsel Mr. Saxena have no application to the facts of the present case and, therefore, not discussed in detail. The appeal being devoid of merits,is dismissed accordingly. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. ;