- (1.) INSTANT intra -court appeal has been filed assailing order of learned Single Judge dt. 23.09.2013 dismissing writ petition filed by appellant -petitioner against order of learned trial Judge dt. 05.09.2013 refusing to grant interim protection prayed in the pending application filed u/S. 9 of Arbitration and Conciliation Act, 1996 ("Act, 1996"), however, was of the view that the matter could be heard only after notices being served upon defendants -3 and 4 and as informed to this Court, pleadings are complete and the application filed u/S. 9 by the petitioner appellant is coming up before the learned trial Judge for hearing on 23.11.2013. The appellant -petitioner as alleged herein entered into agreement to sell dt. 25.10.2012 with respondents -2 -5 to purchase subject property and certain rights were conferred upon to construct, book flats to be constructed over the subject property, receive earnest money against such bookings and apply for map approvals before various authorities and marketing as well for the said project to be developed over the property in question. It appears that some dispute arose between the parties arising from the agreement executed between the parties, to safeguard their interest in the meanwhile before the proceedings by the Arbitral Tribunal could be initiated, application came to be filed seeking interim relief by the petitioner -appellant u/S. 9 of the Act, 1996 before the learned trial Judge. However, the defendant No. 1 and 2 appeared and after hearing the parties the learned trial Judge was not inclined to grant interim relief, prayed for and observed that the matter may be heard after respondents No. 3 and 4 are served. It has been informed to this Court that after the parties being served written objections have been filed and the matter has riped and coming up before the learned trial Judge for hearing on application u/S. 9 of the Act on 23.11.2013.
(2.) THE appellant -petitioner being dissatisfied with the ad -interim protection not being granted by the learned trial Judge vide order impugned dt. 05.09.2013 approached to this Court by filing writ petition invoking jurisdiction of this Court u/Art. 227 of the Constitution. The learned Single Judge after hearing counsel for petitioner dismissed the writ petition vide order dt. 23.09.2013 taking note of the fact that since the application was filed pending statutory notice for appointment of arbitrator u/S. 11 of the Act, the application filed u/S. 9 of the Act was premature and not maintainable. However, the learned Single Judge in the facts of the instant case was not inclined to exercise its extraordinary jurisdiction u/Art. 227 of the Constitution particularly in a case where the learned trial Judge has not expressed its view on the basis of the material which came on record not being inclined to grant ad -interim protection pending application vide its order dt. 05.09.2013.
(3.) COUNSEL for appellant submits that the finding recorded by the learned Single Judge in its order impugned 05.09.2013 holding that the application u/S. 9 of the Act pending statutory notice of thirty days was not maintainable, is wholly erroneous and contrary to law and requires interference by this Court. Counsel for respondent also agrees that as regards maintainability of application u/S. 9 of the Act, it is not dependent upon statutory notice seeking appointment of arbitrator u/S. 11 of the Act but raised a preliminary objection that the order refusing to grant ad -interim protection pending application u/S. 9 of the Act, is appealable u/S. 37(1)(a) of the Act and further submits that if writ petition is filed u/Art. 227 of the Constitution, that will not grant right to appeal and in support of submission placed reliance upon judgment in 2010(2) WLC 500.;