- (1.) BY the Court: This Misc. Appeal under section 37 of Arbitration and Conciliation Act, 1996 has been filed against the order dated 6.2.2013 passed the Addl. District and Sessions Judge, No.5, Jaipur Metropolitan, Jaipur in Civil Misc. Application no. 5/2013, whereby the mandatory interim order has been passed against the appellant. The short facts of the case are that the respondent-filed an application under section 9 of Arbitration and Conciliation Act, 1996 before the District and Sessions Judge, Jaipur Metropolitan, Jaipur which was transferred to Addl. District and Sessions Judge No.5, Jaipur Metropolitan, Jaipur. Reply was filed by the present respondent stating therein that there was a power delivery agreement between the parties which was terminated on 28.12.2012 and consequently the appellant stopped the injection of power from the end of December, 2012 and E-Mail was sent to the respondent to this effect and also a notice. Earlier application under section 9 was filed by the respondent which was rejected on 28.9.2012, again the same, application was preferred. According to clause 8.2 (f) of the power delivery agreement, the respondent was under the obligation to renew the letter of credit 60 days prior to its expiry but no letter of credit was renewed till the date of termination of agreement and once the agreement has been terminated and supply has been stopped, a mandatory injunction should not have been granted by the court below. The appellant had entered into an arrangement with Rajasthan power utility for supply of power, there is no power available with the appellant to supply to respondent. It has also been submitted that under the Specific Relief Act under section 41(e), such reliefs could not be granted. In misc. petition under section 9, no mandatory injunction has been prayed for. The present respondent is getting power from the Ajmer Vidhyut Vitaran Nigam Ltd. In identical matter, co-ordinate bench has vacated the similar order. Hence any interim injunction should be vacated.
(2.) PER contra, the contention of respondent is that the matter is under consideration before the court below, all these objections could be raised before the court below. His further contention is that the time limit has not been honoured by any of the party from the initiation of the agreement. According to clause 8.2.(a), the entry for commercial operation is 4.7.2010 and letter of credit should be issued 30 days prior to the date of entry i.e 4.6.2010. Admittedly the letter of credit was issued on 16.11.2010 which was without objection accepted by the appellant. Furthermore, the respondent has granted letter of credit of Rs. 6 crores 5 lac and 325 lacs was still in the hands of the appellant till 17.2.13 only one letter of credit valued by 325 lacks was expired which was also renewed on 1.1.2013 and accepted by the appellant. Present appellant has not made default in any payment. There average billing of a month is about Rs 2 crores and admittedly the present appellant were having letter of credit of 325 lacs till 17.2.13. The present appellant has not stopped the supply of the energy. The respondent was having power supply till 2.01.2013,and contention of the appellant that they have entered into an agreement with Rajasthan power supply is not true. No such agreement has been placed on record before the court below and even on this count. No date and specification of the said agreement have been pleaded. Before termination of PDA,no notice required under the agreement was served to the respondent and all these objections and issues could be addressed by the court below. The further contention of the respondent is that arbitral tribunal has passed a final award in favour of the respondent on 14.6.2012 and just to say go bye to that award this issue has been raised by the appellant otherwise the respondent invested Rs. 8 crores and 2500 employees are working with them hence stopping of power will cause irreparable loss and balance is also in their favour whereas the present appellant will get the amount of power and the order will not adversely prejudice him and furthermore when the matter is under consideration before the court below, this appeal should not be entertained. Heard learned counsel for the parties and perused the impugned award. The facts stated suggests that condition of time which was incorporated in the power delivery agreement has not been honored by the parties and question which is involved in the matter could be considered by the court below. At present, it is not in dispute that letter of credit of Rs.325 lacs is placed with the appellant which is to be expired on 17.2.2013 and another letter of credit of Rs.325 lacs has been renewed on 1.1.2013. Hence the amount of appellant is secured and when the matter could be addressed before the court below there is no need to interfere with the impugned order and any finding of the merit would adversely prejudice the case of the parties before the court below. Hence looking to the above, this appeal is liable to be rejected. However, the contention of the appellant that matter may be heard at the earliest by the court below, the date is already fixed as 25.2.2013 but if any case the appellant wants to prepone the hearing, they are free to move for the preponement of the hearing before the court below. With these directions, the appeal is dismissed.;