PUSHPENDRA SINGH BHATI,J. - (1.) The matter comes up on an application for recalling/review of the order dated 16.09.2019 passed by this Court in S.B. Civil Misc. Appeal No.398/2004, whereby this Court had dismissed the Civil Misc. Appeal against the proceedings under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act of 1996) on account of the fact that final arbitration award has been passed on 31.01.2006.
(2.) Mr. K.V. Vishwanathan, learned Senior Counsel assisted by Mr. Anil Kaushik and Mr. Sajjan Singh Rajpurohit, for the applicant-appellant has relied upon the precedent laws laid by the Hon'ble Apex Court in Ultratech Cement Limited Vs. Rajasthan Rajya Vidyut Utpadan Nigam Limited reported in (2018) 15 Supreme Court Cases 210, the relevant portion whereof reads as follows: "7. As to whether the orders passed by the different Courts, which culminated in the two orders, extracted hereinabove, dated 13.12.2013 and 14.03.2014, would continue even after the passing of the arbitral award, in our considered view, would depend on the nature of the prayer made by the Appellant, when the application Under Section 9 was filed, before the concerned Court. We have extracted hereinabove the prayer made by the Appellant in its section 9 application. A perusal thereof reveals, that the interim injunction was sought "...till adjudication of the dispute arises between the parties by appointing the arbitrator by the applicant as per Clause 9 of the agreement dated 15.10.2004 signed by and between the applicant and the Respondent, passing of the award by the arbitrator, and also till enforcement of the said award...". It is therefore apparent, that the interim prayer made by the Appellant Under Section 9 of the Act in the very first instance was till the enforcement of the award. It is undoubtedly apparent from a perusal of Section 9 of the Act, extracted above, that the enforcement of the award can be effected only Under Section 36 of the Act. The aforesaid stage has not yet emerged. The stage presently is of the interregnum, between the passing of the award, and the enforcement of the award Under Section 36 of the Act. 8. We are of the view, that the prayer made by the Appellant clearly included the period, after the pronouncement of the award by the arbitral Tribunal. In the above view of the matter, it is not possible for us to hold, that the proceedings pending before this Court, have been rendered infructuous. In any case, it is now imperative for us to determine whether or not the impugned interim order, should continue till the proceedings Under Section 34 of the Act (presently pending before the District Judge) are concluded. We are satisfied in directing, that the Appellant shall, with effect from the date of the commencement of the arbitral award, pay for the fly ash taken by it from the Respondent at the rate of Rs. 245/- per metric tonne (i.e., in consonance with the arbitral award), till the determination of the proceedings Under Section 34 of the Act. We however clarify, that in case, for any reason, the arbitral award is set aside or modified, as prayed for by the Respondent - Nigam, the Appellant would be liable to pay the higher amount, as the Respondent would have been able to procure, as disclosed by the auction already held in 2011 (for the period with effect from 2012). Likewise, in case the Appellant before this Court succeeds, and is held to be entitled to pay a lesser amount, the payment with effect from 2012 would be regulated by the said determination."
(3.) Learned Senior Counsel for the applicant-appellant has further relied upon the precedent law down by the Hon'ble Apex Court in Indus Mobile Distribution Private Limited Vs. Datawind Innovation Private Limited reported in (2017) 7 Supreme Court Cases 678, relevant portion whereof is reproduced hereunder: "19. A conspectus of all the aforesaid provisions shows that the moment the seat is designated, it is akin to an exclusive jurisdiction clause. On the facts of the present case, it is clear that the seat of arbitration is Mumbai and Clause 19 further makes it clear that jurisdiction exclusively vests in the Mumbai courts. Under the Law of Arbitration, unlike the Code of Civil Procedure which applies to suits filed in courts, a reference to "seat" is a concept by which a neutral venue can be chosen by the parties to an arbitration clause. The neutral venue may not in the classical sense have jurisdiction - that is, no part of the cause of action may have arisen at the neutral venue and neither would any of the provisions of Section 16 to 21 of the Code of Civil Procedure be attracted. In arbitration law however, as has been held above, the moment "seat" is determined, the fact that the seat is at Mumbai would vest Mumbai courts with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties." ;