This stay vacation application has been placed before this court as an unlisted date fixed matter.
According to Sri Navin Sinha learned Senior Counsel assisted by Sri Tarun Agarwal for the defendant appellant the impugned order has been passed illegally whereby the application of the defendant appellant under Section 45 of the Arbitration and Conciliation Act 1996 has been rejected. According to Sri Sinha when differences between the persons arises out of legal relationship and is considered as commercial under law in force in India the requirement under Section 45 is that the judicial authority when seized of such an action in a matter shall at the request of one of the parties refer the parties to arbitration. According to him in case the suit which has been filed for declaration of agreements as null and void is permitted to continue the very purpose of the provisions of Section 45 of the Act would stand frustrated and hence prays that further proceedings in the suit filed at the instance of the plaintiff respondents may remain stayed.
Sri Rahul Sripat learned counsel appearing on behalf of respondent nos. 1,2,3,5,6,7 and 9 has opposed the contention as referred to above by stating that Section 45 clearly provides that the parties may be referred to arbitration but not when the agreement is null and void, inoperative or incapable of being performed. His submission is that unless the Civil Court decides the Suit wherein plaintiff respondent has sought declaration of the various agreements as null and void it cannot proceed to appoint an arbitrator and as such has supported the impugned order passed by the Trial Court.
The aforesaid submissions require consideration and this is an admitted appeal.
Learned counsel for both the parties do not dispute that a temporary exparte injunction dated 30.5.2008 issued by the Trial Court is operating in the Suit no. 956 of 2008 M/s Alps Industries Ltd. and others Vs ABN Amro Bank.
In view of the aforesaid circumstances it would be appropriate that during the pendency of this appeal further proceedings in Suit no. 956 of 2008 M/s Alps Industries Ltd. and others Vs ABN Amro Bank shall remain stayed however the exparte injunction order shall remain operative till disposal of this appeal or till further order passed in this appeal.
Order Date :- 4.2.2010/Pravin Court No. - 19 Case :- FIRST APPEAL FROM ORDER No. - 244 of 2010 Petitioner :- Abn Amro Bank N.V., Represented By Mr. Saurav Kedia, Manager Respondent :- M/S Alps Industries Ltd. And Others Petitioner Counsel :- Tarun Agarwal Respondent Counsel :- Rahul Sripat Hon'ble Sanjay Misra,J.
Learned counsel for the appellant prays for and is granted two weeks time to take steps by registered post AD for service of notice on the unrepresented respondents.
Order Date :- 4.2.2010 Pravin