(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal arises against the judgement and order dated 9.3.2012 passed by the learned District Judge in Civil Misc. Application No.3/2012, whereby the application of the appellant under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as 'the Act') is dismissed.
2. The short facts are that the contract was entered into between the appellant and the respondent for widening and strengthening Sidhpur – Umra – Kakoshi Road to Sidhpur, District Patan. As per the respondent, the work was not satisfactorily completed and, therefore, they addressed the letter dated 9.1.2012 to the appellant, stating that the payment has been made, but the work is not satisfactory and, therefore, the appellant was called upon to pay an amount of Rs.1,54,15,461/-, failing which it was conveyed to the appellant that the amount may be recovered from the other outstanding amounts of the other works done by the appellant. The appellant, being aggrieved by the said action, preferred application under Section 9 of the Act before the learned District Judge being Civil Misc. Application No.3/2012. The learned District Judge found against that seeking prayer against the action of the respondent initiated by the letter dated 9.1.2012 was not tenable at law as no steps for initiation of arbitration proceeding was taken and the action/order was beyond the purview of the Act, which was for recovering amount from the dues of the other works, which were going on with the respondents. The learned District Judge, after considering the matter, has passed the impugned judgement, mainly on the premise that such an order would be beyond the purview of the Arbitration and Reconciliation Act and has ultimately rejected the application. Under these circumstances, the present appeal before this Court.
3. We have heard Mr.Sukhwani, learned Counsel for the appellant and Mr.Munshaw, learned Counsel for the respondent.
4. It is an undisputed position that the recovery as was threatened by the letter dated 9.1.2012, which was the basis of the petition, was pertaining to the other contract/works, which were going on as per the appellant with the respondent. Therefore, the aspect of prohibitory injunction or interim injunction is pertaining to the amount, which otherwise may be recoverable by the appellant from the respondent in respect of altogether a different contract. It was not a case where the appellant invoked the jurisdiction of this Court under Article 226 of the Constitution of India and prayed that recovery pertaining to one contract may not be made from another contract and, therefore, the action could be said as arbitrary, but it was a case where the jurisdiction of the Court under a particular statute was invoked. The jurisdiction of the Court under Section 9 may be invoked by any party to the contract pertaining to whole transaction of that particular contract and the scope of the relief under Section 9 cannot be expanded qua any other contract or the payment to be made pertaining to other contract.
5. Under these circumstances, we are of the view that the ultimate findings recorded by the learned District Judge that the order prayed is beyond the scope of the Act does not call for any interference.
6. Mr.Sukhwani, learned Counsel for the appellant lastly contended that if the appellant resorts to any other remedy, it may not be said that the same is concluded by the present order. We find that the submission is misconceived inasmuch as the scope of the present appeal before this Court as well as the application before the learned District Judge was pertaining to the power under Section 9 of the Act and, therefore, if any other remedy is available to the appellant, the appellant may resort to and at that stage, the rights and contentions of both the sides shall remain open as may be available in law, but if the application before the learned District Judge was not competent beyond the scope of Section 9 of the Act and as observed by us, the order of the learned District Judge does not call for any interference and we need not express any further view on the said aspect.
7. Hence, the appeal is meritless. Therefore, dismissed.
(Jayant Patel, J.) (C. L. Soni, J.) vinod