Hon'ble Mahendra Dayal,J.
Supplementary affidavit filed on behalf of the appellants is taken on record.
Heard Mr. Asit Kumar Chaturvedi, Counsel for the appellants and learned counsel for the respondent.
The instant First Appeal From Order under Section 37 of the Arbitration and Conciliation Act, 1996 arises out of the judgment and decree dated 30.11.2012 passed by the District & Sessions Judge, Lucknow in Regular Suit No. 103 of 2013: ANS Constructions Ltd. Vs. Central Public Works Department and others, whereby learned District & Sessions Judge, Lucknow, allowed the suit partly for temporary injunction.
Appellants had awarded a contract to the respondent through an agreement of contract for making family quarters as well as other development works such as UGT, Rain Water Harvesting, Site Office, Electric Substation etc. During the period of contract, some dispute arose between the parties and as such, respondent preferred Regular Suit No. 103 of 2012 for temporary injunction under Section 9 of the Arbitration and Conciliation Act, 1996. The District Judge, Lucknow, vide impugned judgment and decree dated 30.11.2012, has allowed the suit with the following directions :
"35. This regular suit is partly allowed for temporary injunction directing to the respondent to dispose off the representation of contractor petitioner already pending before the superintending engineer within 20 days from the date, the certified copy of this order is placed before him and if the contractor petitioner is aggrieved from the decision of the superintending engineer, he may file the appeal against the decision of superintending engineers before the Chief engineer within 10 days of the decision of the superintending engineer and chief engineer shall dispose of the said appeal within 30 days from the date of presentation of the appeal. Further it is directed that in case the contractor petitioner being dissatisfied with the decision of the Chief engineer gives notice to the Chief engineer for the appointment of an arbitrator within 30 days of the decision of the chief engineer the respondent/chief engineer shall pass the suitable order on the petition of the contractor.
36. It is further directed that in case the Arbitrator is appointed by the respondents, the Contractor/Petitioner shall move an application before the Arbitral Tribunal seeking relief of temporary injunction regarding termination of the contract and encashment of the Bank Guarantee and lateron the Arbitral Tribunal shall dispose of such application for temporary injunction at the earliest and till then, Respondents/Defendants herein shall not terminate the contract agreement involved in this petition and further the Respondents shall not get the Bank Guarantee involved in this petition encashed."
Feeling aggrieved by the aforesaid order dated 30.11.2012, the appellant has preferred the instant appeal.
It has been informed by the Counsel for the parties that during the pendency of the instant appeal, in compliance of the impugned order dated 30.11.2012, an Arbitrator has been appointed and the learned Arbitrator has fixed the case for 30.8.2013.
With regards to the orders of encashment of Bank Guarantee, which was furnished along with the agreement of contract entered into between the parties as an earnest money as well as mobilization of Bank Guarantee, Counsel for the parties submits before this Court. Therefore, we are not inclined to interfere in the impugned order on this point.
However, as regards the termination of contract vide impugned decree, Counsel for the appellant submits that though the District Judge has no power or authority to terminate the contract under Section 9 of the Arbitration and Conciliation Act but the learned District Judge, while terminating the contract, exceeded its jurisdiction vide impugned order.
The aforesaid fact has not been disputed by the Counsel for the respondent.
Accordingly, the appeal is allowed partly. The impugned judgment and order dated 30.11.2012 passed in Regular Suit No. 103 of 2012 is modified to the extent that the findings recorded by the learned District Judge with regards to termination of contract is hereby set-aside. Since the matter is lingering for quite sometime, as such, we request the learned Arbitrator to look into the matter and decide the case, in accordance with law, expeditiously.
Order Date :- 8.9.2014 Muk