Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Existence Of An Arbitration Agreement Is A Sine Quo Non For Invoking The Jurisdiction Of The Court U/s 9 Of The Arbitration & Conciliation Act 1996
JUDGEMENT TITLE : Raj Kumar Vs. Union Of India & Others On 16/02/2009 By Allahabad High Court
CASE NO : FIRST APPEAL FROM ORDER NO. 753 OF 2008
CORAM : Hon'ble Sheo Kumar Singh,J. And Hon'ble Pankaj Mithal,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Heard Sri J.S. Pandey, Learned Advocate In Support Of This Appeal And Sri Mithilesh Chandra Tripathi, Learned Advocate Who Appears For The Union Of India.
Challenge In This Appeal Is To The Order Passed By The Learned District Judge, Agra Dated 29.2.2008 By Which Application Filed By The Appellant Under Section 9 Of The Arbitration And Conciliation Act, 1996, Has Been Rejected.
There Is No Dispute About The Facts Which Are As Under :-
The Respondents Issued An Auction Notice Dated 19.5.2006 For Awarding A Contract For Collection Of Parking Fee At Amar Singh Gate, Agra Fort, Agra For The Year 2006-07. The Auction Took Place On 29.5.2006. In The Auction Appellant Was The Highest Bidder At Rs. 14 Lacs. Therefore, Under The Terms And Conditions Of The Auction He Was Directed To Deposit 50% Of The Auction Amount And Furnish Security To The Tune Of 20% Of The Auction Amount. The Tender Notice In Clause (v) Specifically Provided That The Principle Director, Defence Estate, Central Command, Lucknow Is The Final Authority To Accept Or Reject The Bid Without Assigning Any Reason Whatsoever. The Bid Of The Appellant Was Rejected And A Fresh Auction Was Conducted On 17.7.2005 In Which The Bid Of Respondent No.4 Was Accepted And He Was Granted The Contract.
In The Above Factual Background, The Appellant Applied To The Court Under Section 9 Of The Arbitration And Conciliation Act, 1996 (in Short Hereinafter An Act) For Interim Protection That The Respondents Be Restrained From Settling The Contract With Any Third Party And That The Contract Be Settled Only In Favour Of The Appellant.
The Court Below In Refusing The Interim Protection By The Impugned Order Clearly Held That The Bid Of The Appellant Was Never Accepted As Per Terms Of The Auction Notice And, Therefore, He Has No Vested Right To Claim That The Contract Be Settled With Him Alone. The Appellant Has Participated The Subsequent Auction Impliedly Agreeing To The Order Of Rejection Of His Earlier Bid. We Do Not Find Any Fault With The Reasoning So Given In Rejecting The Application Of The Appellant By The Court Below.
Besides The Merit, The Application Of The Appellant Under Section 9 Of The Act, Was Not Even Maintainable. Section 9 Of The Act Permits A Party To Apply For Interim Protection Before Or During Arbitral Proceedings Or At Any Time After The Making Of The Arbitral Award But Before It Is Enforced. Thus, An Application Under Section 9 Can Be Made At Any Of The Following Three Stages I.e. (i) Before The Arbitral Proceeding; (ii) During The Arbitral Proceeding; And (iii) After The Award But Before The Enforcement Of The Arbitral Award. The Expression "before Or During Arbitral Proceeding Or At Any Time After The Making Of The Arbitral Award But Before Its Enforcement" Used In Section 9 Of The Act Clearly Indicates That The Existence Of An Arbitration Agreement Between The Parties Is A Sine Quo Non To The Maintainability Of Such An Application. According To Section 7 Of The Act Arbitration Agreement Means An Agreement In Writing By Which The Parties Agree To Refer Certain Disputes To Arbitration.
In The Instant Case, Admittedly, No Agreement In Writing Was Ever Entered Into Between The Appellant And The Respondents In Pursuance Of The Auction Which Was Said To Have Been Conducted On 29.5.2006. No Such Arbitration Agreement Has Even Been Pleaded In The Application Moved Under Section 9 Of The Act Which Has Been Filed As Annexure 6 To The Affidavit In The Present Appeal. Moreover, There Are No Pleadings To The Effect That The Appellant Had Any Intention To Draw Arbitral Proceedings.
In View Of The Aforesaid Facts And Circumstances, The Power Under Section 9 Of The Act Cannot Be Invoked, First As There Is No Manifest Intention On Part Of The Applicant/appellant To Invoke The Arbitration Clause And To Take Recourse To Arbitration Proceeding And Secondly, As There Does Not Exist Any Agreement Containing An Arbitration Clause.
The Claim Of The Appellant For Interim Protection Is Only Based On His Highest Bid Which Was Not Even Accepted By The Authority Concern And Without There Being Any Arbitral Agreement. Thus, The Claim Under Section 9 Of The Act Was Not At All Maintainable And Therefore, Also The Court Below Committed No Error In Rejecting The Same.
On These Facts, Neither On The Merits Of The Appellant's Claim Nor Otherwise This Court Feels That Claim Of Appellant Can Be Said To Be Maintainable Under Section 9 Of The Act And If That Has Been Rejected Then This Court Cannot Take Any Exception To It. Remedy Of The Appellant Lies Elsewhere And Therefore, No Relief Can Be Given In This Appeal.
For The Reasons Given Above, This Appeal Fails And Is Dismissed.

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