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Tuesday, June 30, 2015

The Writ Petition is directed against the Award passed by the 1st respondent, the Andhra Pradesh Micro and Small Enterprises Facilitation Council, Hyderabad on 05.10.2013 in the proceedings initiated before it by the 2nd respondent company.

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

W.P. No.13639 of 2014

25-06-2015

State Water and Sanitation Mission,  Erramanzil, Hyderabad rep. by its Project
Director. .Petitioner

The A.P. Micro and Small Enterprises Facilitation Council, Hyderabad &
another..Respondents

Counsel for the petitioner: GP for Panchayat Raj & Rural
                             Development (TG)

Counsel for the Respondents : Sri S. Dwarakanath

<GIST:

>HEAD NOTE:  

? Cases referred

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            
WRIT PETITION No. 13639 OF 2014  
O R D E R:
      The State Water and Sanitation Mission is the petitioner
herein.  The Writ Petition is directed against the Award passed by
the 1st respondent, the Andhra Pradesh Micro and Small
Enterprises Facilitation Council, Hyderabad on 05.10.2013 in the
proceedings initiated before it by the 2nd respondent company.
      The 2nd respondent company is a small-scale industry.  It
has filed a claim petition before the 1st respondent initially seeking
Rs.47,24,823/-.  It is the case of the 2nd respondent that pursuant
to the e-procurement for work, supply, delivery, installation and
commissioning of stand alone water purification systems at various
government schools in rural areas, its bid was accepted and the
necessary agreement for execution of the work in five districts has
been entered into by and between the parties on 26.02.2010. It is
the case of the 2nd respondent that in spite of the execution of the
works, it has not been paid for the works so turned out.  It is
therefore, claimed by the 2nd respondent that an amount of
Rs.33,29,881/- was, in fact, due and payable by the petitioner
herein and since there was an inordinate delay in settling the
payments, interest of Rs. 13,94,942/- was also claimed thereon,
thus totalling to Rs.47,24,823/-.
      The 1st respondent has been established by the State
Government, in exercise of the power available under Section 20
read with Section 21 of the Micro, Small and Medium Enterprises
Development Act, 2006 (henceforth referred to as the Act). The
Parliament has noticed that small-scale industry is facing lots of
difficulties to stay put in the competitive industrial environment
and for it to flourish, settlement of its disputes and dues must be
attended to on priority basis, so that the small-scale industrial
entrepreneurs  can be developed duly enhancing their
competitiveness with rest of the entrepreneurs. Chapter IV of this
Act provided for various measures for promotion, development and
enhancement of competitiveness of Micro, Small and Medium
Enterprises. Chapter V dealt with the delayed payments to Micro
and Small Enterprises. Section 15 of the Act has thrust that where
any supplier supplies any goods, or renders any services to any
buyer, the buyer shall make payment therefor on or before the date
agreed upon between him and the supplier in writing or where
there is no agreement in this behalf, before the appointed date,
provided that in no case the period agreed upon between the
supplier and the buyer in writing shall exceed forty-five days from
the day of acceptance or the day of the deemed acceptance.  The
expression appointed day has been defined in Section 2(b) of the
Act as the day following immediately after the expiry of the period
of 15 days from the day of acceptance or the day of deemed
acceptance of any goods or any services by a buyer from a
supplier.  It was explained therein that the day of acceptance
means the day of the actual delivery of goods or rendering of
services.  Thus, Section 15 of the Act has attempted at a tight
time-frame limit within which the payments are required to be
made to small-scale entrepreneurs. Section 16 has thrust a further
liability on the defaulting party making him liable to pay
compound interest with monthly rests at three times of the bank
rate notified by the Reserve Bank of India. Under Section 18,
notwithstanding anything contained in any other law for the time
being in force, any party to a dispute may make a reference to the
Micro and Small Enterprises Facilitation Council for recovery of the
monies due.  Section 20 of the Act required the State Government
to establish one or more Micro and Small Enterprises Facilitation
Councils and Section 21 of the Act dealt with the composition of
such a Council.  The Director of Industries in the Department of
the State Government having administrative control over small-
scale industries is made the Chair-person of the Facilitation
Council.
      The 2nd respondent herein has made a reference under
Section 18 of the Act for recovery of the aforementioned sum of
Rs.47,24,823/-.  It appears, it has filed on 04.10.2013 a revised
claim claiming a sum of Rs.1,46,99,714/-, but however, the 1st
respondent Facilitation Council passed orders the very next day
i.e. on 05.10.2013 directing the petitioner herein to pay a sum of
Rs.68,29,506/- towards principal and Rs.59,93,743/- towards
interest as on 30.09.2013, totalling to Rs.1,28,23,249/-.  Further
interest with monthly rests at three times the bank rate prevailing
as on the date of the Award was also made as payable. It is this
Award, which is challenged in this Writ Petition.
      It is not in dispute that the 2nd respondent has revised its
claim and filed it on 04.10.2013 before the Council and the
Council has passed its Order the very next day, namely
05.10.2013.  It is now urged before me specifically that the
petitioner herein had not been provided with a proper opportunity
to meet the revised claim of the 2nd respondent and bring out as to
how it is not tenable.  Therefore, it is urged that the order of the
Council dated 05.10.2013 is bad for violation of the principles of
natural justice.
      The learned counsel for the 2nd respondent Sri Karthik had
raised two-fold objection for entertaining this Writ Petition; the first
is that Section 19 of the Act sets out that no application for setting
aside any decree, award or other order made by the Council shall
be entertained by any Court unless the appellant has deposited
with it 75% of the amount in terms of the decree, award or the
order in the manner directed by such Court.  Sri Karthik therefore,
would submit that unless this pre-condition is met with, the Court
has no power to entertain this Writ Petition.  The learned counsel
would further submit that the Order of the 1st respondent Council
is liable to be challenged under Section 34 of the Arbitration  and
Conciliation Act, 1996 and that being an effective alternative
remedy, the petitioner could not have bypassed the same.
      It is important to notice that the provisions contained in
Sections 15 to 23 of the Act have been given overriding effect by
the Parliament, notwithstanding anything inconsistent therewith
contained in any other law for the time being in force.  It is,
undoubtedly, true that by providing for such an overriding effect to
the provisions contained in Sections 15 to 23 of the Act, the
Parliament intended to protect the interests of Micro, Small and
Medium Enterprises and promote the competitiveness of theirs, so
that they can stay afloat with other industries.  But these
provisions, in my opinion, cannot be read as excluding the judicial
review power of the High Court under Article 226 of the
Constitution.  For the present, I am not pronouncing any final
opinion on such an issue, in view of the conclusion to which I have
arrived, as set out herein below.  Judicial review power vested with
the constitutional Courts springs from the very Constitution.
Therefore, even by a statutory exercise, no Legislature can seek to
curtail or diminish that power totally.  It may be a different aspect
as to when the Court should really be called upon to exercise such
power.  However, where principles of natural justice are breached,
it is only appropriate that the error should be set right
immediately.  Lest, the very exercise of power carried out in
flagrant violation of the principles of natural justice would hold the
field unjustly.  This is one major reason that is weighing with my
mind when I generated a debate in this regard at the Bar.  I have
also suggested that the matter should be sent back to the Council
for a proper consideration duly hearing the petitioner herein.  This
apart, the Award has not assigned any specific reasons.  As is too
well-known, reasons are the live links, which bring out the
application of mind by the decision-maker.  The reasons offer
clarity and fairness of approach adopted while deciding the issue.
It is one thing to say that very exhaustive reasons may not have
been required to be spelt out like a well-trained Court would have
while adjudicating a lis brought before it, but however, the 1st
respondent Council, which has been clothed with the power to
adjudicate and pronounce upon an order relating to payment of
arrears and its recovery, it is essentially required of it to assign
reasons as to why it has reached the conclusion to which it did.
Lest, whole exercise would turn itself into an arbitrary fiat.
Therefore, for sheer violation of the principles of natural justice in
providing a fair and effective opportunity to the petitioner to meet
the case set up by the 2nd respondent in the form of a revised
claim, the Award passed by the 1st respondent on 05.10.2013
deserves to be set aside.
      I must also necessarily place on record my appreciation of
the efforts made by Sri Karthik, learned counsel for the 2nd
respondent.  The Managing Director of the 2nd respondent has filed
a sworn affidavit yesterday.  It is agreed that without prejudice to
the 2nd respondents objections with respect to entertainability or
maintainability of the Writ Petition and also without prejudice to
the merits of the claim of the 2nd respondent, dated 04.10.2013, for
a sum of Rs.1,46,99,714/- before the 1st respondent and interest
thereon, the 2nd respondent is agreeable for the matter to be
remanded to the 1st respondent.  The affidavit of the 2nd
respondent has been taken on record.
      Accordingly, the Order dated 05.10.2013 passed by the 1st
respondent is set aside.  The claim of the 2nd respondent is
restored to the 1st respondent and the 1st respondent shall provide
an opportunity to the petitioner herein to file its statement in
defence of the claim of the 2nd respondent in a time span not
exceeding 15 days to do so and thereafter, provide an opportunity
of hearing to both the petitioner as well as the 2nd respondent
herein who is the claimant and then pass an Award setting out
briefly the reasons why the conclusions have been arrived at by it.
It is made clear that the monies paid to the 2nd respondent,
pursuant to the interlocutory order passed by this Court on
16.12.2014, will abide by the result of the claim now to be decided
by the 1st respondent.  The 1st respondent is further directed to
complete the entire exercise in as quicker time as is possible,
preferably within a maximum period of two months from the date
of receipt of a copy of this order.
      With this, the Writ Petition stands allowed. No costs.
          Consequently, the miscellaneous applications, if any shall
stand disposed of.
-----------------------------------------
NOOTY RAMAMOHANA RAO, J        
25th June 2015

Magistrate is not a Post Office = Magistrate, who is dealing with a complaint under Section 190 read with 200 Cr.P.C. has to apply his mind to find out as to whether the complaint makes out a prima facie case or not. Only, in the event, a prima facie case is made out, the complaint can be forwarded to the police for making investigation and to file a final report under Section 173 of the Code. Reasons are required to be spelt out for that satisfaction arrived at by the Magistrate. Perhaps, those reasons need not be very elaborate. Mechanically, no Magistrate can forward the complaints received to the police for investigation. Such measures would result in reducing the Court to that of a mere post office or to that of a sorting office attached to the Railway Mail Service. That is not the purpose which is sought to be achieved by the Code where provision is made for a genuine complainant to approach the competent Court for securing redressal for his grievance, when the police failed to act in the matter. I am, therefore, convinced that the entire exercise is an illegal one and hence, this petition is allowed. Accordingly, this criminal petition is allowed.-2015 Telangana & A.P.msklawreports

Magistrate is not a Post Office = Magistrate, who is dealing with a complaint under Section 190 read with 200 Cr.P.C. has to apply his mind to find out as to whether the complaint makes out a prima facie case or not.  Only, in the event, a prima facie case is made out, the complaint can be forwarded to the police for making investigation and to file a final report under Section 173 of the Code. Reasons are required to be spelt out for that satisfaction arrived at by the Magistrate.  Perhaps, those reasons need not be very elaborate. Mechanically, no Magistrate can forward the complaints received to the police for investigation.  Such measures would result in reducing the Court to that of a mere post office or to that of a sorting office attached to the Railway Mail Service.  That is not the purpose which is sought to be achieved by the Code where provision is made for a genuine complainant to approach the competent Court for securing redressal for his grievance, when the police failed to act in the matter.       I am, therefore, convinced that the entire exercise is an illegal one and hence, this petition is allowed.       Accordingly, this criminal petition is allowed.-2015 Telangana & A.P.msklawreports

Or. VII, rule 11 of C.P.C.- Suit to set aside Lok Adalat on ground of fraud & collusion - Trial court returned the plaint as not maintainable - only remedy is to file writ - Their Lordship held that Whether or not the appellant is justified in his claim, that the award of the Lok Adalat is vitiated by fraud, are matters to be examined by the Court below. As the power to reject a plaint under Order 7 Rule 11(d) is to be exercised by the civil court only if the suit appears, from the statement in the plaint, to be barred by law, the court below erred in rejecting the plaint on the ground that a civil suit is not maintainable. The order under appeal is set aside. We make it clear that we have not expressed any opinion on the truth or otherwise of the appellants claim that the award of the Lok Adalat is vitiated by fraud. The Court below shall adjudicate the suit on its merits, and in accordance with law. - 2015 Telangana & A.P. msklawreports



They sought a decree in their favour, and against the
defendants, to declare para 18 of the compromise recorded in O.S.
No.481 of 2007 before the Lok Adalat dated 22.08.2007, in so far
as it related to land admeasuring Ac.9.29 gts of land in Sy.
Nos.271, 272 and 273 shown to have created rights in favour of
defendant No.31 i.e., M/s. Bhargavi Constructions represented by
Sri V. Ramachandra Rao, as nonest in law for having been
obtained by fraud and collusion, by playing fraud upon the
plaintiffs; and for grant of a permanent injunction restraining the
defendants, especially defendant No.31, their agents, servants,
employees etc., from interfering with the peaceful possession and
enjoyment of the plaintiffs in respect of the suit schedule A, B and
C properties. =


The Court below had rejected the plaint solely on
the ground that a civil suit cannot be filed, and the plaintiffs
remedy is only to invoke the jurisdiction of this Court under Article
226 of the Constitution of India.
Whether or not the appellant is
justified in his claim, that the award of the Lok Adalat is vitiated by
fraud, are matters to be examined by the Court below.  As the
power to reject a plaint under Order 7 Rule 11(d) is to be exercised
by the civil court only if the suit appears, from the statement in the
plaint, to be barred by law, the court below erred in rejecting the
plaint on the ground that a civil suit is not maintainable.  The
order under appeal is set aside.  We make it clear that we have not
expressed any opinion on the truth or otherwise of the appellants
claim that the award of the Lok Adalat is vitiated by fraud.  The
Court below shall adjudicate the suit on its merits, and in
accordance with law.
      The order, under challenge in this appeal, is set aside and
the appeal is allowed with costs. Miscellaneous petitions pending,
if any, shall also stand disposed of.

Or.XV-A of the Code - Suit for eviction and for arrears of rents - interim application for deposit of arrears of rents - before filing written statement ,basing on notices and exchange of notice - court allowed the same - when there is dispute about the arrears of rents - quantum of rent and before filing the written statement - as per sub rule 2 no petition be allowed and as such set aside the order and reopened the I.A.for fresh disposal - 2015 Telangana & A.P. msklawreports




The plaintiff / respondent herein filed the suit for eviction of the
defendant petitioner from the suit scheduled property and for delivering
the vacant position thereof to her.  The plaintiff also prayed for a sum of
Rs.54,41,874/- to be paid towards arrears of rent together with the
interest at the rate of 12% per annum from the date of the suit till the
same is realized and also sought for future mesne profits.

 The plaintiff has also filed I.A.No.315 of 2014 for a direction to
the respondent to pay her an amount of Rs.52,79,713/- being the arrears
of rent payable.  This I.A.No.315 of 2014 is moved in terms of and in
accordance with Order-XV-A read with Section 151 of the Code of Civil
Procedure (for short the Code).  That application is, now, ordered on
16-04-2015.   =

Rule (1) clearly spelt out that the defendant, while filing his
written statement, shall deposit the amount representing the undisputed
arrears calculated up to that date into the Court and shall continue to
deposit such amount, which becomes payable thereafter, within one
week from the date on which it becomes due.

Therefore, it is
contended that till such time the written statement is filed by the
defendant, the question of either depositing the arrears of rents or the
Court directing him to deposit any such arrears of rent would not arise.

It is true that Rule (1) of Order XV-A of the Code, in its content
and terms, speaks of the written statement of the defendant and also
refers to the assertions made therein with regard to the payment /
obligation to pay the agreed rents up to that date,
 but however, Rule
(2) makes it clear that where the defendant pleads in the written
statement that no arrear of rent or licence fee exists, it shall be
competent for the Court to pass an order in that regard after affording
an opportunity to both sides.
Therefore, Rule (2) will have applicability
even in a given case earlier to the date of filing of the written
statement.
Take a case where the plaintiff himself admits that no rents
are due and payable by the defendant, but however, he is seeking
recovery of possession as the period of lease has expired, he is entitled
to recover the possession of the leased out premises.

In such an event,
the Court need not wait for the written statement to be filed by the
defendant formally disclosing that he is not in arrears of rent due at all.

In view of the very claim of the plaintiff that no arrears are payable, the
Court, at the very outset, can direct the defendant to continue to
deposit the agreed rent payable during the pendency of the suit.
In such
cases, as contended , is it really required to wait for
the defendant to file his written statement?

Therefore, I am of the
opinion that Rule (2) of Order XV-A of the Code can have independent
applicability from that of the situation contemplated by Rule (1).
     
However, in the instant case, one glaring feature, which stares at
us, is this; in support of I.A.No.315 of 2014, the plaintiff has filed an
affidavit and in that affidavit, nowhere one will find as to how the
arrears have been calculated.  Further, in para 21 of the affidavit, it is
set out that the respondent in that interlocutory application is liable to
pay to the petitioner an amount of Rs.54,41,874/-, whereas in the
petition filed, the amount payable by the respondent was shown as
Rs.52,79,713/-.

Thus, there was a variance in the amount mentioned in
the prayer portion of the affidavit filed in support of the interlocutory
application and the interlocutory application itself.  The learned Judge
has straightaway proceeded and towards the end of para 6 of his order,
he recorded that the respondent has to pay the arrears of rent
amounting to Rs.54,41,874/- without making any effort to ascertain as
to how this amount has been worked out by the plaintiff in the
interlocutory application.
     
When I confronted  as to how he has worked out, the
learned counsel would fairly submit that arrears of rent have been
calculated for the period commencing from 01-08-2005 onwards and for
the period from 01-09-2006, 5% of enhancement has been calculated.
Firstly, in the absence of any term stipulating such annual hike in rentals
by 5%, any such claim becomes contentious.
This apart, in the
calculation memo filed today by the learned counsel , it is
shown that a sum of Rs.7,36,479/- is received as rent, though the
date(s) on which it was received or for the period for which it was
received is not mentioned.
If this amount of Rs.7,36,479/- was, in fact,
received by the plaintiff / petitioner in the interlocutory application
without any demur, the question of calculating 5% hike for the period
commencing from 01-09-2006 onwards, perhaps, would become further  
more contentious.
This apart, for the post 01-09-2013 period, a sum or
Rs.29,549/- is calculated as monthly rent payable.  How and on what
basis this figure is worked out is not spelt out anywhere.  These are the
questions, which ought to have been adjudicated and without even
adverting to the same, the Court could not have mechanically passed the
order dated 16-04-2015.

Section 17 of the Act has conferred a right to reside in a shared household to every woman in a domestic relationship and Section 19 is an enabling provision empowering the Magistrate for passing an appropriate order for residence of the parties. While Section 20 of the Act talks of the monetary relief which can be granted to a party under this Act, clause (d) of sub-section (1) of Section 20 of the Act makes it very clear that the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973, or any other law for the time being in force can be granted by the learned Magistrate. Therefore, the fact that the second respondent or respondents 2 and 3 have already approached the Family Court by instituting O.P.Nos.564 of 2007 and 565 of 2007 for restitution of conjugal rights and for securing maintenance respectively, would not come in the way of the Magistrate to exercise the power available under Section 20 of the Act and award appropriate monetary relief, should he consider that grant of Rs.3,000/- as monthly maintenance to the respondents 2 and 3 is hopelessly inadequate for one to lead a life of dignity in a city like Visakhapatnam. I am, therefore, of the opinion that the grounds urged by the petitioner for quashing D.V.C.No.5 of 2012 are not available and since the Domestic Violence Case has made out a prima facie case requiring prompt and immediate attention for securing the reliefs under Section 17 and Section 20 of the Act, it is only appropriate that the stay order passed by this Court on 03.01.2013 be vacated. Accordingly, this Criminal Petition stands dismissed. D.V.C.No.5 of 2012 shall be disposed of as expeditiously as possible within a maximum period of two months from the date of receipt of a copy of this order. Miscellaneous petitions, if any, pending shall stand dismissed.

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

CRIMINAL PETITION NO.23 OF 2013    

17-06-2015

1.Bheri Veera Vara Ravindra Prasad, S/o.Laxmi Narayana.2.Bheri Lakshmi
Narayana, S/o.Late Chellarao. ...PETITIONERS

1.State of A.P., Represented by Public Prosecutor, High Court of A.P.,
Hyderabad, and two others....RESPONDENTS    


Counsel for Petitioners: Sri V.Hari Haran

Counsel for Respondent No.1:  Public Prosecutor (AP)
 Counsel for Respondent Nos.2 and 3:   Sri P.Veerraju

<GIST:

>HEAD NOTE:  

? Cases referred

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            
CRIMINAL PETITION NO.23 OF 2013    
ORDER:
      This petition has been preferred for quashing D.V.C.No.5 of 2012
on the file of the IV Additional Chief Metropolitan Magistrate,
Visakhapatnam.
      Respondents 2 and 3 are the petitioners in the said D.V.C. and
the petitioners herein are the respondents in that case.  The first
petitioner in D.V.C is the legally wedded wife of the first respondent
therein and the first petitioner herein.  The second petitioner in D.V.C.
is the daughter of the first respondent/first petitioner herein.
      It is set out that the marriage between the first petitioner herein
and the second respondent took place on 23.02.2003 and at the time
of the marriage, the first petitioner was working with Hindustan
Petroleum Corporation Limited at Visakhapatnam drawing fairly a
handsome salary.  It is alleged against the petitioners herein that cash
in a sum of Rs.6,00,000/- was paid as dowry for the marriage, 50 tulas
of gold, 150 tulas of silver and cash of Rs.2,00,000/- towards other
formalities have all been paid.  But, however, it is alleged that the
second respondent herein has not been properly treated by the first
petitioner-husband and his family members.  The third respondent-
daughter was born on 12.07.2004.  It is asserted that the first
petitioner herein was transferred from Visakhapatnam to Ananthapur in
August 2005.  Therefore, the first petitioner and respondents 2 and 3
moved to Ananthapur, but, however, the first petitioner has sent away
respondents 2 and 3 on 18.12.2005 to Visakhapatnam on some pretext  
and when respondents 2 and 3 were getting ready to return
Ananthapur, the petitioner has got issued a telegram on 14.01.2006
asking respondents 2 and 3 not to return to Ananthapur, as he has
vacated the flat which he had hired at Ananthapur for certain reasons.
However, it is the case of respondent Nos.2 and 3 that the first
petitioner has not made any attempt to take them back to Ananthapur
even after seven (7) months time elapsed.  The place of residence of
the first petitioner, according to the complaint, has become difficult to
be traced.  In the meantime, the second respondent appears to have
lodged a complaint with the police for the alleged offence under
Section 498-A of the Indian Penal Code, 1860, read with Sections 3, 4
and 5 of the Dowry Prohibition Act, 1961.  That was registered as
Crime No.906 of 2006 and ultimately, the I Additional Chief
Metropolitan Magistrate at Visakhapatnam, in C.C.No.1131 of 2007,
acquitted the accused persons setting forth in judgment the principal
reason for such acquittal as under:
       Therefore, in the absence of any evidence from
independent witnesses, it is not safe to base conviction basing
upon the above material.  Hence, under the above facts and
circumstances, the prosecution failed to establish the guilt of
any of the accused beyond reasonable doubt and they are
entitled for acquittal

      It appears, the second respondent has filed O.P.No.564 of 2007
on the file of the Family Court, Visakhapatnam, seeking restitution of
her conjugal rights.  She has also filed O.P.No.565 of 2007 along with
her daughter, the third respondent herein, seeking maintenance from
the first petitioner herein.  O.P.No.564 of 2007 was decreed and
O.P.No.565 of 2007 was ordered on 23.06.2009 for payment of
monthly maintenance of Rs.2,000/- to the second respondent and
Rs.1,000/- to the third respondent-daughter.  The first petitioner-
husband has filed O.P.No.621 of 2007 seeking dissolution of marriage.
O.P.No.621 of 2007 was dismissed by the Family Court.  Against the
decree of restitution of conjugal rights passed in O.P.No.564 of 2007,
the first petitioner has preferred F.C.A.No.244 of 2009 before this Court
and this Court passed interlocutory order on 05.10.2009 suspending
the restitution of conjugal rights.  He has also preferred an appeal in
F.C.A.No.257 of 2009 against the dismissal of divorce O.P.No.621 of
2007, which is also pending.
      The main grounds of attack against D.V.C.No.5 of 2012 has
been orchestrated by Sri V.Hari Haran, learned counsel for the
petitioners as under:
      Respondents 2 and 3 lodged the complaint only on 13.03.2012,
i.e., more than 7  years after the alleged desertion of respondents 2
and 3.  This apart, for the very same allegations, prosecution was
already launched against the petitioners herein in C.C.No.1131 of 2007
and the learned I Additional Chief Metropolitan Magistrate at
Visakhapatnam has acquitted the petitioners herein by his judgment
dated 15.04.2015 and hence, question of drawing the very same
allegations all over again in the above D.V.C. is impermissible.  This
apart, O.P.No.565 of 2007 is already filed by respondents 2 and 3 and
that was ordered and the first petitioner herein has been complying
with the order passed therein by tendering the monthly maintenance as
ordered by the Court by depositing the same before the Court.  Hence,
question of reconsideration of the entire issue once again would not
arise.
      Per contra, learned counsel Sri P.Veerraju, who appeared today
in the matter, would submit that the present application is moved
under Sections 17, 19 and 20 of the Protection of Women from
Domestic Violence Act, 2005 (henceforth referred to for short as the
Act) and hence, question of quashing the present D.V.C. against the
petitioners herein would not arise.
      The Parliament has noticed that effective measures are
essentially required for protection of the rights of women guaranteed
under the Constitution, who are getting victimised due to violence
occurring within the family and hence, for putting in place preventive
measures and with a view to protect the rights of women, enacted the
Act.  Therefore, the Act itself has been ushered in for achieving greater
social objectives.  Above all, the Parliament wanted to announce in
clear terms that in this country, the guaranteed rights of women are
not merely confined to the statute book but they are taken adequate
care of.  With a view to give protection to the women essentially from
violence within the family, the present special piece of Legislation has
been brought forth.
      Section 3 of the Act has attempted in very broad and wide
terms, as to what constitutes domestic violence and hence, tried to
cover the various acts, omissions or commissions or even conduct of a
particular person to constitute domestic violence and hence, couched
the language in far and wide terms.  The expression physical abuse is
explained under Section 3 of the Act as to mean any act or conduct
which is of such a nature as to cause bodily pain, harm, or danger to
life, limb, or health or impair the health or development of the
aggrieved person.  Similarly, the expression verbal and emotional
abuse is sought to be explained in inclusive terms as insult, ridicule,
humiliation, name calling etc.  I am, therefore, of the opinion that if an
act of a particular person is likely to impair the health or development
of a particular person or if a person is openly put to humiliation, the
expressions physical abuse and verbal and emotional abuse get
attracted in the above context.
      When the contents of the complaint lodged by the second
respondent herein have been carefully studied, the humiliation heaped
upon her by the petitioners is, prima facie, made out.  After the first
petitioner herein, who is the husband of the second respondent herein
and the father of the third respondent, has been transferred from
Visakhapatnam to Ananthapur where respondents 2 and 3 joined him
but he sends them away on some pretext back home at Vizag and in  
the meantime, abruptly vacates the flat hired by him at Ananthapur so
as to prevent respondents 2 and 3 to come back and join him at
Ananthapur to lead a life of dignity along with him, perhaps, towards
such a conduct various expressions found in the sweep of Section 3 of
the Act get attracted.
      This apart, whatever be the differences and their intensity be
between the first petitioner and the second respondent, the third
respondent herein was born to them on 12.07.2004.  The petitioners
herein being the father and the grand father are liable to ensure that
the third respondent makes a steady progress and development in all
respects.  They are liable to ensure that the personality and intellectual
development of the third respondent should not get impaired in the
process in any manner.  The third respondent is not at fault in any
manner for the unresolved differences between the petitioners on one
hand and the second respondent on the other.  If the third respondent
has been unjustly denied what is legitimately due to her, the paternal
care and guidance, while all other children of her age group who
receive it in abundance and lead a normal course of living, the third
respondent, prima facie, appears to have been put to verbal and
emotional abuse, as she has invidiously been made to suffer
humiliation apart from the expression physical abuse itself getting
attracted in her case.
      This apart, the learned counsel for the second respondent is
right in pointing out that Section 17 of the Act has conferred a right to
reside in a shared household to every woman in a domestic
relationship and Section 19 is an enabling provision empowering the
Magistrate for passing an appropriate order for residence of the parties.
While Section 20 of the Act talks of the monetary relief which can be
granted to a party under this Act, clause (d) of sub-section (1) of
Section 20 of the Act makes it very clear that the maintenance for the
aggrieved person as well as her children, if any, including an order
under or in addition to an order of maintenance under Section 125 of
the Code of Criminal Procedure, 1973, or any other law for the time
being in force can be granted by the learned Magistrate.  Therefore,
the fact that the second respondent or respondents 2 and 3 have
already approached the Family Court by instituting O.P.Nos.564 of 2007
and 565 of 2007 for restitution of conjugal rights and for securing
maintenance respectively, would not come in the way of the Magistrate
to exercise the power available under Section 20 of the Act and award
appropriate monetary relief, should he consider that grant of Rs.3,000/-
as monthly maintenance to the respondents 2 and 3 is hopelessly
inadequate for one to lead a life of dignity in a city like Visakhapatnam.
      I am, therefore, of the opinion that the grounds urged by the
petitioner for quashing D.V.C.No.5 of 2012 are not available and since
the Domestic Violence Case has made out a prima facie case requiring
prompt and immediate attention for securing the reliefs under Section
17 and Section 20 of the Act, it is only appropriate that the stay order
passed by this Court on 03.01.2013 be vacated.
      Accordingly, this Criminal Petition stands dismissed.  D.V.C.No.5
of 2012 shall be disposed of as expeditiously as possible within a
maximum period of two months from the date of receipt of a copy of
this order.  Miscellaneous petitions, if any, pending shall stand
dismissed.

_________________________  
(NOOTY RAMAMOHANA RAO, J)      
17th June 2015  

the petitioner is deemed to have opted for commutation of only 1/3rd of his pro rata pension as per the rules. Consequently, the respondents would have to redo the exercise of working out his pensionary benefits right from the start. In accordance with such option, the respondents shall work out the commuted pension payable initially and upon revision, the regular pension payable after such commutation initially and upon revision, the amount payable after restoration of the commuted pension and all the arrears. As the petitioner received certain amounts in excess of the amounts due and payable to him, he would necessarily have to refund the same. Such amounts would therefore have to be adjusted against the final amount calculated to be due and payable to the petitioner pursuant to this order. The amounts found due and payable by both sides shall carry simple interest @ 6% per annum. The entire exercise shall be completed and the final amount shall be remitted to the petitioner within two months from the date of receipt of a copy of this order. Considering the refractory attitude of the respondents in driving the petitioner from pillar to post for his rightful dues, this Court is constrained to impose exemplary costs of Rs. 10,000/- upon the respondents. The writ petition shall stand disposed of accordingly. Pending miscellaneous petitions, if any, shall stand closed in the light of this inal order.

THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT PETITION NO.23832 OF 2009    
       
24-06-2015

K. Subrahmanyam.. Petitioner

The Border Roads Development Board,  rep. by its Secretary, Government of
India, New Delhi and others .. Respondents


Counsel for petitioner: Sri Siva
                         Smt. K. Rajya Lakshmi

Counsel for respondents:Sri T. Balaji
                         Sri B. Narayana Reddy
               

<Gist:


>Head Note:    

? CASES REFERRED:    

1. (1979) 2 SCC 150 = AIR 1979 SC 1060.
2. (2000) 8 SCC 395 = AIR 2000 SC 3243.
3. AIR 1982 MADRAS 386 (DB)  
4. 2006 Writ LR 705 (DB).
5. 2013(5) ABR 458 = 2013 (6) ALLMR 724 (DB).
6. AIR 1999 AP 335 = 1999 (3) ALD 632.


THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT PETITION NO.23832 OF 2009    

O R D E R

        The petitioner, an octogenarian, is aggrieved by the rejection of
his claim for certain pensionary benefits by the Director General,
Border Roads, New Delhi, the second respondent, under letter dated
22.05.2009 (wrongly mentioned as 22.05.2008).
        There is no dispute as to the petitioners entitlement to
pensionary benefits from 04.04.1979.  He has been agitating his
grievance in connection therewith since 1985 and this is the third
round of litigation before this Court.  Ergo, a lengthy and tortuous
history precedes the case.  Shorn of needless detail, the facts to the
extent relevant may be summed up thus:
        The petitioner entered the service of the Central Water and
Power Commission, Government of India, in December, 1956.  He
was thereafter appointed to the General Reserve Engineer Force,
Border Roads Development Board, in May 1963.  In March, 1974, he
was promoted as a Superintendent Engineer (Mechanical).  He was
deputed to work in M/s. Singareni Collieries Company Limited, a
public sector undertaking, in April, 1975 and continued as such till
April, 1979.  He was permanently absorbed in M/s. Singareni
Collieries Company Limited with effect from 04.04.1979.  The
permanent absorption order was issued by the Government of India,
Ministry of Shipping and Transport, Boarder Roads Development
Board, New Delhi, under proceedings dated 28.02.1985.  These
proceedings record that the petitioners permanent absorption would
have effect from 04.04.1979 but no arrears on account of pension
and death-cum-retirement gratuity would be paid to him from
04.04.1979 till 28.02.1985.  It was further stated therein that the
petitioner would be eligible for pro-rata pension and gratuity based
on the length of his qualifying service under the Government of India
till the date of his permanent absorption, as admissible under the
rules.  Admittedly, his qualifying service was from his initial
appointment in December, 1956, till his absorption in M/s. Singareni
Collieries Company Limited in April, 1979. Clauses (v) and (vi) of the
proceedings dated 28.02.1985 are germane and read thus:
(v) Option:
The officer will exercise an option, within six months of the
date of issue of this letter, for either of the alternatives
indicated below:-
a)      Receiving the pro-rata monthly pension and death-cum-
retirement gratuity as admissible under clauses (ii), (iii) and (iv)
above under the Government of India Rules.
OR
b)      Receiving the pro-rata gratuity and a lump sum amount in lieu
of pension worked out with reference to the Commutation
Tables obtaining on the date from which the commuted value
becomes payable.
(vi) Commutation:
In case Shri K. Subrahmanyam opts to receive pension as in
para (v) (a) above but wishes to commute a portion of his
pension, such commutation will be regulated in accordance
with the Government of India Rules in force at the time of his
permanent absorption in Singareni Collieries Limited.

      According to the respondents, the petitioner furnished Option
Certificate dated 24.03.1985 opting to receive pro-rata gratuity and a
lump sum amount in lieu of pension.  The petitioner would however
contest this claim.  According to him, the sequence of events
demonstrates that he had not opted for 100% commutation and, in
fact, he could not have done so under the prevailing legal regime.
        In the first instance, the petitioner approached this Court by
way of W.P.No.16779 of 1997 aggrieved by the denial of pensionary
benefits from 04.04.1979 to 28.02.1985.  Therein, he sought a
direction to the respondents to restore his pension from the date of
his retirement from Government service and to regulate the same in
accordance with the orders extant.  It appears that prior to filing this
case, the petitioner approached the Central Administrative Tribunal.
The Tribunal however refused to entertain his case on the ground of
delay.  He thereupon filed the writ petition.  Initially, a learned Judge
of this Court dismissed the writ petition by order dated 08.07.1998.
Aggrieved thereby, the petitioner filed W.A.No.1407 of 1998.  The said
appeal was allowed by order dated 19.12.2000 and the writ petition
was remitted for consideration afresh.  It was then disposed of by a
Division Bench of this Court on 26.02.2004.  Observing that the
petitioner was 75 years of age at that time and requiring him to
approach the Tribunal again would be a long drawn exercise, the
Division Bench considered the matter on merits.
        Similar considerations would therefore weigh with this Court
now, as the petitioner has advanced in age by another decade.
      The Division Bench took note of the fact that the petitioner had
received lump sum pensionary benefits in 1986 and that the
commuted portion of his pension was restored after 15 years, i.e., in
2001, and observed that till the commutation of the pension was
effected the petitioner was eligible for pension.  He was accordingly
held entitled to the arrears of pension for the said period.  The
operative portion of the order dated 26.02.2004 reads thus:
      (1) The petitioner is entitled for pension in accordance
with the Rules either pro rata or otherwise from 04.04.1979 till
the date of 100% commutation of pension.
                (2)    
        (3) The arrears and also the amount which became
payable to the petitioner shall be paid within a period of three
(03) months from the date of receipt of a copy of this order.
      It appears that the respondents, in purported compliance with
the above order, granted pension to the petitioner from 04.04.1979
till the date of commutation in 1986. Earlier, the letter dated
29.10.1986 issued to the petitioner had stated that his pro-rata
pension was calculated as Rs.614/- per month and the commuted
value of 1/3rd of the pension, i.e. @ Rs.204/-, was arrived at
Rs.27,172.80 ps.  The terminal benefit, being twice the commuted
value, was calculated at Rs.54,345.60 ps. and the total amount of
Rs.81,518.40 ps. was remitted.  This letter clearly demonstrated that
only 1/3rd of the petitioners pension was commuted. The revision of
his pension with effect from 01.01.1986 was extended to him
pursuant to the order dated 26.02.2004 and he was granted certain
arrears along with interest.  However, dissatisfied with the manner in
which the issue was dealt with, the petitioner again approached this
Court by way of W.P.No.6975 of 2005.  His prayer therein was as
under:
      .a) to declare the action of the respondents in not granting
the arrears of pension payable to the petitioner from 17-10-1986 as
per the revised pension of Rs.1277/- p.m. after deducting the
commutation portion of Rs.614/- and the pension revisions that took
place from time to time; b) to declare the action of the respondents in
not granting the benefits of Central Government Health Scheme to
the petitioner and his family from the date of retirement is arbitrary,
discriminatory and unconstitutional; c) and the respondents be
directed to release all the arrears of amounts due to the petitioner on
account of monthly pension of Rs.663/- p.m. payable to him since
17-10-1986 and the arrears of amounts of expenditure incurred by
the petitioner towards himself and to his wife for medical treatment
and operations undergone by them from 1-11-1987 with interest on
arrears compounding at 18% p.a. by allowing the writ petition with
exemplary costs and compensation for the loss suffering and
hardship caused to the petitioner and his family and pass such other
order or orders as this Honble Court may deem fit and proper in the
circumstances of the case.
        This writ petition was disposed of by order dated 05.11.2008
directing the respondents to consider the representations of the
petitioner canvassing his grievance in accordance with law and to
pass appropriate orders thereon within a time frame.  It was
pursuant to this order that the present impugned letter dated
22.05.2009 has been issued.
        At the core of the controversy lies the question as to whether
the petitioner commuted 100% of the pension payable to him as per
rules and whether the respondents acted upon the same?
        It is no doubt true that Section 10 of the Pension Act, 1871,
provides that the appropriate Government may, with the consent of
the holder, order the whole or any part of his pension to be
commuted for a lump sum on such terms as it may deem fit.
However, the question, as stated earlier, is whether the petitioner
consented to 100% commutation of his pension.
        The record reflects that there was no clarity on this issue on
the part of the petitioner and more so, unfortunately, on the part of
the respondents.   In the proceedings dated 28.02.1985, there was no
reference to any rule in connection with the choice offered to the
petitioner to opt for a lump sum amount in lieu of pension.  However,
the respondents stated in their counter-affidavit that the grant of pro-
rata retirement benefits under the proceedings dated 28.02.1985 was
relatable to Rule 37-A of the Central Civil Services (Pension) Rules,
1972 (for brevity, the Rules of 1972).
        Significantly, Rule 37-A of the Rules of 1972 pertains to
payment of pension on absorption consequent upon conversion of a
Government department into a central autonomous body or a public
sector undertaking.  In the present case, the petitioner alone was
absorbed in M/s. Singareni Collieries Company Limited and there
was no conversion of his parent department into a public sector
undertaking.  This rule therefore had no application to the petitioner.
On the other hand, Rule 37 of the Rules of 1972 deals with pension
payable on absorption in or under a corporation, company or body.
This rule reads to the effect that a Government servant, who has
been permitted to be absorbed in a corporation, wholly or
substantially owned or controlled by the Government, shall be
deemed to have retired from service from the date of such absorption
and shall be eligible to receive retirement benefits. The Explanation
thereto makes it clear that the date of absorption shall, in case the
Government employee joins a corporation on absorption basis, be the
date on which he actually joins that corporation.  It is clear that Rule
37 of the Rules of 1972 alone governs the petitioner.
        Further, it may be noticed that the impugned letter dated
22.05.2009 relies heavily upon the Office Memorandum dated
08.04.1976 of the Department of Expenditure, Government of India.
A copy of the said Office Memorandum was produced by the learned
Assistant Solicitor General.  Though a reference was made to this
Office Memorandum in the proceedings dated 28.02.1985, the clause
as to the exercise of option was materially different therein.  In the
Office Memorandum dated 08.04.1976, the clause reads as under:
   (iii) Every Government servant is to exercise an option, within
six months of his absorption, for either of the alternatives
indicated below:
(a)     Receiving the monthly pension and DCR Gratuity already
worked out, under the usual Government arrangements.
(b)     Receiving the gratuity and a lump sum amount in lieu of
pension worked out with reference to commutation tables
obtaining on the date from which the pro-rata pension, gratuity
etc. would be disbursable.
   Where no option is exercised within the prescribed period, the
officer will automatically be governed by alternative (b) above.
Option once exercised shall be final.  The option shall be exercised
in writing and communicated by the Government servant
concerned to the undertaking/autonomous body.
                                                              (emphasis added)
      Significantly, the proceedings dated 28.02.1985 did not
disclose that the option once exercised would be final and that it had
to be exercised in writing and communicated by the petitioner  to
M/s. Singareni Collieries Company Limited.  There is no proof of due
compliance in this regard by the petitioner even at this late stage.
      To complicate matters further, the learned Assistant Solicitor
General produced a form dated sometime in August, 1985, duly
signed by the petitioner, relating to commutation of his pension
without medical examination.  This form tallies with Form 1 of the
Central Civil Services (Commutation of Pension) Rules, 1981 (for
brevity, the Rules of 1981), which relates to an application for
commutation of a fraction of pension without medical examination. In
this form, there is no indication that the petitioner commuted 100%
of the pension payable to him and going by the format of the
application, he could not have done so.  On the other hand, he stated
therein that the amount of pension had not yet been settled and the
pension proposed to be commuted was as per the Rules of 1972.
This form was obtained by the respondents in August, 1985, and it
contradicted the earlier certificate obtained from the petitioner in
March, 1985. To add to the confusion, the letter dated 29.10.1986
issued by the respondents, referred to supra, indicated that the
petitioner underwent a medical examination on 30.06.1986!
      There is no explanation forthcoming even now as to these
discrepancies and contradictions.
      Further, the letter dated 29.10.1986 demonstrated that only
1/3rd of the petitioners pension was commuted.  This was in keeping
with Rule 5 of the Rules of 1981, which decrees that a Government
servant can commute for a lump sum payment only a fraction, not
exceeding 1/3rd, of his pension. The Rules of 1981 would have
application as they apply to classes of pension referred to in Chapter
V of the Rules of 1972, which includes Rule 37.  It is relevant to note
that Rule 9 of the Rules of 1981 provides that a Government servant
to whom, pending assessment of final pension, provisional pension
has been sanctioned, would be eligible to commute only a fraction of
such provisional pension subject to the limit specified in Rule 5.
      At the point of time when the option certificate was obtained
from the petitioner in March, 1985, the petitioners final pension had
not even been calculated, much less sanctioned.  He could not
therefore have acted in violation of the rules and sought 100%
commutation.  It is not the contention of the learned Assistant
Solicitor General that the Rules of 1981 do not apply to the
petitioner.  The Office Memorandum dated 08.04.1976 cannot
therefore override the statutory rule, viz., Rule 5 of the Rules of 1981.
Further, as indicated supra, the intimation given to the petitioner
under the proceedings dated 28.02.1985 was not even in consonance
with the Office Memorandum dated 08.04.1976 and the petitioner
was never put on notice that the option exercised by him would be
final.  The respondents themselves did not treat the option exercised
by him in March, 1985 as final, as is clear from the subsequent
option form obtained from him in August, 1985, which was quite
contrary to the earlier option.  At the time the petitioner purportedly
opted for 100% commutation in March, 1985, his provisional pension
had not even been calculated or sanctioned.
      It is therefore not open to the respondents to claim that the
petitioner opted for 100% commutation and that it is final and
binding on him.  Their own conduct speaks against such a
conclusion.  Except for banking upon the clause extracted from the
Office Memorandum dated 08.04.1976, the impugned letter dated
22.05.2009 does not demonstrate as to why the petitioners main
grievance has not been considered.  It was his case that he had only
asked for commutation of a fraction of his pension.  It appears that
the fraction initially permitted to be commuted was 1/3rd of his pro-
rata pension in accordance with the rules but thereafter, confusion
abounded and amounts in excess of the permissible limit were paid
to the petitioner.  However, it was for the respondents to be more
mindful of the legal regime while dealing with the petitioners pension
payments and they ought to have acted in accordance with law.
Ignorance or carelessness on the part of the petitioner cannot be
taken advantage of by the respondents in this regard.
      It may also be noticed that pursuant to the order passed by the
Division Bench of this Court in W.P.No.16779 of 1997, the petitioner
was paid arrears of pension from 04.04.1979 till the date of the so
called commutation.  If it was the stand of the respondents that the
petitioners option to receive 100% commutation is final and binding,
there was no question of his being allowed pension payment on
regular basis from 04.04.1979 till the date of the so called
commutation in 1986.  The respondents therefore cannot approbate
and reprobate. If it was their contention that he was entitled to only a
lump sum payment in lieu of pension, he should have been paid, at
best, an additional lump sum for the period in question and not the
arrears of regular pension, as has been done.  It is also significant to
note that the Division Bench had left it open to the respondents to
pay pension to the petitioner in accordance with law either pro-rata
or otherwise.  The respondents opted to pay him arrears of pension
for that period.  Once they chose to do so, it is not open to them at
this late stage to say that the petitioner opted for a one-time lump
sum commutation whereby he stood disentitled to receive regular
pension.
      Significantly, it was only in September, 2004, that the
respondents applied this so called 100% commutation to the revised
pension of Rs.1,277/- and paid him a further lump sum amount.
This unilateral action on their part, after a lapse of nearly 18 to 19
years, is in clear violation of the rules and cannot be countenanced.
This also speaks volumes about the utter lassitude and negligence of
the respondents in dealing with a pensioner who rendered loyal
service to the organization.
        Reference in the counter affidavit to Rule 10 of the Rules of
1981, as to an applicant who commutes a fraction of his final
pension not being required to apply afresh for commutation after
revision of such pension, indicates clear lack of application of mind.
The rule applies, as is self-evident, in the case of an application for
commutation of part of the final pension.  It has no application to a
case of 100% commutation.  Despite the same, the respondents now  
seek to justify their action in the year 2004 by relying on this rule.
This lack of clarity and understanding on the part of the respondents
in discharging their statutory obligation towards the petitioner has
resulted in this long drawn battle stretching over several decades
causing great injustice to the petitioner in his twilight years.
      To sum up, it is manifest that both parties were completely at
sea as to the implementation of the rules and the benefit of this lack
of clarity on the part of the implementing authority must necessarily
go to the petitioner.  Needless to state, there can be no estoppel
against the statute. Further, there is no possibility of applying the
principle of constructive res judicata to the petitioner on the ground
that this is the third case filed by him. The issue was kept alive since
the very first round of litigation and never attained a quietus. The
petitioner is therefore not estopped from raising this grievance even
at this stage.
      Finally, the relief to be granted. The confidence reposed by this
Court in the respondents while disposing of W.P. No. 6975 of 2005
has not been honoured by them as is apparent from the cursory
handling of the petitioners representations under the impugned
letter dated 22.05.2009. A direction to again consider the issue would
therefore not suffice; all the more so, keeping in mind the advanced
age of the petitioner. Having fought this battle relentlessly, he is
justly entitled to enjoy the benefits thereof during his lifetime.
      The respondents have made enough of a muddle and a parody
while dealing with the petitioners case and cannot be trusted to set
right their mistakes by applying the rules correctly at this stage, even
if this Court directs them to do so. It is a settled proposition of law
that in a fit and deserving case, this Court would have the power to
issue positive directions. (DISTRICT REGISTRAR V/s.
M.B.KOYAKUTTY , BADRINATH V/s. GOVERNMENT OF          
TAMILNADU , STATE OF TAMILNADU V/s. C.VADIAPPAN ,        
GOVERNMENT OF TAMILNADU V/s. G.B.TRUST , NARENDRA            
BARDE V/s. MUNICIPAL CORPORATION OF BRIHAN MUMBAI  and            
LAVU EDUCATIONAL SOCIETY V/s. GOVERNMENT OF ANDHRA              
PRADESH ). This Court has no hesitation in holding that the case on
hand falls within the exceptional category warranting exercise of such
power.
      Viewed thus, this Court holds that the petitioner is deemed to
have opted for commutation of only 1/3rd of his pro rata pension as
per the rules. Consequently, the respondents would have to redo the
exercise of working out his pensionary benefits right from the start.
In accordance with such option, the respondents shall work out the
commuted pension payable initially and upon revision, the regular
pension payable after such commutation initially and upon revision,
the amount payable after restoration of the commuted pension and
all the arrears. As the petitioner received certain amounts in excess
of the amounts due and payable to him, he would necessarily have to
refund the same. Such amounts would therefore have to be adjusted
against the final amount calculated to be due and payable to the
petitioner pursuant to this order. The amounts found due and
payable by both sides shall carry simple interest @ 6% per annum.
The entire exercise shall be completed and the final amount shall be
remitted to the petitioner within two months from the date of receipt
of a copy of this order. Considering the refractory attitude of the
respondents in driving the petitioner from pillar to post for his
rightful dues, this Court is constrained to impose exemplary costs of
Rs. 10,000/- upon the respondents.
        The writ petition shall stand disposed of accordingly.  Pending
miscellaneous petitions, if any, shall stand closed in the light of this
inal order.
_________________  
SANJAY KUMAR,J    
24th JUNE, 2015 

The petitioner has sought for a direction to the respondents to renew his repairer licence without insisting for deletion of the word Corporation from the name of his business establishment.=the Controller is the authority vested with the power of granting licences. Under sub-section (2) of Section 23 of the Act, such licence shall be issued in such form and manner, on such conditions, for such period and such area of jurisdiction and on payment of such fee as may be prescribed. Therefore, the question arises as to who is empowered to prescribe the matters, which are mentioned in sub-section (2) of Section 23 of the Act. Section 53 (2) of the Act empowers the State Government to provide for various aspects while making rules. Those aspects include any or all of those which are mentioned in sub-section (2) of Section 23 of the Act. All those aspects have been repeated in clause (c) of sub-section (2) of Section 53 of the Act. In exercise of Rule making power, the State of Andhra Pradesh has framed the Andhra Pradesh Legal Metrology (Enforcement) Rules, 2011. Rule 11 (3) of the Rules provides that every licence issued to a manufacturer, repairer or dealer shall be in appropriate form set out in schedule III of the Rules. Schedule III of the Rules contains the conditions of licence enumerated as (a) to (h) of condition No.1. A conjoint reading of these provisions makes it abundantly clear that it is only the State Government which is empowered to prescribe conditions for grant of licence by framing Rules and respondent No.1 is only empowered to issue licence subject to such conditions as prescribed by the State Government. No provision under the Act or the Rules is brought to the notice of this Court under which this power of the State Government is delegated to respondent No.1. In the absence of such delegation, respondent No.1 has no power or jurisdiction to impose any condition other than the one, which is prescribed under Schedule III to the Rules. At best, respondent No.1 can only request the State Government to appropriately amend the Rules and the Schedule for deletion of the word Corporation from the name of the business establishments of the licencees. For the above-mentioned reasons, the impugned proceedings issued by respondent Nos.1 and 3 are held as wholly without jurisdiction and they are accordingly quashed. The writ petition is accordingly allowed. As a sequel to the allowing of the writ petition, interim order dated 10.11.2011 in WPMP.No.37049 of 2011 is vacated and WPMP.No.37049 of 2011 and WVMP.No.4764 of 2011 stand disposed of as infructuous.

THE HONOURABLE SRI JUSTICE C.V.NAGARJUNA REDDY            

WRIT PETITION No.29894 of 2011  

11-06-2015

M.V.Krishnaiah  . Petitioner

The Controller of Legal Metrology, Government of Andhra Pradesh, Hyderabad and
2 others.  Respondents

Counsel for Petitioner:  Mr. P.Sridhar Reddy

Counsel for Respondents: AGP for Civil Supplies (A.P)
                               
<GIST:

>HEAD NOTE:  

? CITATIONS:


HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY        
WRIT PETITION No.29894 of 2011  

Dated: 11.06.2015


The Court made the following:


ORDER:
       
      This writ petition is filed for a Mandamus to declare Circular Memo
No.3255/L2/2011, dated 26.08.2011, of respondent No.1 and consequential
Circular Memo No.1857/B/11, dated 12.09.2011, of respondent No.3 as
illegal and without jurisdiction.  The petitioner has sought for a direction
to the respondents to renew his repairer licence without insisting for
deletion of the word Corporation from the name of his business
establishment.


      I have heard Mr. P.Sridhar Reddy, learned counsel for the petitioner,
and the learned Government Pleader for Civil Supplies (A.P).

      The petitioner averred that he is a skilled worker authorized to
repair heavy and light weights and measures having passed skill workers
test. That he has started an establishment in the name and style
Venkateswara Weighing Machine Corporation in the year 1969 and been
running the same by obtaining repairers licence under the provisions of
the Standards of Weights and Measures Act, 1976 and under the Legal
Metrology Act, 2009 (for short the Act), after the former Act was
repealed. The petitioner feels aggrieved by the two impugned proceedings
issued by respondent Nos.1 and 3 respectively, whereunder he was directed
to remove the word Corporation from the name of his business
establishment. According to the petitioner, respondent No.1, which is a
licensing authority, is not empowered to prescribe any condition other than
the conditions prescribed under schedule III of the A.P. Legal Metrology
(Enforcement) Rules, 2011 (for short the Rules).

      On behalf of the respondents, respondent No.2 has filed a counter
affidavit, whereunder he has sought to justify the impugned proceeding
issued by respondent No.1 based on Section 23 (2) of the Act.
      At the hearing, Sri P.Sridhar Reddy, learned counsel for the
petitioner, submitted that the subject legal metrology was initially under
the state list, that by the 42nd amendment, the said subject has been
deleted from the state list and included in the concurrent list and that in
pursuance there of, the Government of India has enacted the Act. That
Section 23 of the Act prohibits manufacture, repair or sale of weight or
measure without licence and under sub-section (2) thereof and that the
Controller shall issue licence in such form and manner, on such conditions,
for such period and such area of jurisdiction and on payment of such fee as
may be prescribed. The learned counsel further submitted that under
Section 53 (1) of the Act, the State Governments are empowered to make
rules for the purpose of carrying out the provisions of the Act, and sub-
section (2) thereof enumerates the matters with reference to such rules
can be made. That clause (c) of sub-section (2) thereof pertains to making
rules with regard to the form, manner, conditions, period, area of
jurisdiction and fees for issuance of licence under sub-section (2) of Section
23 of the Act. The learned counsel has invited this Courts attention to Rule
11 of the Rules.  Sub-rule (3) thereof provides that every licence issued to
a manufacturer, repairer or dealer shall be in the appropriate form set out
in schedule III.  He has also referred to and relied upon the conditions of
licence mentioned in schedule III of the Rules.

      The learned Assistant Government Pleader placed reliance on
Section 23 (2) of the Act and submitted that the Controller is empowered
to prescribe such conditions as he deems fit while granting licence.

      I have carefully considered the respective submissions of the learned
counsel for the parties.

      For  appreciation  of  the  respective  submissions, certain  statutory
provisions need to be noticed. Section 23 of the Act reads as under:
       
  Prohibition on manufacture, repair or sale of weight
or measure without licence:-- (1) No person shall
manufacture, repair or sell, or offer, expose or possess for
repair or sale, any weight or measure unless he holds a
licence issued by the Controller under sub-section (2):

      Provided that no licence to repair shall be required by
a manufacturer for repair of his own weight or measure in
a State other than the State of manufacture of the same.

     (2) For the purpose of sub-section (1), the Controller
shall issue a licence in such form and manner, on such
conditions, for such period and such area of jurisdiction
and on payment of such fee as may be prescribed.

      Section 53 of the Act reads as follows:
    Power of State Government to make rules:-- (1) The State
Government may, by notification, and after consultation with
the Central Government, make rules to carry out the provisions
of this Act.

     (2) In particular and without prejudice to the generality of
the foregoing power, such rules may provide for all or any of
the following matters, namely:-

(a)     the time within which the weight or measure may be
got verified under proviso to sub-section (1) of section
16;

(b)     registers and records to be maintained by persons
referred to under sub-section (1) of section 17;
               
(c)     the form, manner, conditions, period, area of
jurisdiction and fees for issuance of licence under sub-
section (2) of section 23;

(d)     fee for verification and stamping of any weight or
measure under sub-section (1) of section 24;
(e)     manner of notifying Government Approved Test Centre,
terms and conditions and fee to be paid under sub-
section (3) of section 24;

(f)     fee for compounding of offences under sub-section (1)
of section 48.

      (3) In making any rule under this section, the State
Government may provide that a breach thereof shall be
punishable with fine which may extend to five thousand
rupees.

      (4) The power to make rules under this section shall be
subject to the condition of the rules being made after previous
publication in Official Gazette.

      (5) Every rule made under this section shall, as soon as may
be after it is made, be laid before each House of State
Legislature, where there are two Houses and where there is
one House of State Legislature, before that House.

      Rule 11 of the Rules reads thus:
      Licensing of manufacturers, repairers and dealers of
Weights and Measures:-- (1) Every manufacturer or repairer
of, or dealer in, weight or measure shall make an application
for issue of a licence, to the Controller of Legal Metrology or
such other officers as may be authorized by him in this behalf,
in the appropriate form set out in Schedule II-A.


       Provided that no licence to repair shall be required by a
manufacturer to repair weight or measure manufactured by
him and used in a state other than the state of manufacture of
the same, but the manufacturer as well as the user has to
inform in advance the concerned Legal Metrology Officer about
the repairing.

       Provided further that no person will be granted a
repairing licence unless he is a skilled worked and having a
valid Certificate of Skill issued by the Controller, Legal
Metrology.

       (2) Every manufacturer or repairer of or dealer in,
weight or measure shall make an application for the renewal of
a licence within thirty days before the expiry of validity of the
licence to the Controller of Legal Metrology or such other
officers as may be authorized by him in this behalf, in the
appropriate form set out in Schedule II-B.

       (3) Every licence issued to a manufacturer, repairer or
dealer shall be in the appropriate form set out in Schedule III.

       (4) Every licence issued to a manufacturer, repairer, or
dealer shall be valid for a period of one calender year and may
be renewed from one calender year to another calender year
by the Controller or such other Legal Metrology Officer as may
be authorized by him in this behalf on payment of such fee as
specified in the Schedule IV.

       (5) The fee payable for the alteration of a licence or for
the issue of a duplicate licence shall be as specified in the
Schedule IV.

       Provided that an additional fee at full the rates
specified in the Schedule IV shall be payable by the applicant
if he is permitted by the Controller to make an application for
the renewal of a licence within a period of three months from
the date of expiry of the licence.

       (6) The Controller or such other officer as may be
authorized by him in this behalf shall maintain a register of
licenced manufacturers, dealers and repairers in the form set
out in Schedule V.

       (7) Every manufacture / repairer / dealer licenced for
the jurisdiction to which licence is granted under the Act and
these rules, shall maintain such workshop / laboratory /
equipments / tools / registers etc. as the case may be, and
such other terms and conditions specified by the Controller of
Legal Metrology.  Any general or special directions and such
licence conditions issued by the Controller, shall be binding on
the persons to whom the licence has been granted.

       (8) Every licencee under the Act and these rules shall
furnish a security deposit for each licence to the State
Government as specified in Schedule VI.

       (9) Every licence issued or renewed under the Act and
these rules shall be displayed in a conspicuous place in the
premises where the licencee carries on business.

       (10) A Licence issued or renewed under the Act / Rules
made there under shall not be saleable or otherwise
transferable.

       (11) Transfer or transmission of business: (1) Where the
business of a person licenced under the Act and the Rules is
transmitted by succession, intestate or testamentary, the heir
or legatee, as the case may be, of such person shall not carry
on the business of such licencee either in his own name or in
any other name, unless the heir or legatee has, before the
expiry of sixty days after the date of such transmission, made
to the Controller an application for the issue of a licence in
accordance with the provisions of the Act and Rules there
under:

       Provided that nothing in this rule shall be deemed to
prohibit the heir or legatee from carrying on business as such
licencee for the aforesaid period of sixty days, and, if he has
applied for such licence, until he is granted the licence or is,
by a notice in writing informed by the Controller that such
licence cannot be granted to him.

       (2) Where the business of any person licenced under this
Act is transferred by sale, gift, lease or otherwise, the
transferee or lessee, as the case may be, shall not carry on
such business either in his own name or in any other name,
unless he has obtained a licence to carry on such business.

      The conditions of licence in Form LR-3, pertaining to licence      to
repair   weights,  measures,   weighing   instruments   or   measuring
instruments, of Schedule III of the Rules read as under:
       1. The person in whose favour this licence is issued shall.

(a)     Comply with all the relevant provisions of the Act and
Rules for the time being in force;
(b)     Not encourage or countenance any infringement of the
provisions of the Act or the Rules amended from time
to time.
(c)     Exhibit this licence in some conspicuous part of the
premises to which it relates;
(d)     Comply with any general or special directions that may
be given by the Controller of Legal Metrology;
(e)     Surrender the licence in the event of closure of
business or suspension or cancellation of Licence;
(f)     (i)       Present the weights, measures, weighing or
        measuring instruments as the case may be duly
        repaired to the Legal Metrology Officer in whose
        jurisdiction it is put into use, before delivery to
        the user.
        (ii) In the case of weights, measures weighing or
        measuring instruments, if they are
        serviced/repaired       before the date on which
        the verification falls due      and where, in the
        process and the verification stamp      of the Legal
        Metrology Officer is defaced, removed or broken,
        they shall be presented duly repaired to the
        legal metrology officer for re-verification and
        stamping before delivery to the user.
(g)     Submit the application for renewal of this licence, as
required under the rules before at least thirty days of
the date of expiry of the validity of the licence.
(h)     the licence conditions (a) and (d) are equally binding on
all persons connected with licencee.
     2.  Every condition prescribed after the issue of this licence
shall be binding on the persons to whom the licence has been
granted.

      From the statutory provisions referred to above, it is absolutely
clear that the Controller is the authority vested with the power of granting
licences.  Under sub-section (2) of Section 23 of the Act, such licence shall
be issued in such form and manner, on such conditions, for such period and
such area of jurisdiction and on payment of such fee as may be prescribed.
Therefore, the question arises as to who is empowered to prescribe the
matters, which are mentioned in sub-section (2) of Section 23 of the Act.
Section 53 (2) of the Act empowers the State Government to provide for
various aspects while making rules.  Those aspects include any or all of
those which are mentioned in sub-section (2) of Section 23 of the Act.  All
those aspects have been repeated in clause (c) of sub-section (2) of Section
53 of the Act.  In exercise of Rule making power, the State of Andhra
Pradesh has framed the Andhra Pradesh Legal Metrology (Enforcement)
Rules, 2011.  Rule 11 (3) of the Rules provides that every licence issued to
a manufacturer, repairer or dealer shall be in appropriate form set out in
schedule III of the Rules.  Schedule III of the Rules contains the conditions
of licence enumerated as (a) to (h) of condition No.1.

      A conjoint reading of these provisions makes it abundantly clear that
it is only the State Government which is empowered to prescribe conditions
for grant of licence by framing Rules and respondent No.1 is only
empowered to issue licence subject to such conditions as prescribed by the
State Government. No provision under the Act or the Rules is brought to
the notice of this Court under which this power of the State Government is
delegated to respondent No.1.  In the absence of such delegation,
respondent No.1 has no power or jurisdiction to impose any condition other
than the one, which is prescribed under Schedule III to the Rules. At best,
respondent No.1 can only request the State Government to appropriately
amend the Rules and the Schedule for deletion of the word Corporation
from the name of the business establishments of the licencees.

      For the above-mentioned reasons, the impugned proceedings issued
by respondent Nos.1 and 3 are held as wholly without jurisdiction and they
are accordingly quashed.

      The writ petition is accordingly allowed. As a sequel to the allowing
of the writ petition, interim order dated 10.11.2011 in WPMP.No.37049 of
2011 is vacated and WPMP.No.37049 of 2011 and WVMP.No.4764 of 2011      
stand disposed of as infructuous.
____________________________    
JUSTICE C.V. NAGARJUNA REDDY      
11th June, 2015

The Division Bench in this case having disagreed with the view taken by another Division Bench of this Court in Bilasraika Sponge Iron Pvt. Ltd., Hyderabad V. Devi Trading Co., Hongkong( ) (for short Bilasraika) formulated the following questions, which consequently require determination by this Full Bench: a) Whether the Court as defined under Section 2 (e) of the Act, is entitled to dispose of the application filed under Section 9 of the Act before initiation of the arbitral proceedings under section 21 of the Act, ex- parte without giving notice to the respondents, if the facts and circumstances so warrant? b) Whether the Court as defined under Section 2 (e) of the Act, is entitled to grant any interim order pending disposal of the interim measure application under Section 9 of the Act? c) Whether further application pending disposal of the interim measure under Section 9 of the Act, is maintainable?=whether a Court can dispose of the application filed under Section 9 of the Act even before initiation of arbitral proceedings under Section 21 of the Act is concerned, requires no further discussion in view of the judgments of the Supreme Court in Sundaram Finance (supra) and in Firm Ashok Traders (supra), which we have already considered in the foregoing paragraphs. Thus, we answer the questions as framed in the order of reference as follows:- the Court as defined under Section 2(e) of the Act, is undoubtedly entitled to dispose of the application filed under Section 9 of the Act even before initiation of the arbitral proceedings under Section 21 of the Act. The Court, however, cannot dispose of such application ex parte without giving notice to the respondents, but Court can pass ex parte ad interim order pending the application filed under Section 9 of the Act.

THE HONBLE THE ACTING CHIEF JUSTICE SRI DILIP B.BHOSALE AND THE HONBLE SRI SRI JUSTICE M.S.RAMACHANDRA RAO          
AND
THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO            
         
C.M.A. No.1206 OF 2012  

12-06-2015

M/s.East India Udyog Limited  Appellant

Maytas Infra Limited & another    Respondents

Counsel for Appellant:  Sri M.Ravindernath Reddy
                        Sri A.Srinarayana

Counsel for Respondents:Sri S.Niranjan Reddy

<GIST:

>HEAD NOTE:  

? Cases referred:       1) 2011(5) ALD 327 (DB) = 2011 (4) ALT 297 (DB)
                        2) 2008 (2) ALD 693 (DB) = 2008 (3) ALT 631 (DB)
                        3) (1999) 2 Supreme Court Cases 479
                        4) (2004) 3 Supreme Court Cases 155
                        5) AIR (SC)-2007-0-2144
                        6) (2007) 7 SCC 125
                        7) (2002) 2 SCC 510
                        8) [ 2014(3) BomCR 551]
                        9) (2010) 2 GLR 512 = MANU/GH/0312/2009  
                        10) AIR 1999 MP 271
                        11) [2014(4) RLW 3660 (Raj.)]
                        12) [2003(2) ARBLR 259 (Gujarat)]
                        13) [2008(3) ARBLR 295 (Kar)]

THE HONBLE THE ACTING CHIEF JUSTICE SRI DILIP B.BHOSALE          
AND
THE HONBLE SRI JUSTICE M.S.RAMACHANDRA RAO          
AND
THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO            

C.M.A. No.1206 OF 2012  

JUDGMENT: (per the Honble The Acting Chief Justice Sri Dilip B.Bhosale)


        The order of reference dated 28th January, 2013, which
has occasioned the constitution of this Full Bench, has been
passed by a Division Bench in the instant Civil Miscellaneous
Appeal. The Division Bench in this case having disagreed with
the view taken by another Division Bench of this Court in
Bilasraika Sponge Iron Pvt. Ltd., Hyderabad V. Devi
Trading Co., Hongkong( ) (for short Bilasraika) formulated
the following questions, which consequently require
determination by this Full Bench:

a)      Whether the Court as defined under Section 2 (e) of
the Act, is entitled to dispose of the application filed
under Section 9 of the Act before initiation of the
arbitral proceedings under section 21 of the Act, ex-
parte without giving notice to the respondents, if the
facts and circumstances so warrant?

b)      Whether the Court as defined under Section 2 (e) of
the Act, is entitled to grant any interim order
pending disposal of the interim measure application
under Section 9 of the Act?

c)      Whether further application pending disposal of the
interim measure under Section 9 of the Act, is
maintainable?


02)             The Division Bench, in the instant appeal, also
considered the judgment of this Court in Gulf Oil Corporation
Ltd., Hyderabad V. Singareni Collieries Co. Ltd.,
Kothagudem( ) (for short Gulf Oil) and having noticed the view
taken therein observed that the learned Judges were unable to
prima facie agree with the opinion of the Division Bench in
Bilasraika with regard to the power of the Court to pass an
ad-interim order/measure before disposal of interim measure
application filed under Section 9 of The Arbitration & Conciliation
Act, 1996 (for short the Act).

03)             It would be advantageous to reproduce the relevant
observations made by this Court in Bilasraika for understanding
better the background against which the Division Bench in the
instant Civil Miscellaneous Appeal framed the aforementioned
questions and referred to Full Bench. The relevant paragraphs
16, 17 and 21 read thus:-

16.    Since the jurisdiction to order interim measures
is conferred on the Court, in respect of any grievance
of a party before or during arbitral proceedings, it is
axiomatic that the Court has the power, authority and
jurisdiction to order ad-interim measures as well and
pending ordering of measures after hearing affected
parties (arrayed as respondent to an application under
Section 9).  The appeal provided under Section 37 of the
1996 Act comprises within its locus an appeal against an
order granting ad-interim measures, pending passing of final
orders under Section 9 of the 1996 Act as well.


        17.     In the considered view of this Court since
Section 9 of the 1996 Act incorporates a power in the
Court to grant ad-interim measures, pending grant of
measures after hearing the concerned parties as well
and without the necessity of reliance on the
provisions of Order XXXVIII Rule 5 CPC, the order of
this Court dated 12.1.2011 could be considered
proprio vigore an order under Section 9 of the 1996
Act granting ad-interim measures.  Such an order
could be appealed against under Section 37 of the
1996 Act.

        21.     In the view we have taken; that the power to pass
an order granting ad-interim measures before hearing
the respondent in an application under Section 9 of
the 1996 Act is also comprehended within the scope
of the powers granted under Section 9, the order dated
12.1.2011 could be truly and fairly considered an order
passed under Section 9 and it would not be necessary, in the
facts and circumstances of this case, for the appellant to
await the passing of an order under order XXXVIII Rule 6
CPC and to pursue remedies thereagainst.  This appeal is
therefore maintainable as an appeal against an order passed
under Section 9 of the 1996 Act.  This issue is answered
accordingly and in favour of the appellant.
(emphasis supplied)

04)             In Gulf Oil (supra), the Division Bench while dealing
with Section 9 of the Act held that it only provides for the interim
arrangement, protection or any direction, which may warrant on
the facts and circumstances and a party can invoke the said
provision to seek any such relief as specified thereunder.  It was
further observed that such relief can be invoked even before or
during the arbitral proceedings or at any time after the Award
but before it is enforced and that the relief as provided for or the
application, which needs to be filed under Section 9 of the Act, is
only for an interim measure and not for any substantive relief.

4.1)            It would be relevant to reproduce the relevant
observations made by this Court in Gulf Oil (supra), which read
thus:-
12.    In spite of such clear and categorical letter of the law
under the aforesaid provision, it is brought to our notice
that pending all such applications filed under Section
9 of the Act, seeking interim reliefs or measures or for
any directions, once again further interim applications
are being filed like the present one which is appealed
against in this appeal, seeking further or varied interim
reliefs by way of injunctions and directions which only
amounts to duplication of the very enquiry and adds to the
delays in disposal of main interim application and repetition
of the exercise.  Such action is not only permissible and
contemplated under the law but goes far beyond the
scope of provision and objects intended under Section
9 of the Act. Therefore, it has to be seen that the very
application filed under Section 9 of the Act itself
should be treated as an interim application alone and
shall accordingly be disposed of on the same
procedure or approach as normally followed.  This
Court is informed during the course of arguments that even
the main applications filed under Section 9 of the said Act
are being kept for quite long time for some or other reason
including due to pendency of such further interlocutory
applications and are being treated as a substantive
application almost on par like a regular suit or other O.P.,
touching upon the main lis. However, having regard to
the very nature of the proceedings as provided for
and as stated above, necessarily wherever such
applications are being filed by the parties, the Court
should take up the main application itself and dispose
of in the same manner as an interim application but
not to entertain any interim applications.  In this case,
no doubt, the Court below has rejected the present interim
application on the ground that it is in total variance with the
main relief without taking up main applications. We refrain
from expressing any opinion on merits either way. Instead
of entertaining applications of this nature, which may give
scope to the parties to go on filing one application after the
other pending the main application under Section 9 of the
Act, the endeavour should be to take up the main
application under Section 9 of the Act and dispose of the
same as expeditiously as possible after appearance of the
respondent. Therefore, we hold that having regard to
the nature of proceedings as contemplated under
Section 9 of the Act, further interim application as has
been filed and framed is neither maintainable nor can
require to be considered by the Court.  However, by
taking into consideration the apprehensions expressed
across the Bar in regard to long pendency and delays in
disposal of the applications filed under Section 9 of the Act,
we hold that all such applications shall have an expeditious
disposal as expeditiously as possible, immediately after the
appearance of the respondent not later than three months
from such appearance of the respondent. Such approach
would more apt and objectively meets the ends of justice.
(emphasis supplied)


4.2)            Thus, from perusal of both the judgments, difference
of opinion is apparent.  The reference order, therefore, having
disagreed with the view taken in BILASRAIKA, referred the
questions for determination to Full Bench.

05)             The Division Bench, in the instant appeal, after
considering the judgments in Bilasraika and in Gulf Oil and
after referring to the judgment of the Supreme Court in
Sundaram Finance Ltd., V. NEPC India Ltd.,( )    and  so also
to the Rules framed by this High Court being The Andhra
Pradesh Arbitration Rules, 2000 (for short the Rules), in the
concluding paragraph observed thus:-
This court in GULF OIL case (referred supra 2) held that
having regard to the nature of the proceedings as
contemplated under Section 9 of the Act, further interim
application is not maintainable and that application filed
under Section 9 of the Act shall have to be disposed of
expeditiously, which judgment was not cited or considered in
the later judgment of this Court in BILASRAIKA case.  As
we are unable to prima facie agree with the opinion of
the later judgment of this court in BILASRAIKA case
with regard to the power of the Court to pass an
ad-interim order/measure before disposal of interim
measure application filed under Section 9 of the Act
and in view of the important issues involved which will have
a far reaching effect on various applications pending before
the Civil Courts under Section 9 of the Act, we deem it
appropriate that the matter be referred to a Full Bench for
an authoritative judgment on the following issues.
(emphasis supplied)

5.1)            The issues/questions famed by the Division Bench
are already reproduced in the first paragraph of this Judgment.

06)             The relevant facts, which are necessary for
consideration of the questions referred to the Full Bench, are
that the appellant filed a petition under Section 9 of the Act for
the relief of injunction restraining the 2nd respondent from
paying and the 1st respondent from receiving the amounts
covered by three(3) performance bank guarantees
dated 03.10.2007, 17.01.2008 and 12.12.2007 for
Rs.3,48,625/-, 15,78,950/- and Rs.24,07,500/- respectively. The
1st respondent is a Company while the 2nd respondent is a Bank.
The appellant is engaged in manufacture, supply and export of
various types of power transformers with high quality and in
conformity with the ISO-9001:2000 standard.  Andhra Pradesh
Northern Power Distribution Company Limited (for short
APNPDCL) had awarded a contract to one M/s. Manchu Konda  
Prakashan & Company for electrification of various divisions
situated in northern districts of Andhra Pradesh.  The said work
was taken up by the 1st respondent informally from M/s. Manchu
Konda Prakashan & Company.  The 1st respondent, which  
required transformers for the project at Bansawada division of
Nizamabad District of north Andhra Pradesh, issued the purchase
order dated 30-07-2007 to the appellant for supply of
1791 transformers.  The total value of the order was
Rs.8,72,01,650/-.  Out of 1791 transformers, 799 were to be of
16 KVA and 992 were to be of 25 KVA. The terms and conditions
were stipulated in the purchase order. Pursuant to the
understanding with the 1st respondent, the aforementioned bank
guarantees were furnished in favour of the 1st respondent by the
2nd respondent agreeing to pay the value of bank guarantees on
its invocation. Pursuant to the purchase order dated 30-07-2007,
the appellant started making supplies of transformers and the
last consignment was delivered in the month of March, 2008.
According to the appellant, representatives of 1st respondent and
APNPDCL inspected the transformers at the site and on their
satisfaction the transformers were transmitted. Further, on
receipt of material at site, the 1st respondent took steps for
release of payments as agreed under the purchase order and
cleared 90% of the amount payable. Further, according to the
appellant, there was a delay of 3 to 4 months in making
payments, for which the appellant did not make grievance
immediately and accepted the delayed payments in good faith.
Even after completion of six months, neither the payment was
made nor any grievance about the quality of transformers was
made by the 1st respondent or its customer-APNPDCL. The  
appellant contend that balance 10% of the amount was to be
paid by demand draft but payment was not made. The 1st
respondent claimed that balance amount payable was adjusted
towards the taxes paid by them. This claim of the 1st
respondent, according to the appellant, was absurd and not
consistent with the agreement between the parties. The
1st respondent also raised issues as to quality of transformers
when the appellant claimed the balance payment.  According to
the 1st respondent, inspite of repeated reminders, the appellant
did not take steps to replace the defective transformers or to
rectify the defects and in these circumstances, the
1st respondent claimed that they were left with no option but to
invoke the performance of bank guarantees furnished by the
appellant by cancelling the purchase order.

07)             We are not going into further details since we do not
propose to deal with the appeal on merits and we would like to
confine ourselves only to address the questions referred to this
Bench.  We also would like to clear that while narrating the
factual matrix, we shall not be understood to have expressed
any opinion on merits of the case.

08)             Mr.M.Ravindernath Reddy, learned counsel for the
appellant, and Mr.S.Niranjan Reddy, learned counsel for the
respondents, at the outset, submitted that having regard to the
facts and circumstances of the instant appeal and so also the
judgments of this Court in Bilasraika and Gulf Oil (supra), the
first and second questions as framed in the reference order
dated 28-01-2013 need to be reframed.  We would not like to
examine whether the questions/issues referred are correctly
framed and we would like to proceed to address the questions,
as they are, in the light of the observations made in the
reference order dated 28-01-2013 and in the light of the law
declared in Bilasraika and Gulf Oil (supra) of this Court.  At
this stage, we deem it appropriate to record that both the
learned counsel for the parties submitted that application under
Section 9 of the Act cannot be decided ex parte without giving
notice to the respondents, but the Court, as defined under
Section 2(3) of the Act, is entitled to grant an ad-interim order
pending disposal of the interim measure application under this
provision. In support of their contention, they relied upon the
judgments of the Supreme Court, this High Court and the other
High Courts and also invited our attention to the relevant
provisions of the Act and also the Rules.

09)             The provisions of the Act, which are relevant for our
purpose, are Sections 2(e), 9, 17, 21 and Section 37. Section
2(e) defines Court.  Since the definition of the word Court is
not in dispute we refrain from reproducing the same. Section 9
of the Act, which gives power to the Court to pass interim
orders, and the interpretation of which we are concerned with in
the present case reads thus:
        9.     Interim measures, etc. by Court :
        A party may, before or during arbitral proceedings or
at any time after the making of the arbitral award but before
it is enforced in accordance with Section 36, apply to a
Court,-
        (i)     for the appointment of a guardian for a minor
or a person of unsound mind for the purposes of arbitral
proceedings; or
        (ii)    for an interim measure of protection in respect
of any of the following matters, namely,-
        (a)     the preservation, interim custody or sale of any
goods which are the subject-matter of the arbitration
agreement;
        (b)     securing the amount in dispute in the
arbitration;
        (c)     the detention, preservation or inspection of any
property or thing which is the subject-matter of the dispute
in arbitration, or as to which any question may arise therein
and authorizing for any of the aforesaid purposes any person
to enter upon any land or building in the possession of any
party, or authorising any samples to be taken or any
observation to be made, or experiment to be tried, which
may be necessary or expedient for the purpose of obtaining
full information or evidence;
        (d)     interim injunction or the appointment of a
receiver;
        (e)     such other interim measure of protection as
may appear to the Court to be just and convenient;

And the Court shall have the same power for making orders
as it has for the purpose of, and in relation to, any
proceedings before it.

9.1)            As this Section refers to arbitral proceedings, it is
necessary to reproduce Section 21 of the Act, which relates to
commencement of arbitral proceedings. Section 21 reads thus:-
21.    Commencement of arbitral proceedings:
        Unless otherwise agreed by the parties, the arbitral
proceedings in respect of a particular dispute commence on
the date on which a request for that dispute to be referred
to arbitration is received by the respondent.


9.2)            Section 17 of the Act confers jurisdiction on the
Arbitral Tribunal as defined under Section 2(d) of the Act to pass
interim orders.  Section 17 of the Act reads thus:-
17.    Interim measures ordered by arbitral tribunal:
        (1)  Unless otherwise agreed by the parties, the
arbitral tribunal may, at the request of a party, order a party
to take any interim measure of protection as the arbitral
tribunal may consider necessary in respect of the subject-
matter of the dispute.
        (2)     The arbitral tribunal may require a party to
provide appropriate security in connection with a measure
ordered under sub-section (1).

10)             A glance at Section 9 would show that an application
for interim order/measure can be filed before or during arbitral
proceedings or at any time after the making of arbitral award,
but before it is enforced in accordance with Section 36.   The
Arbitral proceedings, contemplated by Section 9 commences
on the date on which a request for particular dispute is received
by the respondent for its reference to arbitration, as provided for
in Section 21 of the Act.  In this context, we will have to
understand what the expression before or during arbitral
proceedings occurring in Section 9 of the Act would exactly
mean.  The first question referred for our consideration is
whether the Court can dispose of the application filed under
Section 9 of the Act  before initiation of arbitral proceedings
under Section 21 of the Act, ex parte, without giving notice to
the respondents, if the facts and circumstances so warrant.  In
view thereof, the expression before or during arbitral
proceedings occurring in Section 9 of the Act assumes
importance.

10.1            Section 17 of the Act provides that the arbitral
tribunal may, at the request of the party, order a party to take
any interim measure of protection as the arbitral tribunal may
consider necessary in respect of the subject matter of the
dispute.  From a bare perusal of this provision, it is clear that
the arbitral tribunal can pass interim order during pendency of
the arbitration before the tribunal, while Section 9 empowers the
Court to make an order in the nature of interim measure before
or during arbitral proceedings or at any time after making of the
arbitral award but before it is enforced in accordance with
Section 36 of the Act.

10.2            Section 37 deals with appealable orders.  Under
Section 37, for our purpose, the order granting or refusing to
grant any measure under Section 9 of the Act is appealable to
the Court authorized by law to hear the appeals from original
decree of the Court passing the order.

11.             Next, we would like to consider the relevant Rules.
This High Court, in exercise of the powers conferred under
Section 82 of the Act made the Rules called as Andhra Pradesh
Arbitration Rules, 2000 (for short, the Rules).  Rule 4 thereof,
provides for the procedure for making applications under
Sections 8, 9, 14, 27, 34, 39 & 43 of the Act. In the present
appeal, we are concerned only with the application under Section
9 of the Act.

11.1            Rule 6 of the Rules, provides that in an application
for interim measure filed under Section 9, before the
commencement of the arbitral proceedings, the applicant should
specifically refer to the steps, if any, already taken to seek
arbitration and that the applicant is willing and prepared to take
necessary steps for utmost expedition to seek reference to
arbitration in terms of the arbitration agreement/clause.  Thus,
as stated in this Rule, it is clear that one can file application for
interim order/measure under Section 9 even before the
commencement of the arbitral proceedings subject to the
applicant specifically referring in the application the steps, if any,
already taken to seek arbitration or making statement in the
application to the effect that the applicant is willing and prepared
to take necessary steps with utmost expedition to seek reference
to arbitration in terms of arbitration agreement/clause.  If the
application is not filed by the party in accordance with the
provisions of this Rule in particular, the Court is empowered to
reject the application after giving an opportunity to the applicant
to rectify the defects and, if necessary, giving a hearing to the
party as contemplated under Rule 7 of the Rules.

12.             Having seen all the relevant provisions of the Act and
the Rules, in the light of the questions that are referred, we
would now like to proceed to consider the judgments of the
Supreme Court relied upon by learned counsel for the parties in
support of their contentions.

13)             The arbitral proceedings, as we have seen,
commence only when a request to refer the dispute to
arbitration is received by the respondent as per Section 21 of the
Act.  The material words occurring in Section 9 are before or
during the arbitral proceedings.  This clearly contemplates two
stages when the Court can pass interim orders i.e., during
arbitral proceedings or before the arbitral proceedings.  The
word before occurring in Section 9 will have to be interpreted to
mean that the Court can pass interim orders before the
commencement of arbitral proceedings. As observed by the
Supreme Court in Sundaram Finance (supra) any other
interpretation, insofar as the word before occurring in Section 9
is concerned, will have the effect of rendering the word before
in Section 9 as redundant. This is clearly not permissible.
In Sundaram Finance (supra) the Supreme Court considered
the question whether under Section 9 of the Act, the Court has
jurisdiction to pass interim orders even before arbitral
proceedings commence and before an arbitrator is appointed.
Paragraph 19 of this judgment is relevant for our purpose, which
reads thus:-

19.    When a party applies under Section 9 of the 1996
Act, it is implicit that it accepts that there is a final and
binding arbitration agreement in existence. It is also implicit
that a dispute must have arisen which is referable to the
Arbitral Tribunal. Section 9 further contemplates arbitration
proceedings taking place between the parties.
Mr.Subramanium is, therefore, right in submitting that
when an application under Section 9 is filed before the
commencement of the arbitral proceedings, there has
to be manifest intention on the part of the applicant to
take recourse to the arbitral proceedings if, at the
time when the application under Section 9 is filed, the
proceedings have not commenced under Section 21 of
the 1996 Act.  In order to give full effect to the words
"before or during arbitral proceedings" occurring in Section
9, it would not be necessary that a notice invoking the
arbitration clause must be issued to the opposite party
before an application under Section 9 can be filed. The
issuance of a notice may, in a given case, be sufficient to
establish the manifest intention to have the dispute referred
to Arbitral Tribunal. But a situation may so demand that a
party may choose to apply under Section 9 for an interim
measure even before issuing a notice contemplated by
Section 21 of the said Act. If an application is so made, the
court will first have to be satisfied that there exists a valid
arbitration agreement and the applicant intends to take the
dispute to arbitration.  Once it is so satisfied the court will
have the jurisdiction to pass orders under Section 9 giving
such interim protection as the facts and circumstances
warrant.  While passing such an order and in order to ensure
that effective steps are taken to commence the arbitral
proceedings, the Court while exercising jurisdiction
under Section 9 can pass a conditional order to put
the applicant to such terms as it may deem fit with a
view to see that effective steps are taken by the
applicant for commencing the arbitral proceedings.
What is apparent, however, is that the court is not debarred
from dealing with an application under Section 9 merely
because no notice has been issued under Section 21 of the
1996 Act.
(emphasis supplied)

14)             In Firm Ashok Traders and another V.
Gurumukh Das Saluja and others( ) the Supreme Court
considered two questions; 1) effect of the bar created by
Section 69(3) of the Partnership Act on maintainability of an
application under Section 9 of the Act; and 2) in the event of the
question of maintainability being decided for Group A, what
interim arrangement, whether by way of appointment of receiver
or otherwise, would meet the ends of justice?   While dealing
with these two questions, the Supreme Court in paragraph 18
observed thus:-
18.    Under the A&C Act, 1996, unlike the predecessor Act
of 1940, the Arbitral Tribunal is empowered by Section 17 of
the Act to make orders amounting to interim measures. The
need for Section 9, in spite of Section 17 having been
enacted, is that Section 17 would operate only during the
existence of the Arbitral Tribunal and its being functional.
During that period, the power conferred on the Arbitral
Tribunal under Section 17 and the power conferred on the
court under Section 9 may overlap to some extent but so far
as the period pre- and post- the arbitral proceedings is
concerned, the party requiring an interim measure of
protection shall have to approach only the court. The party
having succeeded in securing an interim measure of
protection before arbitral proceedings cannot afford to
sit and sleep over the relief, conveniently forgetting
the proximately contemplated or manifestly
intended arbitral proceedings itself. If arbitral
proceedings are not commenced within a reasonable
time of an order under Section 9, the relationship
between the order under Section 9 and the arbitral
proceedings would stand snapped and the relief
allowed to the party shall cease to be an order made
'before' i.e. in contemplation of arbitral proceedings. The
court, approached by a party with an application under
Section 9, is justified in asking the party and being told how
and when the party approaching the court proposes to
commence the arbitral proceedings. Rather, the scheme in
which Section 9 is placed obligates the court to do so. The
court may also while passing an order under Section 9 put
the party on terms and may recall the order if the party
commits breach of the terms.
(emphasis supplied)

15)             An application under Section 9 under the scheme of
the Act is not a suit.  Though such application results in initiation
of civil proceedings, the time or the stage for invoking the
jurisdiction of Court under Section 9 can be before or during
arbitral proceedings, or at any time after making of the arbitral
award but before it is enforced in accordance with Section 36.
Section 9 though permits application being filed in the Court
before the commencement of the arbitral proceedings does not
give any indication of how much before. The party invoking
Section 9 may not have actually commenced the arbitral
proceedings but must be able to satisfy the Court that the
arbitral proceedings are actually contemplated or manifestly
intended as observed in Sundaram Finance (supra) and are
positively going to commence within a reasonable time.  What is
a reasonable time, as observed in Firm Ashok Traders (supra),
would depend on the facts and circumstances of each case and
the nature of interim relief sought for would itself give an
indication thereof, but the distance of time must not be such as
would destroy the proximity of relationship of the two events
between which it exists and elapses.  Thus, it is settled that an
application for interim order/measure under Section 9 can be
filed even before commencement of the arbitral proceedings and
if any such application is filed the applicant has to make his
intention clear to take recourse to the arbitral proceedings or the
Court while exercising jurisdiction under this provision can pass
a conditional order to put the applicant to such terms as it may
deem fit with a view to see that effective steps are taken by the
applicant for commencement of the arbitral proceedings.  If the
arbitral proceedings are not commenced within a reasonable
time of an order under Section 9, the relationship between the
order under this provision and the arbitral proceedings would
stand snapped and the relief allowed to the party shall cease to
be an order made before  i.e., in contemplation of arbitral
proceedings.

16)             The Supreme Court in Arvind Constructions Co.
Pvt. Ltd., V. Kalinga Mining Corporation( ), though did not
consider the question that has fallen for reconsideration, while
considering the provisions contained in Section 9 and while
dealing with the argument that the power under this Section is
independent of the Specific Relief Act or that the restrictions
placed by the Specific Relief Act cannot control the exercise of
power under Section 9, observed that the said argument cannot
prima facie be  accepted. The power under Section 9 is conferred
on the District Court and for exercising the power no special
procedure is prescribed by the Act in that behalf. It further
clarified that the Court entertaining an application under
Section 9 of the Act shall have the same power for making
orders as it has for the purpose and in relation to any
proceedings before it.  The relevant observations made by the
Supreme Court in Arvind Constructions reads thus:-
The argument that the power under Section 9 of the Act is
independent of the Specific Relief Act or that the restrictions
placed by the Specific Relief Act cannot control the exercise
of power under Section 9 of the Act cannot prima facie be
accepted. The reliance placed on Firm Ashok Traders and
Anr. Vs. Gurumukh Das Saluja and Ors. [(2004) 3 S.C.C.
155] in that behalf does not also help much, since this Court
in that case did not answer that question finally but prima
facie felt that the objection based on Section 69 (3) of the
Partnership Act may not stand in the way of a party to an
arbitration agreement moving the court under Section 9 of
the Act. The power under Section 9 is conferred on the
District Court. No special procedure is prescribed by
the Act in that behalf. It is also clarified that the Court
entertaining an application under Section 9 of the Act
shall have the same power for making orders as it has
for the purpose and in relation to any proceedings
before it. Prima facie, it appears that the general rules
that governed the court while considering the grant of
an interim injunction at the threshold are attracted
even while dealing with an application under Section 9
of the Act. There is also the principle that when a power is
conferred under a special statute and it is conferred on an
ordinary court of the land, without laying down any special
condition for exercise of that power, the general rules of
procedure of that court would apply. The Act does not prima
facie purport to keep out the provisions of the Specific Relief
Act from consideration.  No doubt, a view that exercise of
power under Section 9 of the Act is not controlled by the
Specific Relief Act has been taken by the Madhya Pradesh
High Court. The power under Section 9 of the Act is not
controlled by Order XVIII Rule 5 of the Code of Civil
Procedure is a view taken by the High Court of Bombay. But,
how far these decisions are correct, requires to be
considered in an appropriate case. Suffice it to say that on
the basis of the submissions made in this case, we are not
inclined to answer that question finally.  But, we may
indicate that we are prima facie inclined to the view
that exercise of power under Section 9 of the Act must
be based on well recognized principles governing the
grant of interim injunctions and other orders of
interim protection or the appointment of a receiver.
(emphasis supplied)

16.1)           The Supreme Court in Adhunik Steels Ltd., V.
Orissa Manganese and Minerals (P) Ltd.( ) while dealing with
Section 9 of the Act in paragraph 11 observed thus:-
        It is true that Section 9 of the Act speaks of the court by
way of an interim measure passing an order for protection,
for the preservation, interim custody or sale of any goods,
which are the subject-matter of the arbitration agreement
and such interim measure of protection as may appear to
the court to be just and convenient.  The grant of an interim
prohibitory injunction or an interim mandatory injunction
are governed by well-known rules and it is difficult to
imagine that the legislature while enacting Section 9 of the
Act intended to make a provision which was dehors the
accepted principles that governed the grant of an interim
injunction.  Same is the position regarding the appointment of a
receiver since the section itself brings in the concept of just and
convenient while speaking of passing any interim measure of
protection.  The concluding words of the section, and the
courtshall have the same power for making orders as it has for the
purpose and in relation to any proceedings before it also suggest
that the normal rules that govern the court in the grant of interim
orders is not sought to be jettisoned by the provision.  Moreover,
when a party is given a right to approach an ordinary court
of the country without providing a special procedure or a
special set of rules in that behalf, the ordinary rules
followed by that court would govern the exercise of power
conferred by the Act.  On that basis also, it is not possible
to keep out the concept of balance of convenience, prima
facie case, irreparable injury and the concept of just and
convenient while passing interim measures under Section 9
of the Act.
(emphasis supplied)


16.2)           In ITI Ltd. V. Siemens Public Communications
Network Ltd.( ) the Supreme Court while dealing with the
question whether the revision petition under Section 115 of the
Civil Procedure Code lies to the High Court as against an order
made by a civil court in an appeal preferred under Section 37 of
the Act observed that it is true in the present Act application of
the Code of Civil Procedure is not specifically provided for, but
what is to be noted is: there is no express prohibition against the
application of the Code to a proceeding arising out of the Act
before a civil court. We find no such specific exclusion of the
Code in the Act.  When there is no express exclusion, we cannot
by inference hold that Code is not applicable.

16.3)           The power to grant interim order/measure under
Section 9 is conferred on a Civil Court.  No special procedure is
prescribed by the Act in that behalf.  It is equally true that in the
present Act, application of the Code of Civil Procedure is not
specifically provided for, but there is no express prohibition
against the application of the Code to a proceeding arising out of
the Act before a Civil Court.  In other words, there is no specific
exclusion of the Code in the Act, and therefore, it cannot be
stated, as observed by the Supreme Court in Siemens Public
Communications Network Limited (supra) the Code is not
applicable.  The general rules, therefore, would stand attracted,
for the Court, while considering the grant of interim
order/measure at the threshold, while dealing with an application
under Section 9 of the Act.  The grant of interim order/measure
are governed by well known Rules and in view thereof, the
Supreme Court in Adhunik Steels Limited (supra) observed
that it is difficult to imagine that the Legislature while enacting
Section 9 of the Act intended to make a provision which was
dehors the accepted principles that govern the grant of interim
injunction.  It is, thus, clear that when a party is given the right
to approach the Civil Court under Section 9 of the Act, without
providing a special procedure or special set of Rules in that
behalf, ordinary rules followed by that Court would govern the
exercise of power conferred by the Act including the power to
grant an ex parte ad-interim order.

17)             We would also like to refer to the judgments of
different High Courts dealing with the provision contained in
Section 9 of the Act.

17.1)           The Bombay High Court in Mrs.Perin Hoshang  
Davierwalla & Anr. V. Mr.Kobad Dorabji Devierwalla &
Ors( ) dealt with the appeal arising from the order passed by the
trial court rejecting the appellants application under Section 9 of
the Act seeking appointment of Court Receiver of the business
and assets of the partnership firm of the appellants and
respondents. In this appeal, the Bombay High Court while
dealing with the contentions urged on behalf of the respondents
that an order granting or refusing grant of ad interim relief
pending disposal of an arbitration application under Section 9, is
an order passed by the Court in exercise of its power under
Order 39 Rule 1 of the Code of Civil Procedure.  In paragraph 8,
the Bombay High Court observed thus:-

8.     It is difficult to see how any order passed by the
Court in an application to it under Section 9 of the Act is not
an order passed under Section 9 by reason of the Court
having exercised powers under Order 39 Rule 1. As
explained in the case of Arvind Constructions Co. (P) Ltd.
(supra), whilst powers are conferred on the District Court
under Section 9 of the Act for ordering an interim measure
of protection, no special procedure is prescribed by the Act
in that behalf. Whilst entertaining an application under
Section 9 of the Act, the Court has the same power for
making orders as it has for the purpose of and in relation to
any proceeding before it.  This is on the principle that when
a power is conferred under a special statute and on an
ordinary court of land without laying down any special
condition for exercise of that power, the general rules of
procedure of that court would apply. Thus, every order by
the District Court under Section 9, whether ad-interim or
interim, is passed by using powers of the Court which are
ordinarily exercised whilst deciding an interlocutory
application before it. These include powers under Order 39
or well recognised principles for exercise of such powers.
The order passed by the court in an application made to it
under Section 9 of the act by exercising such powers is very
much an order passed under Section 9, and is appealable
under Section 37 of the Act. Grant or refusal of an interim
measure of protection by way of an ad-interim order under
Section 9 of the Act is, thus, an appealable order under
Section 37. There is nothing in law which requires the life of
such an order to extend beyond the pendency of the
proceeding under Section 9. The judgment of our court in
Conros Steels Pvt. Ltd. (supra) has not decided the point as
to whether or not an ad-interim order passed under
Section 9 is appealable under Section 37. A casual reference
to 'final order' under Section 9 being appealable cannot be
termed as laying down any such law.

17.2)           The High Court of Gauhati in Sati Oil Udyog Ltd.
and Anr. V. Avanti Projects and Infrastructure Ltd.( ) while
dealing with the provisions contained in Section 9 of the Act and
the preliminary objection with regard to maintainability of the
appeal under consideration and after noticing that the trial court,
for protection of the suit property, directed that the appellants
should not create any third party interest over the suit property
and maintain status quo until further orders, observed that there
can be no doubt that the impugned directions amount to
granting of injunction.  It was further observed that whether
such an order, because of the fact that it has been passed
ex parte, would fall within the ambit of Section 9 and be
regarded as an interim measure within the meaning of Section 9
and/or whether such directions, as have been given by the
interim order, would be amenable to the appellate provisions
aimed in Section 37(1)(a) of the Act, are questions required to
determine. These questions were ultimately answered in the
affirmative.

17.3)           The Madhya Pradesh High Court in Jabalpur Cable
Network Pvt.Ltd. V. E.S.P.N. Software India Pvt. Ltd. and
Ors.( ) observed that it cannot be disputed that under
Section 9 of the Act the Court has power to grant interim
injunction or to take such other interim measure of protection as
may appear to the Court to be just and convenient.

17.4)           The High Court of Rajasthan (Jaipur Bench) in Road
Infrastructure Development Company of Rajasthan Ltd. V.
I.V.R.C.L. Ltd.( ) observed that any order granting or refusing
to grant any measure under Section 9 would be appealable.
The words any measure are words of widest amplitude. The
use of the term any measure would obviously include an
interim order.  Therefore, the words any measure would
include an interim order passed by the Court while exercising its
power under Section 9.

17.5)           The High Court of Gujarat in Aventis Pasteur S.A
V. Cadila Pharmaceuticals Ltd.( ) after considering the
provisions of Sections 9 and 37 of the Act held that the appeal
filed against an ex parte ad interim injunction under
Section 37 of the Act is maintainable.

17.6)           The High Court of Karnataka in Symphony Services
Corp.(India) Pvt. Ltd. V. Sudip Bhattacharjee( ) has taken
a view in relation to the maintainability of an appeal under
Section 37  that an appeal is maintainable only against a final
order passed under Section 9 of the Act. The relevant
observations made in this judgment read thus:-
        13.    In the case on hand, it is to be noticed that the original
proceedings under Section 9 of the Act are still pending.  It is no
doubt true that an application is filed treating it as under Section 9
of the Act, but however, it is not an interim measure but is an
interim measure, which would necessarily mean that it is only an
application, which is filed, pending adjudication of the main
petition under Section 9 of the Act.  Hence, I am of the view that
Section 37 (1) (a) of the Act is not applicable and the impugned
order cannot be termed as a final order under Section 9 of the Act,
which would make it an appealable order.  Hence, the petition is
maintainable.

18)             Having considered the judgments of the Supreme
Court and the High Courts and after having perused the relevant
provisions carefully, it appears to us that when an application is
made under Section 9 of the Act to a Court, such application
gives rise to a proceeding, which is original in nature.  Such a
proceeding is not dependent upon the pendency of any other
proceedings such as any suit or appeal. As a matter of fact,
Section 9 itself makes it clear that an application seeking interim
measure, as provided therein, may be made even before any
arbitral proceedings are commenced. In other words, even
before commencement of arbitral proceedings, an application
under Section 9 can be filed and such application, being original
in nature, in our opinion, would stand on the same footing as the
proceedings within the meaning of Section 141 of the Civil
Procedure Code.  As observed earlier that no special procedure is
prescribed by the Act for dealing with an application for interim
measure/order under Section 9 thereof and further when power
is conferred under a special statue on a Civil court without laying
down any special condition for exercise of that power, the
general rules that governed the Court while considering the
grant of interim measure/order at the threshold are attracted.
Thus, when an application under Section 9 is made and during
pendency of such application, an ex parte ad interim order
becomes imperative, in the facts and circumstances of the case,
it is open to the Court to pass an ad interim ex parte order based
on well recognized principles contemplated by the provisions of
Order XXXIX Rules 1 and 2 of the Civil Procedure Code governing
the grant of interim injunctions and/or other orders of interim
protection or the appointment of a Receiver.  The power to grant
an ex parte interim order is derived by a Court under the
principle that every Court has the power to pass an order, which
it must pass so as to ensure that the application, made before it,
does not become infructuous merely because of the fact that no
specific provision has been made dispensing, in an emergent
situation, the necessity to pass an ex parte order.  In other
words, the Court cannot be stated to be completely helpless in
the matter of an ad-interim order/measure otherwise the entire
purpose of the application under Section 9 of the Act would
stand defeated, if ultimately the party approaching the Court
under Section 9 succeeds in the Arbitration proceedings.  It is
difficult to conceive that the Legislature, so intended while
providing the remedy to a party to approach the Court under
section 9 of the Act.  In short, when any power is expressly
granted by a statute, there is impliedly included in the grant,
even without special mention, every power and every control,
the denial of which would render the grant itself ineffective.

19)             Insofar as the question whether a Court can dispose
of the application filed under Section 9 of the Act even before
initiation of arbitral proceedings under Section 21 of the Act is
concerned, requires no further discussion in view of the
judgments of the Supreme Court in Sundaram Finance (supra)
and in Firm Ashok Traders (supra), which we have already
considered in the foregoing paragraphs. Thus, we answer the
questions as framed in the order of reference as follows:-

        the Court as defined under Section 2(e) of the Act, is
undoubtedly entitled to dispose of the application filed
under Section 9 of the Act even before initiation of the
arbitral proceedings under Section 21 of the Act. The
Court, however, cannot dispose of such application
ex parte without giving notice to the respondents, but
Court can pass ex parte ad interim order pending the
application filed under Section 9 of the Act.

       



20)             Registry is directed to place the Civil Miscellaneous
Appeal before the Court, which is assigned to hear such appeals,
for deciding it on merits in the light of the opinion expressed by
the Full Bench.
___________________  
DILIP B.BHOSALE, ACJ  
______________________  
M.S.RAMACHANDRA RAO, J      
_______________________  
A.RAMALINGESWARA RAO, J      
12th June, 2015.