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FAO(OS) 245/2009 & CM No. 8455/2009
Date of Decision: 11th August, 2009 K. K. MODI INVESTMENT AND FINANCIAL SERVICES P.LTD. ..... Appellant
Through: Mr. Jayant Bhushan, Senior Advocate with
Mr. Pravin Bahadur, Mr. Shanmuga Patro, Ms. Kanika Gomber, Ms. Mallika Joshi, Mr. Rajat Bhardwaj and
Mr. Rajan Narain, Advocates.
Through: Mr. Dhruv Wahi, Mr. K.V. Singh, Mr. Manish, Advocates for Respondent Nos. 2, 3 and 4.
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
JUDGMENT
1. Whether Reporters of the local newspapers may be allowed to see the judgment? No
2. Whether to be referred to the Reporter or not? No
3. Whether the judgment should be reported in the Digest? No J U D G E M E N T MUKUL MUDGAL, J. (ORAL)
1. This appeal arises against the order of the learned Single Judge dated 25th May, 2009 passed in OMP No. 292 of 2009. The learned Single Judge has concluded that there was no arbitration agreement between the appellant herein and respondent Nos. 2, 3 and 4. The learned Single Judge accordingly held that application under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred as „the Act‟) was not maintainable. The learned Single Judge 2009:DHC:3172-DB also held that the findings made by him in its order dated 25th May, 2009 would not preclude the appellant/petitioner from seeking remedies against the respondents under appropriate law.
2. We have heard the learned senior counsel appearing for the appellant.
3. We find no reason to differ from the findings of the learned Single Judge in respect of the maintainability of the application under Section 9 of the Act which is correctly based upon the interpretation of Section 7 of the Act. We are also of the considered opinion that in view of the observations of the Hon‟ble Supreme Court in the case of Sukanya Holdings (P) Ltd. vs. Jayesh H. Pandya & Anr. (2003) 5 SCC 531, the learned Single Judge‟s findings on this score cannot be faulted.
4. Mr. Bhushan, learned senior counsel appearing for the appellant/petitioner seeks leave to withdraw this appeal and indeed the application under Section 9 of the Act filed before the learned Single Judge as he wishes to file a civil suit. He has submitted that the observations made in the said judgment should not come in the way of the matters sought to be raised by him in the suit.
5. Learned counsel for the respondent has, however, submitted that the application under Section 9 of the Act having been decided on merits, there is no need for any clarification as sought by the appellant‟s counsel while withdrawing the appeal.
6. Indeed the learned Single Judge in the impugned judgment dated 25th March, 2009 has observed as follows:- “This however, would not preclude petitioner from seeking remedies against respondents under appropriate law.”
7. We are of the view that the learned Single Judge himself gave an observation in favour of the appellant permitting them to seek remedies against the respondents under appropriate law. It is also evident that the observations and findings were made by the learned Single Judge only in the context of the maintainability of the application under Section 9 of the Act.
8. The appeal is accordingly dismissed as withdrawn and stands disposed of. The pending application stands disposed of as well.
MUKUL MUDGAL [JUDGE] NEERAJ KISHAN KAUL [JUDGE] AUGUST 11, 2009 sb