Bombay High Court
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ARA48_12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ARBITRATION APPEAL NO. 48 OF 2012
M/s.Areeb Rolling Mills Pvt. Ltd. & Ors. ..... Appellants
VERSUS
NKGSB Co-operative Bank Ltd. ..... Respondents
Mr.Bharat L.Gandhi, i/b. K.C.Pandey for the Appellants.
Mr.N.N.Bhadrashete for the Respondents.
CORAM : R.D. DHANUKA, J.
DATED : 4
th
JANUARY, 2013
ORAL JUDGMENT
By this appeal filed under Section 37 of the Arbitration and Conciliation Act,
1996, appellants seek to challenge an order dated 5
th
July, 2012 passed by the
learned arbitrator rejecting application filed by the appellants on 16
th
September,
2011. By the said application, the appellants had applied for a direction against the
respondent bank to opt only for one remedy between the proceedings under section
84 of the Multistate Co-operative Societies Act 2002 and the SARFAESI Act,
2002.
2. Mr.Bhadrashete, the learned counsel appearing for the respondent raises
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preliminary objection in respect of the maintainability of this appeal under Section
37 of the Act on the ground that though the appellants have in the cause title of the
Memorandum of Appeal has referred to the order passed by the learned arbitrator
as if the order passed under section 17 of the Act, on perusal of the averments and
prayers made in the said application, it is clear that the said application is not under
section 17 of the Arbitration and Conciliation Act, 1996 and such order is not an
appealable order under section 37 of the Act.
3. Perusal of the application filed by the appellants it is clear that by the said
application, appellants has sought direction to the respondents to opt only for one
remedy out of the two adopted by the bank. Such application is rejected by the
learned arbitrator. On plain reading of Section 17 of the Arbitration and
Conciliation Act, 1996, it is clear that the said provision is for grant of interim
measures of protection as the Arbitral Tribunal may consider necessary in respect
of the subject matter of the dispute and while considering such interim measures of
protection, the Arbitral Tribunal has power to require a party to provide appropriate
security in connection with such measure, ordered under sub-section 1 of section
17. In my view such application for seeking inspection, interrogation filed by the
petitioner does not fall under Section 17 of the Arbitration and Conciliation Act,
1996.
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4. On plain reading of section 37(2) of the Act, it is clear that appeal is maintainable from the order of Arbitral Tribunal accepting the plea referred to subsection 2 or sub-section 3 of Section 16 or granting or refusing to grant any interim
measures under Section 17.
In my view, since the order passed by the learned
arbitrator does not fall either under Section (2) (a) or (b), the present appeal is thus not maintainable.
Appeal is maintainable against no other orders of the Arbitral
Tribunal other than what is provided for in sub-section (2) of Section 37.
5. I am, thus, inclined to accept the preliminary objection raised by the learned
counsel appearing for the respondent. I am of the view that appeal is not
maintainable and is therefore rejected.
6. There shall be no order as to costs.
[R.D. DHANUKA, J.]
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