At, High Court of for the State of Telangana
By, THE HONOURABLE MR. JUSTICE M.S. RAMACHANDRA RAO & THE HONOURABLE MR. JUSTICE K. LAKSHMAN
For the Petitioner: M. Vanajakshi, Advocate. For the Respondent: ------
M.S. Ramachandra Rao, J.
1. This Revision is filed under Article 227 of the Constitution of India challenging the returned Docket Order dt.09.05.2020 passed by the XV Additional District Judge, Kukatpally in Arbitration O.P. (SR) No.3676 of 2020.
2. The petitioner presented the said OP before the said Court invoking Section 9 of the Arbitration and Conciliation Act, 1996 (for short “the Act”) impleading the respondent herein as the sole respondent.
3. Petitioner contended that there is an Arbitration clause i.e., clause 13.2 in the Agreement dt.27.04.2016 executed between itself and the respondent; that Arbitration Application No.39 of 2019 was filed under Sec.11 of the Act before this Court alleging that the respondent did not appoint sole Arbitrator in spite of being asked to do so in a letter dt.06.05.2019; that this Court referred the matter for mediation to the Mediation Centre; that the respondent is preventing the petitioner from conducting online classes to students in accordance with Agreement dt.27.04.2016; and interim injunction be granted restraining the respondent from terminating the Agreement for Support Services dt.27.04.2016 which expires on 26.04.2020, and for other reliefs.
4. On 9th May, 2020, the XV Additional District Judge, Kukatpally sent an e-mail to the petitioner’s counsel as under:
“Perused. To state how the op is maintainable as the same subject matter is pending before the Mediation Centre on the directions of the HONBLE HIGH COURT and also as arbitration op on the same subject matter in AOP number 39 of 2019 is already pending before our HONBLE HIGH COURT. Hence returned.”
5. Assailing the same, this Revision is filed.
6. Counsel for petitioner contended that the Court below could not reject the Application filed under Section 9 of the Act even before numbering it; that the finding of the said Court that such Application is not maintainable on account of ongoing pending mediation between the parties is contrary to law; that the petitioner is entitled to seek interim measure of protection under Section 9 of the Act before commencement of arbitration proceedings; and that prima facie, loss would be caused to the petitioner if the Application is not entertained and decided.
7. We find considerable force in the submission of the petitioner.
8. There is no provision in the Arbitration and Conciliation Act, 1996 making pendency of mediation before the High Court Mediation Centre or any other Authority an embargo for entertaining the Application under Section 9 of the Act.
9. Therefore, the XV Additional District Judge, Kukatpally is not correct in stating that the OP is not maintainable on account of such pendency of mediation proceedings before the Mediation Centre.
10. The further observation of the Court below that because Arbitration OP on the same subject matter AOP No.39 of 2019 is also pending before this Court and therefore, the OP under Section 9 of the Act is not maintainable, is equally erroneous because AOP No.39 of 2019 is filed seeking appointment of an Arbitrator under Section 11 of the Act and the said petition is an independent petition and would not bar filing of another Application under Section 9 of the Act before the Court below.
11. Accordingly, the e-mail order dt.09.05.2020 passed by the XV Additional District Judge, Kukatpally holding that Arbitration O.P. (SR) No.3676 of 2020 is not maintainable, is set aside; and the said Court is directed to number the O.P. forthwith if it is otherwise in order; consider grant of interim relief to the petitioner even ex parte if the cir
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cumstances so warrant; and decide the same in accordance with law after issuing notice to the respondent and hearing it. We make it clear that we have not expressed any opinion on merits of the claim of the petitioner. 12. The Civil Revision Petition is allowed as above at the admission stage. 13. Pending miscellaneous petitions, if any, in this Revision shall stand closed. No costs.