Harsha Devani, J.:— This appeal under section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) is directed against the order dated 29.11.2014 passed by the learned 11th Additional District Judge, Vadodara below Exhibit-5 in Civil Miscellaneous Application (Arbitration) No. 486 of 2014 whereby the application has been allowed and the appellants (original respondents) have been ordered and directed to restore the connection of gas supply to the respondent herein within 24 hours.
2. The facts giving rise to the present appeal are that the appellants herein had issued a notice dated 21.1.2014 for disconnection of gas to the respondent - buyer company. Pursuant thereto, the respondent filed an application under section 9 of the Act, being Arbitration Application (CMA) No. 31 of 2014. In the said application, vide orders dated 28.1.2014 and 29.1.2014, the learned Second Additional District Judge, Vadodara issued a direction restraining the appellants from taking any action of stoppage of gas supply and termination and cancellation of Gas and Sales Transmission Agreement till the final disposal of the arbitration proceedings. The above-referred order passed by the learned Second Additional District Judge, Vadodara came to be challenged by the appellants before this court in First Appeal No. 431 of 2014. This court by an order dated 20.1.2014 rejected the request for grant of interim relief sought for by the appellants and directed the respondent - buyer not to sell or pass gas to any third party. Subsequently, the arbitration proceedings proceeded before the learned Arbitrator at New Delhi which culminated into an award dated 30.10.2014 whereby the claim of the respondent was dismissed with the observation that the award shall not preclude the parties from entering into a fresh agreement for supply of APM gas on such renewed terms as may be mutually agreed upon by and between the parties. Pursuant to the said award, the appellants issued a disconnection notice dated 7.11.2014 and eventually disconnected the gas supply on 12.11.2014 The appellants also withdrew the first appeal preferred by them before this court on the ground that it had become infructuous due to the passing of the final award by the Arbitrator in favour of the appellants. Subsequent thereto, the respondent herein moved an application for interim relief for protection and restoration/re-connection of gas supply pending Arbitration Application No. 486 of 2014. By the impugned order, the learned Additional District Judge has allowed the application and has directed the appellants herein to restore the gas supply to the respondent within 24 hours, which has given rise to the present appeal.
3. Mr. Vishwas Shah, learned advocate for the appellants assailed the impugned order by submitting that under section 9 of the Act, a party can apply to a court for seeking interim measures as contemplated therein. Inviting the attention of the court to clause (e) of section 2 of the Act, it was submitted that the expression “Court” has been defined therein to mean the Principal Civil Court of original jurisdiction in a district and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been subject-matter of a suit, but does not include any civil court of a grade inferior to such Principal Civil Court, or any Court of Small Causes.
3.1 According to the learned counsel, the expression ‘court’ in section 9 of the Act would mean a “court” defined in clause (e) of section 2 of the Act which means the Principal Civil Court of original jurisdiction. It was submitted that the Principal Civil Court of original jurisdiction in the District is the Principal District Judge and hence, the learned Additional District Judge had no jurisdiction to entertain the application. It was submitted that power under section 9 of the Act having been expressly conferred on the District Judge, he does not have any power to delegate those functions to any Additional District Judge. Reliance was placed upon the decision of the Allahabad High Court in the case of I.T.I Ltd., Allahabad v. District Judge, Allahabad, AIR 1998 Allahabad 313, wherein the court had held that in view of the term “Court” as elucidated in section 2(e) and the overriding effect of section 42 of the Act, the Court of the Additional District Judge is shorn of jurisdiction to entertain an application under section 34 of the Act and the District Judge cannot, by invoking the provisions contained in section 8(2) of the Bengal, Agra and Assam Civil Courts Act, 1887, transfer the application for its disposal to the Court of an Additional District Judge. It was submitted that in the light of the view adopted by the Allahabad High Court in the above-referred decision, it is only the District Judge who has the jurisdiction to entertain an application under section 9 of the Act and the learned Additional District Judge, therefore, had no jurisdiction to entertain the same.
3.2 Reliance was also placed upon the decision of the Bombay High Court in the case of Dirk India Pvt. Ltd. v. Maharashtra State Electricity Generation Company Limited rendered on 18 and 19 March, 2013 in Appeal No. 114 of 2013 and cognate matters wherein the court had held that contextually, the scheme of section 9 postulates an application for the grant of an interim measure of protection after the making of an arbitral award and before it is enforced for the benefit of the party which seeks enforcement of the award. An interim measure of protection within the meaning of section 9(ii) is intended to protect through the measure, the fruits of a successful conclusion of the arbitral proceedings. A party whose claim has been rejected in the course of the arbitral proceedings cannot obviously have an arbitral award enforced in accordance with section 36. The object and purpose of an interim measure after the passing of the arbitral award but before it is enforced is to secure the property, goods or amount for the benefit of the party which seeks enforcement. It was, accordingly, urged that section 9 having been enacted for the benefit of the party which seeks enforcement of the award, the party who has failed in the arbitral proceedings is not entitled to any relief thereunder.
3.3 It was also contended that the venue of the arbitration was at Delhi and hence, the Court of learned Additional District Judge at Vadodara had no jurisdiction to entertain the application.
3.4 Next it was contended that the moment the award came to be declared, the arbitral proceedings came to an end and hence, the appellants were justified in acting upon the said award.
3.5 Referring to the impugned order, it was pointed out that no independent findings have been recorded by the learned Judge on the merits of the application and that the learned Judge has only placed reliance upon the previous order passed by the court on the application under section 9 of the Act made on the previous occasion. It was emphatically argued that the learned Judge has not examined the merits of the award and has not found anything prima-facie wrong with the award passed by the Arbitrator, except for saying that the act of the appellants herein to disconnect the gas supply is prima-facie not legal and valid and the applicant (respondent herein) is prima-facie entitled to the grant of an interim mandatory order for restoration of such gas supply. It was submitted that except referring to the previous order, the learned Judge has not discussed the merits of the case and therefore, the impugned order also suffers from the vice of non-application of mind to the relevant factors and cannot be sustained.
3.6 It was also submitted that before the application under section 9 of the Act came to be filed, the gas connection had already been disconnected and hence, no sufficient cause has been made out for the grant of mandatory relief as directed by the learned Additional District Judge. It was, accordingly, urged that the impugned order being contrary to the provisions of law and without jurisdiction, deserves to be quashed and set aside.
4. Vehemently opposing the appeal, Mr. Indravadan Parmar, learned advocate appearing on caveat on behalf of the respondent, submitted that the venue of arbitration does not decide the jurisdiction of the court. The attention of the court was invited to clause (e) of section 2 of the Act to point out that the expression “Court” means the court having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit. It was submitted that if the subject-matter of the present case was the subject-matter of a suit, the suit would lie before the court at Vadodara and hence, the contention that the venue of arbitration being Delhi, the court at Vadodara had no jurisdiction, does not merit acceptance.
4.1 Insofar as the contention that it was only the learned Principal District Judge who had the jurisdiction to decide the application, the learned counsel invited the attention of the court to section 12 of the Gujarat Civil Courts Act, 2005 to point out that a Court of District Judge shall be the Principal Civil Court of original jurisdiction within the local limits of its jurisdiction. Reference was made to sub-section (2) of section 4 read with clause (ii) of sub-section (3) thereof to submit that the Additional District Judge appointed under clause (ii) of subsection (3) of section 4 is empowered to discharge all or any of the functions of a District Judge under the Act and is empowered to exercise all the powers of the Court of a District Judge and hence, the court of the learned Additional District Judge is also a Principal Civil Court of original jurisdiction.
4.2 In support of his submission, the learned counsel placed reliance upon the decision of this court in the case of Nareshchandra Ramprasad Raja v. Gajendra Shukhlal Patel, 2008 (1) G.L.H 305, wherein the only question that had arisen for consideration was, whether the Fast Track Court which is a Court of Additional District Judge has power to entertain and decide the application under Bombay Public Trusts Act made to the Court of Principal District Judge or not. The court had expressed the view that in view of the express provisions of section 2(e)(ii) of the Gujarat Civil Courts Act, the Court of Additional District Judge is competent to exercise all or any of the functions of a District Judge under any other law for the time being in force and is competent to exercise all powers of the court of District Judge in a matter which is assigned to him. That in view of the express provisions of Bombay Civil Court Act read with the provisions of Gujarat Civil Courts Act, the Court of Additional District Judge is competent to exercise all powers of the Court of the District Judge. It was submitted that the above decision would be squarely applicable to the facts of the present case.
4.3 Reference was made to the decision of the Supreme Court in the case of National Aluminium Co. Ltd. v. Pressteel & Fabrications (P) Ltd. (2004) 1 SCC 540, wherein the Court had come to the conclusion that in view of the provisions of section 34 read with section 2(e) of the 1996 Act, it is not the Supreme Court which has the jurisdiction to entertain an application for modification of the award and it could only be the principal civil court of original jurisdiction as contemplated under section 2(e) of the Act which had the jurisdiction to entertain such an application.
4.4 It was contended that prior to the institution of the arbitral proceedings, the respondent had moved an application under section 9 of the Act before the learned Additional District Judge who by an order dated 28.1.2014 had restrained the respondents therein, namely, the appellants herein from taking any action of stoppage of gas supply and termination and cancellation of GSTA till final disposal of the arbitral proceedings. It was submitted that the arbitral proceedings can be said to continue till the period specified under section 36 of the Act for enforcement of the arbitral award under section 34 has expired. It was submitted that the award having been made on 30.10.2014 and having been communicated vide letter dated 3.11.2014, which was received by the respondent on 5.11.2014, the period specified under section 36 of the Act had not expired and hence, the appellants were not justified in disconnecting the gas supply of the respondent in breach of the said order. The learned Additional District Judge was, therefore, wholly justified in granting mandatory relief on the application filed by the respondent under section 9 of the Act.
4.5 Reliance was also placed upon a decision of a Division Bench this Court in the case of Madhavpura Mercantile Cooperative Bank Ltd. v. Shah Bhimani Chemicals Pvt. Ltd., 2009 (2) Arb. LR 287 (Gujarat), wherein the court had held that only where the time for making application to set aside the arbitral award under section 34 of the Act has expired, or such an application has been rejected, the arbitral award can be enforced. The court had held that where an award of the arbitrator is made enforceable through the court machinery as if it were the decree of the civil court, the legislature has in its wisdom found it appropriate to provide that such an enforcement can be made only after the time for setting aside the arbitral award under section 34 has expired or such application having been made has been refused. This ensures that the person aggrieved by the award of the arbitrator gets reasonable time to approach the court for setting aside the award and if such an application is made, the same is disposed of by the civil court before the award can be enforced. It was submitted that, therefore, till the time provided under section 36 of the Act has expired, the arbitral proceedings would continue and the appellants could not have disconnected the gas connection of the respondent till such time-limit had expired.
4.6 Insofar as the contention that the learned Additional District Judge has not applied his mind to the merits of the impugned award is concerned, the learned advocate for the respondent had invited the attention of the court to the opening part of the impugned order to point out that the learned Judge has clearly recorded that he has read the application, preliminary objection filed by the opponent at Exhibit-10, and the disputed award passed by the arbitrator. It was submitted that, evidently, therefore the learned Judge has after having going through the contents of the impugned award and applying his mind to the same, passed the impugned order.
4.7 In conclusion it was submitted that the impugned order being just, legal, proper and in consonance with the view taken by this court in the above-referred decisions does not merit interference.
5. This court has considered the submissions advanced by the learned advocates for the respective parties and has perused the impugned award as well as the record of the case which has been produced along with the appeal papers.
6. The facts as emerging from the record reveai that prior to the institution of the arbitration proceedings, the respondent had moved an application under section 9 of the Act before the learned Second Additional District Judge at Vadodara being Civil Miscellaneous Application No. 31 of 2014. By an order dated 28.1.2014, the application came to be allowed by directing the respondents (appellants herein) to refrain from taking any action of stoppage of gas supply and termination and cancellation of GSTA till final disposal of the arbitral proceedings. Subsequent thereto, the parties entered into arbitration and the arbitrator rendered his award under section 34 of the Act on 30.10.2014 whereby the claim of the respondent was dismissed with an observation that the award shall not preclude the parties from entering into a fresh agreement for supply of APM gas on such renewed terms as may be mutually agreed between the parties. Such award was sent to the parties by letter dated 3.11.2014 and was received by the respondent on 5.11.2014 On 7.11.2014, the appellants issued a disconnection notice to the respondent and eventually, disconnected the gas supply on 12.11.2014 Faced with a situation whereby its gas supply was disconnected, the respondent moved an application under section 9 of the Act before the learned 11 Additional District Judge, Vadodara being Civil Miscellaneous Application (Arbitration) No. 486 of 2014, which came to be allowed with a mandatory direction to the appellants herein to restore the connection of gas supply to the opponents within 24 hours.
7. Since the very jurisdiction of the learned Additional District Judge to entertain an application under section 9 of the Act has been called in question, the same would be required to be adjudicated upon first in point of time.
8. Section 9 of the Act provides that a party may, before or during arbitral proceedings or any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court in any of the eventualities mentioned therein. Clause (e) thereof reads thus:
“(e) such other interim measure of protection as may appear to the court to be just and convenient,”.
9. The expression “Court” has been defined in clause (e) of section 2 of the Act to mean the Principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such Principal Civil Court, or any Court of Small Causes. The expression “Principal Civil Court of original jurisdiction” is not defined under the Act. Hence, for this purpose reference would be required to be made to the provisions of the Gujarat Civil Courts Act, 2005.
10. Clause (b) of section 2 of the Gujarat Civil Courts Act defines “Civil Court” to mean a Court of a District Judge, a Court of the Senior Civil Judge or a Court of Civil Judge. Section 3 of the said Act bears the heading Classes of Civil Courts and provides that there shall be the following classes of Civil Courts in the State, namely, -
(a) Court of a District Judge;
(b) Court of a Senior Civil Judge;
(c) Court of a Civil Judge.
11. Section 4 of the said Act provides for establishment of Courts of District Judges and reads thus:
“4. Establishment of Courts of District Judges:
(1) There shall be established by the State Government in consultation with the High Court, by notification, in each district, a Court of a District Judge.
(2) Each Court of a District Judge shall be presided over by a Judge to be called the Principal District Judge.
(3)(i) When the business pending before a Court of a District Judge so requires, the State Government may, in consultation with the High Court, appoint to that Court one or more Judges to be called as Additional District Judges, for such period as it deems necessary.
(ii) The Additional District Judge appointed under this sub-section shall, subject to the general or special orders of the High Court, discharge all or any of the functions of a District Judge under this Act or any other law for the time being in force which the Principal District Judge may assign to him and in the discharge of those functions, he shall exercise all the powers of the Court of a District Judge.”
12. Thus, by virtue of sub-section (1) of section 4 of the Gujarat Civil Courts Act, a Court of a District Judge is required to be established in each district. Sub-clause (i) of sub-section (3) of section 4 of the said Act provides that when the business pending before a Court of a District Judge so requires, the State Government may, in consultation with the High Court, appoint to that court one or more Judges to be called as Additional District Judges, for such period as it deems necessary. Sub-clause (ii) of sub-section (3) of section 4 of the said Act provides that the Additional District Judge appointed under this sub-section shall, subject to the general or special orders of the High Court, discharge all or any of the functions of a District Judge under the Act or any other law for the time being in force which the Principal District Judge may assign to him and in the discharge of those functions, he shall exercise all the powers of the Court of a District Judge.
13. From the language employed in clause (ii) of sub-section (3) of section 4 of the Gujarat Civil Courts Act, it is clear that an Additional District Judge appointed under sub-section (3) of section 4 thereof is empowered to exercise all powers of the Court of a District Judge.
14. Section 12 of the Gujarat Civil Courts Act provides for the jurisdiction of a Court of a District Judge and provides that a Court of District Judge shall be Principal Civil Court of original jurisdiction within the local limits of its jurisdiction. Thus, the court of a District Judge shall be the Principal Civil Court of original jurisdiction within the local limits of the jurisdiction of the District Judge. From the classes of courts, as enumerated in section 3 of the Act, it is apparent that one of the categories is the Court of a District Judge. The statute does not make any distinction between the Court of an Additional District Judge and a District Judge and both the courts are commonly known as the Court of a District Judge. Therefore, be it a court of a District Judge or the court of an Additional District Judge, the same would still be the Principal Civil Court of original jurisdiction in the District. The distinction sought to be drawn by the learned advocate for the appellants to the effect that the Principal Civil court of original jurisdiction in the district would mean only the Court of the Principal District Judge, therefore, does not appear to be in consonance with the provisions of the Act.
15. This court in the case of Nareshchandra Ramprasad Raja v. Gajendra Shukhlal Patel (supra), has while interpreting the provisions of section 12 of the Act read with section 4(3)(ii) of the Gujarat Civil Courts Act, held that the Court of the Additional District Judge is competent to exercise the powers of the Court of a District Judge. The said decision would be squarely applicable to the facts of the present case and hence, the contention that the Additional District Judge has no jurisdiction to entertain an application under section 9 of the Act deserves to be stated only to be rejected.
16. Insofar as the decision of the Allahabad High Court in the case of I.T.I Ltd., Allahabad v. District Judge, Allahabad, (supra) on which reliance has been placed by the learned counsel for the appellant wherein it has been held that the Court of Additional District Judge is shorn of jurisdiction to entertain an application under section 34 of the Act is concerned, for the reasons stated hereinabove this court is respectfully not in agreement with the view adopted by the said court.
17. Insofar as the contention that the venue of arbitration being at Delhi, the court at Vadodara had no jurisdiction to entertain the application under section 9 of the Act is concerned, clause (e) of section 2 of the Act is clear and unambiguous and provides that the Court would mean the Principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit. Adverting to the facts of the present case, undisputedly, if the subject-matter of arbitration formed the subject-matter of a suit, such suit would be required to be instituted at Vadodara and not at Delhi. Under the circumstances, this contention also deserves to be rejected.
18. Adverting to the merits of the impugned order, on behalf of the appellants it has been vehemently contended that the learned Additional District Judge has without reference to the merits of the case merely by reference to the previous order passed under section 9 of the Act, granted mandatory interim relief without finding any prima-facie error in the impugned award. In this regard, it may be noted that an application under section 9 of the Act is filed for an interim measure before or during arbitral proceedings or any time after the making of the arbitral award but before it is enforced in accordance with section 36 of the Act. Such application is not in the nature of an appeal against an award so as to require the court to go into the merits of the award before considering the question of grant of any relief under section 9 of the Act. In such proceedings, the court would look to the facts of the case and the attendant circumstances, for the purpose of forming an opinion as to whether sufficient case has been made out for grant of any relief in exercise of powers under section 9 of the Act. The very fact that section 9 of the Act can be invoked even before arbitral proceedings makes it abundantly clear that the merits of the award need not be gone into while deciding such application. Besides, as rightly pointed out by the learned counsel for the respondent, the learned Judge has recorded that he has gone through the application under section 9 of the Act, the objections thereto as well as the award. Therefore, it cannot be said that the learned Judge has not applied his mind to the merits of the award merely because he has not discussed it merits in the impugned order.
19. According to the learned advocate for the appellants, the arbitral award having already been enforced by disconnection of the gas supply, the application under section 9 of the Act ought not to have been entertained. In the opinion of this court, what section 9 means is that a party may at any time before or after the making of the arbitral award but before it is enforced in accordance with section 36 apply to the court for interim measure provided thereunder. Section 36 of the Act provides for enforcement of an award and says that where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court. In the light of the provisions of section 36 of the Act, an arbitral award ought not to be enforced till the time for making an application to set aside the arbitral award under section 34 has expired. In the present case, the appellants without waiting for the statutory period provided under section 36 of the Act have suo motu enforced the award by disconnecting the gas supply, contrary to the provisions of section 36 of the Act. In the opinion of this court, if such a course of action is permitted, the intention behind enacting section 36 of the Act would be frustrated, inasmuch as, merely with a view to thwart an application under section 9 of the Act, a party in whose favour the award has been made, could, like in the present case, without resorting to the provisions of the Code of Civil Procedure, enforce the award.
20. At this juncture, it may be apposite to refer to the decision of a Division Bench of this court in the case of Madhavpura Mercantile Cooperative Bank Ltd. v. Shah Bhimani Chemicals Pvt. Ltd. (supra) wherein the constitutional validity of section 36 of the Act had been called in question. The court held thus:
“7. The language of Section 36 of the Act is clear and it specifically deals with enforcement of arbitration award. Section 34 deals with application for setting aside the arbitration award. Only where the time for making application to set aside the arbitral award under Section 34 of the Act has expired, or such an application has been rejected, the arbitral award can be enforced. True, arbitration award can be enforced under the Code of Civil Procedure in the same manner as if it was a decree of the Court. Under Section 151 of the Code of Civil Procedure, the Civil Court has got inherent power to make such orders as may be necessary to prevent the abuse of the process of Court. But the Court while exercising power under Section 151 of the Code, first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code of Civil Procedure and if there is no such prohibition, then the Court will consider whether such power should be exercised or not on the basis of facts mentioned in the application. In view of Section 36 of the Act placing an embargo on executing the arbitration award, the Civil Court cannot exercise powers under Section 151 of the Civil Procedure Code by issuing interim orders.
8. Section 35 of the Arbitration and Conciliation Act, 1996 provides that subject to Part I of the Act, an arbitral award shall be final and binding on the parties and persons claiming under them. Section 36 of the Act makes an arbitral award enforceable under the Code of Civil Procedure in the same manner as if it were a decree of the Court once either the time for making an application to set aside the arbitral award under Section 34 has expired or such application having been made, it has to been refused. Section 34, in turn, provides for certain grounds only on which an arbitral award can be set aside by the Court. Thus, when an award of the Arbitrator is made enforceable through the Court machinery as if it were the decree of the Civil Court, the Legislature has in its wisdom found it appropriate to provide that such an enforcement can be made only after the time for setting aside the arbitral award under Section 34 has expired or such application having been made has been refused. This ensures that the person aggrieved by the award of the Arbitrator gets reasonable time to approach the Court for setting aside the award and if such an application is made, the same is disposed of by the Civil Court before the award can be enforced. Learned advocate for the petitioner has not been able to point out any unconstitutionality in the provision contained in Section 36. The provision is not shown to be outside the legislative competence of the Parliament or opposed to any of the constitutional provisions. The challenge to the constitutional validity of Section 36 of the Act, therefore, must be repelled.”
21. Thus, the Division Bench, in the above-referred decision, has held that when an award of the Arbitrator is made enforceable through the Court machinery as if it were the decree of the Civil Court, the Legislature has in its wisdom found it appropriate to provide that such an enforcement can be made only after the time for setting aside the arbitral award under section 34 has expired or such application having been made has been refused. This ensures that the person aggrieved by the award of the Arbitrator gets reasonable time to approach the court for setting aside the award and if such an application is made, the same is disposed of by the civil court before the award can be enforced.
22. In the present case, the appellants by disconnecting the gas supply of the respondent, have sought to defeat the very intent of the Legislature in making the provision of section 36 of the Act whereby the arbitral award is enforceable only after the time limit for setting aside the arbitral award under section 34 has expired or such application has been made and it has been refused.
23. This court, respectfully, does not agree with the view adopted by the Bombay High Court in the case of Dirk India Pvt. Ltd. v. Maharashtra State Electricity Generation Company Limited (supra) that the object and purpose of an interim measure after the passing of the arbitral award but before it is enforced is to secure the property, goods or amount for the benefit of the party which seeks enforcement. In the opinion of this court, section 9 of the Act does not draw any distinction between the party who has succeeded in the arbitral proceedings and a party who has failed therein. Under the circumstances, either party would be entitled to approach the court seeking an interim measure under section 9 of the Act. The contention that the respondent could not have availed of the benefit under section 9 of the Act as the award already stood enforced, therefore, does not merit acceptance.
24. As noted hereinabove, in the light of the view taken by a Division Bench of this court in the case of Madhavpura Mercantile Cooperative Bank Ltd. v. Shah Bhimani Chemicals Pvt. Ltd. (supra), that the arbitral award can be enforced only after the time of setting aside the arbitral award under section 34 has expired or such application having been made has been refused, it was not permissible for the appellants to enforce the award without waiting for such period to expire. As noted hereinabove, the action of the appellants in disconnect the gas supply of the respondent, without waiting for the statutory time-limit to expire, defeats the very intent of the Legislature to provide protection to the parties during the said time as provided under section 36 of the Act. The above act of the respondent is, therefore, on the face of it arbitrary, capricious and highhanded and contrary to the legislative intent, which renders such action unsustainable. Hence, the appellants were liable to restore the status quo ante. The court below was, therefore, wholly justified in granting the mandatory interim relief as prayed for by the respondent.
25. For the foregoing reasons, this court does not find any merit in the appeal. The appeal, therefore, fails and is accordingly dismissed.
26. At this stage, Mr. Vishwas Shah, learned advocate for the appellants has requested that the order passed by the learned Additional District Judge staying the impugned order for the purpose of enabling the learned advocate to approach this court be further extended for a reasonable period so as to enable the appellants to approach the higher forum.
27. The request is duly considered. However, having regard to the facts and circumstances of the present case, the request is turned down.
28. In the light of the above order, the civil application for stay does not survive and is disposed of accordingly.
29. Direct service of this order on appellant No. 2 is permitted.