Heard the learned counsel for petitioner and the learned Senior Counsel appearing for respondent Nos.3 and 4 on the application filed by respondent Nos.3 and 4 for vacating the interim order. Since I find that these writ petitions can be disposed of on merits, the same are taken up for final disposal.
2. The petitioner is plaintiff in the suit, O.S. No.2/2019. He filed the suit seeking declarations that the Singapore International Arbitration Centre has no jurisdiction/authority in the matter of nominating/appointing the sole arbitrator in terms of Clause 18.2 of the Management Agreement dated 26.11.2009 between the plaintiff and defendant Nos.3 and 4 and that the nomination/appointment of defendant No.2 made by defendant No.1 in terms of the letter dated 17.12.2018 and all actions/deeds by the defendants pursuant to such nomination/appointment are null and void and non est in law, and for permanent injunction.
3. In the suit, the plaintiff filed an application
I.A .No.1/2019 under Order 39 Rules 1 and 2 of CPC, seeking an exparte order of temporary injunction. The trial Court did not find extreme urgency to grant exparte temporary injunction by dispensing with notice to the defendants and therefore, ordered for issuance of emergent notice.
4. The argument of the petitioners counsel is that the trial Court without noticing the urgency involved in this case, ordered for issuance of emergent notice to the respondents. Respondent No.2 has been appointed as an Arbitrator by respondent No.1, which according to the petitioner is not a neutral authority. In the event of Arbitrator proceeding to adjudicate the dispute, it will result in great injustice to the petitioner. There is a defect in appointing an Arbitrator. The Vice President of respondent No.1 has no authority to nominate an Arbitrator. Therefore, respondent No.1 lacks inherent jurisdiction to act as an Arbitrator. In these circumstances, suit has been filed. In view of this factual position, the trial Court should have granted ad- interim order of injunction. He also submitted that under Article 227 of the Constitution of India, this Court has got plenary power to entertain writ petition and grant order of temporary injunction.
5. The learned Senior Counsel appearing for respondents argue that the appointment of Arbitrator is according to clause 1.3 of the SIAC Rules. President includes Vice President. Therefore, appointment of Arbitrator is according to agreement. If the Arbitrator has no jurisdiction, his jurisdiction can be questioned before him and a suit is not maintainable in this regard. They refer to Section 16 of the Arbitration and Conciliation Act (hereinafter referred to as the Act for short) which enables the Arbitral Tribunal to rule on its own jurisdiction. They also refer to Section 5 of the Act and argue that judicial intervention is permitted only in those matters which are permitted in the Part-I. That means wherever Section 16 of the Act can be invoked, there cannot be intervention by the Civil Court. That apart they also submitted that the petitioner obtained an interim order from this Court by misrepresenting that the Arbitrator has fixed the date 11.01.2019 for hearing. This is a wrong submission. They refer to Annexure-R29 to argue that no date was fixed by the Arbitrator. Therefore, they argue for dismissal of writ petitions.
6. After hearing the arguments, firstly with respect to preferring the writ petitions for not granting exparte order of temporary injunction, it has to be stated that though the High Court has got plenary power under Article 227 of the Constitution of India, such a jurisdiction must be exercised very rarely, only in extraordinary cases. Order 39 of the Code of Civil Procedure envisages a procedure to be followed for granting temporary injunction. If the Civil Court refuses to grant ad-interim order of temporary injunction and orders notice under Order 39 Rule 3 of the Code of Civil Procedure, it should not be understood that injunction order will never be granted at all. All that the Court has stated is that the defendants should also be heard before deciding the application. The High Court, in my opinion, should not encourage procedural bye pass where there is no extreme urgency.
7. As regards the contentions put forward by the parties, it is found from the Rules referred to by the learned counsel for respondents that President means and includes Vice President also. If Arbitrator has been appointed by the Vice President, no infirmity can be seen in it. This is the opinion that can be expressed apparently. If according to petitioner, still there is defect in the nomination of the Arbitrator, Section 16 of the Act provides that the Arbitrator can himself rule about his jurisdiction. The petitioner has to patiently wait till the Arbitrator decides that issue. It also appears that the petitioner obtained an interim order from this Court by misrepresenting that the Arbitrator has fixed the date 11.01.2019 for hearing, but Annexure-R29 does not disclose the same. The trial Courts decision to hear the defendants also before deciding the application for temporary injunction is therefore, justifiable in these circumstances. These writ petitions are devoid of merits. Petitions are dismissed. Sd/- JUDGE MBM/-