"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Friday, August 28, 2015

Whether a Section 9 Petition Can be Disposed of Ex Parte: Full Bench of Hyderabad HC

In a recent judgement in East India Udyog Ltd. v. Maytas Infra Ltd., a Full Bench of the Hyderabad High Court had to decide whether a court hearing a petition under Section 9 of the Arbitration and Conciliation Act, 1996 could dispose of the same ex parte. The entire list of questions that was referred to the Full Bench is quoted below:

"a) Whether the Court as defined under Section 2 (e) of the Act, is entitled to dispose of the application filed under Section 9 of the Act before initiation of the arbitral proceedings under section 21 of the Act, ex- parte without giving notice to the respondents, if the facts and circumstances so warrant?
b) Whether the Court as defined under Section 2 (e) of the Act, is entitled to grant any interim order pending disposal of the interim measure application under Section 9 of the Act?
c) Whether further application pending disposal of the interim measure under Section 9 of the Act, is maintainable?
"
 
Answering the above questions, the court held that a petition under Section 9 cannot be disposed of ex parte but the court could issue an ad interim ex parte order pending the proceedings under Section 9. In holding so, the court affirmed the already settled law that the powers of the court under Section 9 are akin to that of a court hearing applications for interim orders under the Code of Civil Procedure (for a more nuanced implication of this aspects, see paras 16 to 16.3 of the aforesaid decision.
 
The Full Bench of the Hyderabad HC answered the reference in the following manner:

"The Court as defined under Section 2(e) of the Act, is undoubtedly entitled to dispose of the application filed under Section 9 of the Act even before initiation of the arbitral proceedings under Section 21 of the Act. The Court, however, cannot dispose of such application ex parte without giving notice to the respondents, but Court can pass ex parte ad interim order pending the application filed under Section 9 of the Act."

2 comments:

Anshu Ranjan said...

But the proceeding under section 09 of the ACT of 1996 is the judicial proceeding and it will be governed under the ORDER XXXIX to the CPC of 1908 read with the provision contained under the ORDER IX - "APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE" to the CPC 1908 accordingly apply which permits the court to dispose of the petition accordingly. So, in my opinion, the court can be disposed of EX parte petition.

Badrinath Srinivasan said...

Mr. Ranjan, thanks for your comments. It may be noted that even under Order 39, the court CANNOT dispose of the petition FINALLY without hearing the other side although it can do so IN THE INTERIM pending disposal. Would be great if you could share with us an authority on the point mentioned. Regards.