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The Court cannot allow a Petition under Section 9 of the Arbitration and Conciliation Act of 1996, when the remedy of arbitration is already provided in the agreement between the parties: High Court of Jammu &Kashmir and Ladakh

Merely because it is easier to obtain interim relief from a Court rather than from an arbitrator or arbitral tribunal, the Court cannot allow the Appellant to invoke the jurisdiction of the Court by filing Petition under Section 9 of the Act of 1996, instead of availing the remedy of arbitration as provided in the agreement between the parties as held by the J and K High court in the case of Adil Ashraf Bolaki Vs JK Power Transmission Corporation Limited & Ors through a learned bench of Justice Ali Mohammad Magrey and Justice Sanjeev Kumar.

Brief material facts of the case are that the appellant claims to have been accorded contract for installation of 132 KV Cable laying job for the Jammu and Kashmir Power Transmission Corporation Limited, where after he started execution of work strictly in terms of said letter and terms and conditions of the contract and that the same is being carried out by him without any failure on his part. During the course of work, appellant was orally directed to install extra cables required for the completion of job. It is claimed by the Appellant that the Respondents assured the Appellant that work contract would be amended and he would be paid for extra work and expenses incurred and increase would be added in final bill strictly in lieu of rate fixed. But later, respondents failed to reply.

The Appellant filed a petition under Section 9 of the Arbitration and Conciliation Act before the learned Single Judge. The learned Single Judge, vide the impugned Judgment dated 1st of September, 2021, has dismissed the said Petition filed by the Appellant.

Mr Aatir Javed Kawoosa, the learned Counsel representing the Appellant, submitted that the Petition of the Appellant filed under Section 9 of the Act of 1996 has been dismissed by the learned Single Judge without appreciating the contentions raised by the Appellant supported by the scheme of law and the judgments passed by the Supreme Court. Mr Jahangir Iqbal Ganai, the learned Senior Counsel, representing the Respondents 2 and 3, submitted that the Judgment passed by the learned Single Judge has been passed in tune with the mandate of law and does not call for any interference from this Court. It is submitted that the Petition filed by the Appellant before the learned Single Judge was a gross abuse of process of law, besides same was filed on misrepresentation and suppression of facts

After hearing both the parties, the hon’ble High Court was of the view that “The learned Single Judge has dismissed the Petition filed by the Appellant under Section 9 of the Act of 1996 seeking grant of interim relief by holding that it cannot usurp the jurisdiction of the arbitral Tribunal even at a pre-arbitration stage. This finding of the learned Single Judge cannot be said to be erroneous when there is a clear arbitration clause provided in the agreement between the parties. Merely because it is easier to obtain interim relief from a Court rather than from an arbitrator or arbitral tribunal, the Court cannot allow the Appellant to invoke the jurisdiction of the Court by filing Petition under Section 9 of the Act of 1996, instead of availing the remedy of arbitration as provided in the agreement between the parties.”

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Judgment Reviewed by – Aryan Bajaj

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