I.D.A. Malappuram Branch (Through Its Executive Committee) v. Indian Dental Association Kerala State Branch and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 3[RD] DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944 ``` ## **`OP(C) NO. 2141 OF 2022`** ## **`OPARB 582/2022 OF ADDITIONAL DISTRICT COURT - III, MANJERI`** ## **`PETITIONER/PETITIONER:`** ``` I.D.A. MALAPPURAM BRANCH THROUGH ITS EXECUTIVE COMMITTEE, REPRESENTED BY ITS HON. SECRETARY DR. RAGESH GANGADHARAN, MALABAR DENTAL CLINIC, MANALIMMAL BUS STAND, PANDIKKAD ROAD, WANDOOR, MALAPPURAM DISTRICT, PIN - 679328 ``` ``` BY ADVS. ALEX.M.SCARIA G.SREEKUMAR (CHELUR) BEAS K. PONNAPPAN A.J.RIYAS SARITHA THOMAS ALEN J. CHERUVIL SAHL ABDUL KADER SANJITH KUMAR R. ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 THE INDIAN DENTAL ASSOCIATION KERALA STATE BRANCH, REPRESENTED BY ITS HON. SECRETARY, DR. DEEBU J. MATHEW (OFFICE@IDAKERALA.IN) MARIAM DENTAL CARE, KUTTIPPURAM ROAD, VALANCHERY, MALAPPURAM, PIN - 676552` - `2 THE CENTRAL COUNCIL OF INDIAN DENTAL ASSOCIATION MUMBAI, REPRESENTED BY ITS HON. SECRETARY GENERAL, DR. ASHOK DHOBLE (HO@IDA.ORG.IN), BLOCK NO. 6, SANE GURUJI PREMISES, 386-VEERSAVARKKAR MARG, PRABHADEVI, MUMBAI, MAHARASHTRA INDIA, PIN - 400025` - `3 THE INDIAN DENTAL ASSOCIATION REPRESENTED BY ITS HON. SECRETARY GENERAL, DR. ASHOK DHOBLE (HO@IDA.ORG.IN) BLOCK NO. 6, SANE GURUJI PREMISES, 386-VEERSAVARKKAR MARG, PRABHADEVI, MUMBAI, MAHARASHTRA INDIA, PIN - 400025` - `4 DR.DEEBU J. MATHEW HON. SECRETARY, INDIAN DENTAL ASSOCIATION, KERALA STATE` ``` OP(C) NO. 2141 OF 2022 2 ``` ``` BRANCH (OFFICE@IDAKERALA.IN),MARIAM DENTAL CARE, KUTTIPPURAM ROAD, VALANCHERY, MALAPPURAM, PIN - 676552 ``` ``` 5DR. ASHOK DHOBLE (HO@IDA.ORG.IN), BLOCK NO. 6, SANE GURUJI PREMISES, 386-VEER SAVARKKAR MARG, PRABHADEVI, MUMBAI, MAHARASHTRA INDIA, PIN - 400025 ``` ``` 6DR.FAMEESHA P. PROPOSER FOR TIRUR BRANCH OF INDIAN DENTAL ASSOCIATION, PKH MEMORIAL HOSPITAL, B P. ANGADI, TIRUR, MALAPPURAM, (DRFAMEESHA76@GMAIL.COM) , PIN – 676101 ``` ## BY ADV. SRI. SHYAM PADMAN ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON ``` - `03.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:` ``` OP(C) NO. 2141 OF 2022 3 ``` ## **Dated this the 3[rd] day of November, 2022** ## **JUDGMENT** Aggrieved by Ext.P6 order passed in I.A. No.2/2022 in O.P(Arbitration) No.582/2022 by the Court of the Additional District Judge-III, Manjeri, the petitioner before the court below has filed the original petition. The respondents are the respondents before the court below. 2. The facts leading to Ext.P6 order, in a nut shell, are: the petitioner had filed the original petition under Section 9 of the Arbitration and Conciliation Act, 1996 (in short ‘Act’), seeking interim measures. Along with the original petition, the petitioner had filed I.A. No.2/2022 for an order of ad-interim injunction to restrain the respondents from conducting any inauguration or installation ceremony of Indian Dental Association, Tirur branch till 15.10.2022. The court below passed Ext.P3 ad-interim order of injunction as prayed for. Thereafter, ## **`OP(C) NO. 2141 OF 2022 4`** one of the respondents appeared and filed Ext.P4 counter affidavit. The learned counsel for the petitioner filed Ext.P5 argument notes. The court below, without any valid reason or adverting to Ext.P5 argument notes, vacated Ext.P3 order by the impugned Ext.P6 order. The procedure adopted by the court below is improper, irregular and unsustainable in law. Hence, the original petition. 3. Heard; Sri.G.Sreekumar (Chelur), the learned counsel appearing for the petitioner and Sri.Shyam Padman, the learned counsel appearing for the respondents. 4. The question is whether the procedure adopted by the court below leading to Ext.P6 is correct and justifiable ? 5. Section 9 of the Arbitration and Conciliation Act, 1996, reads as follows:- ## **9** . **Interim measures, etc., by Court.—** **[(1)]A party may, before or during arbitral proceedings or at any time after the making of the** ## **`OP(C) NO. 2141 OF 2022 5`** **arbitral award but before it is enforced in accordance with section 36, apply to a court—** (i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or **(ii) for an interim measure of protection in respect of any of the following matters, namely:— (a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;** (b) securing the amount in dispute in the arbitration; (c) the detention, preservation or inspection of any property or thing which is the subject matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; **(d) interim injunction** or the appointment of a receiver; (e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it. [(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine. (3) Once the arbitral tribunal has been constituted, the ## **`OP(C) NO. 2141 OF 2022 6`** Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious.] 6. A reading of the above provision undoubtedly demonstrates that, the court may, before, during and before the enforcement of the arbitral award, for the purpose of interim measures enumerated in Section 9 of the Act, pass an order of interim injunction. 7. Invoking sub-clause (ii) (d) of Sub Section (1) of Section 9 of the Act, the court below has passed Ext.P3 ad-interim order of injunction, on being satisfied that the petitioner has made out a prima facie case for an adinterim order and the refusal of passing the order would cause irreparable injury to the petitioner. Thereafter, when the respondents appeared and filed Ext.P4 counter affidavit, the court below straight away vacated Ext.P3 order by Ext.P6 order. 8. On an analysis of the holistic scheme and the gestalt working of the Act, I find the course adopted by the court below is incorrect and wrong. I say this because ## **`OP(C) NO. 2141 OF 2022 7`** the present course has left the petitioner high and dry, and remediless. Once, the respondents objected to Ext.P3 order, the court below ought to have decided the original petition and passed orders thereon, which alone is appealable under Section 37 of the Act. 9. As there is an infraction of the scheme of the Act, I hold that the original petition falls within the category of exceptional rarity as laid down in **Bhavan Constructions v. Sardar Sarovar Narmada Nigam Ltd.** [(2022) 1 SCC 75] and **Deep Industries Ltd. v. Oil and Natural Gas Corporation Ltd and another** [(2020) 15 SCC 706]. 10. The course adopted by the court below has definitely prejudiced the petitioner. Hence, I am inclined to interfere in the arbitral process by invoking the power of superintendence of this Court under Article 227 of the Constitution of India. 11. In the above conspectus, I am of the definite view that the court below is to be directed to take a final call ``` OP(C) NO. 2141 OF 2022 8 ``` on O.P.(Arbitration) No.582/2022 itself and pass an order in the original petition rather than on the application for ad-interim injunction. In the result, I allow the original petition in the following manner:- - (i) Ext.P3 and P6 orders are set aside. (ii) The parties are directed to maintain status quo with respect to the inauguration and installation of the Indian Dental Association, Tirur Branch as on 29.09.2022, till orders are passed in the original petition. (iii) The parties are directed to appear before the court below on 14.11.2022. (iv) The court below is directed to consider and dispose of O.P.(Arbitration ) No.582/2022, in accordance with law and as directed above, as expeditiously as possible and at any rate on or before 23.11.2022. **Sd/-** **C.S.DIAS, JUDGE** rmm03/11/2022 ## **`OP(C) NO. 2141 OF 2022 9`** ## **`APPENDIX OF OP(C) 2141/2022`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1` - `TRUE COPY OF THE O.P (ARBITRATION) NO. 582/2022 DATED 29/09/2022 FILED BY THE PETITIONER BEFORE THE HONOURABLE DISTRICT COURT, MANJERI.` - `Exhibit P2 TRUE COPY OF THE I.A. 2/2022 IN O.P (ARBITRATION) NO. 582/2022 DATED 29/09/2022 FILED BY THE PETITIONER BEFORE THE HONOURABLE DISTRICT COURT, MANJERI.` - `Exhibit P3 TRUE COPY OF THE AD-INTERIM INJUNCTION ORDER DATED 30/09/2022.` - `Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 15/10/2022 FILED BY THE RESPONDENTS` - `Exhibit P5 TRUE COPY OF THE NOTES OF ARGUMENTS DATED 18/10/2022 FILED BY THE COUNSEL FOR THE PETITIONER .` - `Exhibit P6 TRUE COPY OF THE ORDER DATED 31/10/2022 IN I.A. NO. 2/2022.` ``` Exhibit P7TRUE COPY OF THE CONSTITUTION OF THE 2ND RESPONDENT. ```