Application of second section 9, relief cannot be awarded as it would amount to primary relief in arbitration: Gujarat High Court

the Gujarat High Court ruled that once a claim under section 9 of the Arbitration and Conciliation Act 1996 (A&C Act) seeking interim relief has been decided, a subsequent similar claim seeking similar relief, which have already been dealt with in the preceding procedure, is not admissible.

The Bench, made up of judges NV Anjarie and Samir J.Daveruled that a main measure cannot be granted at the interim stage and that the granting of interim instructions in the nature of a main measure is not authorized by law.

The appellant Time Cinemas and Entertainment Pvt Ltd entered into a lease with the respondent Venus Infrastructure and Developers Pvt Ltd. The leased premises were to be used by the appellant for the purposes of showing films.

The Respondent subsequently issued a notice to the Appellant to vacate the rented premises on the grounds of the Appellant’s non-payment of rent. Following a dispute between the parties, the Appellant invoked the Arbitration Agreement and the Respondent filed a claim under Section 11 of the A&C Act in the High Court of Gujarat for the appointment of a referee.

Subsequently, the appellant filed an application under section 9 of the A&C Act for interim measures in the commercial court to prevent the defendant from dispossessing the appellant of the leased premises. The Court allowed the application, ordering the respondent to take no coercive action against the appellant.

The appellant subsequently filed another application under Section 9 of the A&C Act for interim relief in the Commercial Court, seeking directions to the defendant to provide essential services to the appellant in the common part of the premises rented in accordance with the rental agreement. The commercial court dismissed the claim filed by the claimant and held that he had failed to pay the rent and maintenance charges provided for in the lease contract. Against this order made by the Commercial Court, the appellant appealed to the High Court of Gujarat under Section 37 of the A&C Act read together with Section 13 of the Commercial Courts Act 2015.

The Respondent Venus Infrastructure and Developers argued before the High Court that after the dismissal of the first application for interim relief filed by the Applicant, a second application for interim relief to the same effect was not admissible. The Respondent argued that he had no obligation to provide services to the Appellant after the termination of the lease.

The High Court noted that in the first section 9 interim relief application filed in the Commercial Court, the appellant sought directions to restrain the defendant from dispossessing the appellant of the leased premises and not to interfere appellant in the peaceful enjoyment of the leased property. local. The commercial court had ordered the defendant not to take any coercive measures against the appellant, but had made no order granting a dispensation from interference with the peaceful enjoyment of the rented premises.

The High Court observed that another application for interim measures had been filed by the appellant, in which the appellant asked the respondent to provide essential services such as lifts, escalators, among others in the part common leased premises, which was rejected by the Commercial Search. The appellant had argued in its second application for interim measures that without the provision of such services, the appellant would not be able to benefit from the fruits of the previous order issued by the commercial court by which the appellant was protected against any coercive action taken by the Respondent.

The High Court found that the applicant’s second application for interim relief was repetitive. The High Court has held that once a Section 9 claim for interim relief has been decided by granting the relief sought, in whole or in part, a subsequent similar claim seeking similar relief, which have already been covered in the previous procedure, is not maintainable.

The High Court thus ruled that the applicant’s second application for interim relief seeking similar relief was inadmissible.

“Once the request under Section 9 of the Arbitration and Conciliation Act requesting interim relief has been filed with similar prayers and settled by granting the prayers in whole or in part, a subsequent similar request doing prayers on the same lines that were dealt with in earlier proceedings, it could hardly be said to be maintainable.The second application with similar prayers was not maintainable.

The High Court held that the appellant, by seeking directions against the respondent to provide certain facilities and amenities as specified in said tenancy agreement, was attempting to revive the tenancy agreement which was already terminated. The High Court ruled that whether or not the appellant was entitled to exercise any rights under the tenancy agreement is an arbitral dispute to be decided by the arbitrator himself. The High Court added that the renewal of the tenancy agreement could not be granted by way of interim measures because that would amount to interfering in the field of arbitration and the litigation to be tried before the arbitrator.

The High Court held that to grant a direction in favor of the appellant, beyond the interim protection of quiet possession, would amount to granting primary relief to the appellant. The High Court held that primary relief could not be awarded at the interim stage and that the granting of interim directions of the nature of primary relief was not permitted by law.

“The granting of any instruction beyond the said interim protection of enjoyment of welfare would be tantamount to granting primary relief to the Applicant, which must be decided by the Tribunal. The relief which could not be granted by the Arbitrator that at the conclusion of the arbitral proceedings, would normally and under normal circumstances not be granted as an interim measure on the basis of the principle that a main measure cannot be granted at the interim stage and that the granting of interim instructions of the nature of granting a primary measure is not permitted by law.”

The Court therefore dismissed the appellant’s appeal.

Case title: Time Cinemas and Entertainment Pvt Ltd v Venus Infrastructure and Developers Pvt Ltd

Date: 21/04/2022 (High Court of Gujarat)

Counsel for the Appellant: Mr. Kishan Y Dave, Mr. Rasesh H Parikh and Mr. Hemang H Parikh

Counsel for the Respondent: Mr Jigar M Patel

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