M/s. Areeb Rolling Mills Pvt. Ltd. and Others vs NKGSB Co-operative Bank Ltd.

R.D. Dhanuka, J.—By this appeal filed u/s 37 of the Arbitration and Conciliation Act, 1996, appellants seek to challenge an order dated 5th July, 2012 passed by the learned arbitrator rejecting application filed by the appellants on 16th September, 2011. By the said application, the appellants had applied for a direction against the respondent bank to opt only for one remedy between the proceedings u/s 84 of the Multistate Co-operative Societies Act 2002 and the SARFAESI Act, 2002. Mr. Bhadrashete, the learned counsel appearing for the respondent raises preliminary objection in respect of the maintainability of this appeal u/s 37 of the Act on the ground that though the appellants have in the cause title of the Memorandum of Appeal has referred to the order passed by the learned arbitrator as if the order passed u/s 17 of the Act, on perusal of the averments and prayers made in the said application, it is clear that the said application is not u/s 17 of the Arbitration and Conciliation Act, 1996 and such order is not an appealable order u/s 37 of the Act.

Perusal of the application filed by the appellants it is clear that by the said application, appellants has sought direction to the respondents to opt only for one remedy out of the two adopted by the bank. Such application is rejected by the learned arbitrator. On plain reading of Section 17 of the Arbitration and Conciliation Act, 1996, it is clear that the said provision is for grant of interim measures of protection as the Arbitral Tribunal may consider necessary in respect of the subject matter of the dispute and while considering such interim measures of protection, the Arbitral Tribunal has power to require a party to provide appropriate security in connection with such measure, ordered under sub-section 1 of section 17. In my view such application for seeking inspection, interrogation filed by the petitioner does not fall u/s 17 of the Arbitration and Conciliation Act, 1996.

On plain reading of section 37(2) of the Act, it is clear that appeal is maintainable from the order of Arbitral Tribunal accepting the plea referred to subsection 2 or sub-section 3 of Section 16 or granting or refusing to grant any interim measures u/s 17. In my view, since the order passed by the learned arbitrator does not fall either u/s (2) (a) or (b), the present appeal is thus not maintainable. Appeal is maintainable against no other orders of the Arbitral Tribunal other than what is provided for in sub-section (2) of Section 37.

I am, thus, inclined to accept the preliminary objection raised by the learned counsel appearing for the respondent. I am of the view that appeal is not maintainable and is therefore rejected. There shall be no order as to costs.