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Judgment
Arindam Sinha, J
Mr. Rath, learned advocate appears on behalf of appellant and submits, impugned is judgment dated 17th February, 2022 whereby though the Court below found prima facie case but refused injunction saying the inconvenience is temporary. He submits, his client is tenant for commercial purpose. His client’s business is being obstructed by stacking of bricks and ultimately construction of wall to prevent access to his client’s warehouse under the tenancy. There be direction for interim measure to protect his client, pending resolution on disputes by arbitration.
Mr. Mohapatra learned senior advocate appears on behalf of respondents and draws attention to agreement clause 17 in tenancy agreement dated 10th February, 2020. He relies on the following, in the clause.
“…..but however, it is agreed that eviction of the property by Second Part shall not be within the scope of arbitration and tenancy shall continue during adjudication of proceedings also.”
He submits, the dispute is not arbitrable as excepted by the arbitration agreement clause.
Without prejudice to his above contention he submits further, appellant has not taken any step for appointment of arbitrator. The petition made under section 9 of Arbitration and Conciliation Act, 1996 was with oblique motive and there should not be interference in impugned judgment. There is also fraud involved.
By impugned judgment the Court below clearly found that there is no dispute regarding eviction. Appellate had asserted tenancy, which was not denied by respondents. So far as prayer for interim measure is concerned, it was dealt with by the Court below as follows.
“In the wake of above discussion, although the petitioner has a prima facie case, the balance of convenience does not tilt in his favour. The inconvenience, if any for couple of days, for stacking of bricks, cannot be said to be irreparable. So, the question of sustaining irreparable loss does not arise.”
On query from Court Mr. Mohapatra, submits, construction work is going while Mr. Rath submits, a wall has been constructed obstructing access to his client’s tenancy.
Mr. Tarun Kumar Pattnaik, learned advocate is appointed as Special Officer to visit the tenanted warehouse of appellant on 2nd April, 2022. Appellant will, at first instance, pay remuneration of Rs.15,000/- to the Special Officer. It will make appropriate arrangements to take the Special Officer to the spot, reaching at about 11:00 a.m. in the morning. Parties will assist the Special Officer in making his inspection. Special Officer will take photographs and file a report on adjourned date.
List on 7th April, 2022. The interim order to continue till next date.
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