Ms. Vijay Auto Agency, Hero Honda Dealers vs Senthil Arumugam

G. Rajasuria, J.—This appeal is focussed to get set aside the order dated 01.08.2007, passed in I.A. No. 48 of 2007 in A.R.O.P. No. 83

of 2007 on the file of the Principal District Judge, Tirunelveli.

A re''sume'' of facts absolutely necessary and germane for the disposal of this appeal would run thus:

(i) It appears, one Partnership firm by name Sri Perumal Motors and one M/s.Vijay Auto Agency, entered into an agreement which also contains

an arbitration clause so as to resolve the disputes between them amicably as per the Arbitration and Conciliation Act, 1996. Some dispute arose

relating to the style of functioning of the said Partnership firm namely Sri Perumal Motors. Thereupon, M/s.Vijay Auto Agency cancelled the

dealership. Whereupon, one Senthil Arumugam filed Ar.O.P. No. 83 of 2007 on the file of the Principal District Judge, Tirunelveli, by invoking

Section 9 of the said Act seeking injunction so as to restrain the respondent from appointing any other dealer for Hero Honda vehicles or opening

any show room in Valliyoor area. The petitioner therein filed I.A. No. 48 of 2007 seeking interim mandatory injunction to supply Hero Honda

vehicles pending settlement of dispute in accordance with the agreement.

(ii) The learned District Judge was pleased to pass order on 01.08.2007, directing the respondent to supply the vehicles and spares as per the

terms of the agreement, Ex.B.1 dated 26.01.2007 to the petitioner on the petitioner tendering full payment for the same till the disposal of the said

Ar.O.P. No. 83 of 2007.

Being aggrieved by and dissatisfied with, that order, the present appeal has been filed mainly on the ground that there was no privity of contract

between the petitioner Senthil Arumugam and M/s.Vijay Auto Agency, but there was privity of contract only between the said Partnership firm Sri

Perumal Motors and M/s.Vijay Auto Agency. Various other grounds also have been raised.

The point for consideration is as to whether the petitioner had locus standi to file Ar.O.P. No. 83 of 2007 and consequently to obtain interim

orders?

Heard both sides.

The learned Counsel for the appellant would convincingly and correctly by drawing the attention of this Court to the agreement itself; develop his

argument that a mere perusal of the agreement would show that the contract was between Sri Perumal Motors on the one side and M/s.Vijay Auto

Agency on the other side; no doubt, Senthil Arumugam signed it on behalf of Sri Perumal Motors; projecting himself as a partner representing the

said Sri Perumal Motors; in view of the same, the petitioner was not entitled to any relief and even then, the learned District Judge granted the said

mandatory injunction.

The learned Counsel for the respondent herein namely Senthil Arumugam, would argue that it was Senthil Arumuguam who actually signed the

agreement which was entered into between Sri Perumal Motors and M/s.Vijay Auto Agency and in such a case, absolutely, there is no legal flaw

on the part of Senthil Arumugam in approaching the Court u/s 9 of the Act for interim orders. In support of his proposition, he would cite the

decision of the Honourable Apex Court in Firm Ashok Traders and Another etc. Vs. Gurumukh Das Saluja and Others etc., . An excerpt from it,

would run thus:

...For the moment suffice it to say that the right conferred by S. 9 cannot be said to be one arising out of a contract. The qualification which the

person invoking jurisdiction of the Court under S. 9 must possess is of being a ''party'' to an arbitration agreement. A person not party to an

arbitration agreement cannot enter the Court for protection under S. 9. This has relevance only to his locus standi as an applicant. This has nothing

to do with the relief which is sought for from the Court or the right which is sought to be canvassed in support of the relief. The reliefs which the

Court may allow to a party under Cls.(i) and (ii) of S. 9 flow from the power vesting in the Court exercisable by reference to ''contemplated'',

''pending'' or ''completed'' arbitral proceedings. The Court is conferred with the same power for making the specified orders as it has for the

purpose of and in relation to any proceedings before it though the venue of the proceedings in relation to which the power under S. 9 is sought to

be exercised is the arbitral Tribunal.

A mere perusal of the aforesaid decision would highlight that even as per it, Ar.O.P. No. 83 of 2007 was not maintainable. The Honourable

Apex Court posited the proposition that the qualifications for invoking Section 9 of the Act is that he should be a party to an arbitration agreement.

Admittedly and unassailably, Sri Perumal Motors happened to be a party to that arbitration agreement and not Senthil Arumugam in his individual

capacity. It is a trite proposition of law that Senthil Arumugam as an individual is different from Senthil Arumugam as one of the partners capable of

representing Sri Perumal Motors.

The learned Counsel for the appellant drew the attention of this Court in detail to various portions of the said Ar.O.P. No. 83 of 2007 and

argued that nowhere Senthil Arumugam projected himself as a partner of Sri Perumal Motors, much less as a partner representing Sri Perumal

Motors.

I could see considerable force in the submission made by the learned Counsel for the appellant and accordingly, I hold that Ar.O.P. No. 83 of

2007 itself has not been properly instituted and in such a case, the question of passing any interim order would not arise.

At this juncture, the learned Counsel for the respondent herein made an extempore submission that in the event of this Court allowing this

appeal, liberty may be given to Sri Perumal Motors to file properly a fresh petition in the way known to law in order to get necessary remedies u/s

9 of the Act.

The learned Counsel for the appellant would submit that in such an event, the appellant herein may also be given liberty to contest such Ar.O.P

on merits.

Recording the submissions made on either side, I would like to allow this appeal giving liberty to Sri Perumal Motors, the Partnership firm to

file necessary application u/s 9 of the Act and in such an event, M/s.Vijay Auto Agency will have the right to contest it as per law. Consequently,

connected Miscellaneous Petition is closed. No costs.