S.G.S. India Private Limited vs Indian Institute Of Management, Kundeshwari, Kashipur, District Udham Singh Nagar

Sudhanshu Dhulia, J

The petitioner before this Court had entered into a contract with the Indian Institute of Management, Kashipur, wherein he was to undertake the

work of a project management consultant. The work of the project management consultant is by and large of supervision of the construction work

which was to be done by another agency. The employer i.e. the Indian Institute of Management, Kashipur, has found certain deficiencies in the work

of the petitioner and after pointing out those deficiencies to the petitioner from time to time and after giving the petitioner a show cause notice and

hearing the stand of the petitioner, the respondent has ultimately banned the petitioner for future business vide order dated 23.05.2019. This amounts to

blacklisting of the petitioner, an order which the petitioner has challenged before this Court.

According to the petitioner, since the payment was not being given by the employer as per the schedule, they had raised their grievance before the

employer regarding the payment of their dues. This exercise of blacklisting of the petitioner is nothing but a counterblast and retaliation of the payment

of the petitioner.

It is also admitted by the petitioner that he has not been doing any work for the employer and now between the two, a dispute had come up, which

has already gone for arbitration with the mutual consent of both the parties and the learned Arbitrator is presently seized with the matter.

In view of the settled position, the petitioner has a remedy to move an application for relief under Section 9 or Section 17 of the Arbitration and

Conciliation Act, 1996 (from hereinafter referred to as the “Actâ€), before the principal civil court or the learned Arbitrator. However, after the

2015 Amendment, the scope of interference by the principal civil court under sub-section (3) to Section 9* of the Act has become extremely limited.

Section 9. Interim measures, etc. by Court.-

(1)….

(2)….

(3) Once the arbitral tribunal has been constituted, the 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.â€​

All the same, the powers under Section 17 of the Act are always there with the learned Arbitrator, who, inter alia, has got powers to pass an

interim order for protection “as may appear to the arbitral tribunal to be just and convenientâ€​ under sub-section (ii) (e) to Section 17* of the Act.

“Section 17. Interim measures ordered by arbitral tribunal.-

(1). A party may, during the arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with

Section 36, apply to the arbitral tribunal-

(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 arbitral tribunal to be just and convenient and the arbitral tribunal shall have the

power for making orders, as the court has for the purpose of, and in relation to, any proceedings before it.

(2) Subject to any orders passed in an appeal under Section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an

order of the court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were an

order of the court.â€​

In view of the above, writ petition is not a remedy available for the petitioner. The writ petition is hereby dismissed.

Let a certified copy of this order be given within a period of twenty-four hours on payment of usual charges.