TaxTMI 
TaxTMI 
2016 (3) TMI 1324
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....partnership firm, would be shared between the partners in the proportion of 75 percent and 25 percent, the share of the respondent being 75 percent, and the share of the appellant being 25 percent. The said partnership firm contained a clause for settlement of disputes by arbitration. The partnership firm undertook six construction projects, particulars whereof have been given in the petition. However, disputes and differences arose between the respondent and the petitioner with regard to the partnership business and/or sharing of profits thereof. After the disputes arose, the appellant filed an application in the Court of the learned District Judge, Alipore, under Section 9 of the 1996, Act praying for inter alia an order of injunction restraining the respondent, his men, agent, representatives from transferring, alienating or creating rights in favour of third parties in respect of the assets and properties, including bank accounts, investment, securities in the name of the partnership firm, jointly owned by the petitioner and the respondent and other consequential reliefs, including appointment of a receiver. On the said application being moved, the Court of the learned....
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....king of the arbitral award but before it is enforced in accordance with section 36, apply to a court 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 subjectmatter 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 Court to be just and convenient,....
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....the aforesaid purposes any person to enter upon any land or building in 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 same 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, in the same manner as if it were an order of the Court." 26. Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree but this Act sha....
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....rocedure, 1908, in the manner as if it were an order of Court. Mr. Sabyasachi Bhattacharya appearing with Mrs. Sohini Chakraborty, however, argued that Section 26 of the Amendment Act of 2015 provides that, nothing contained in the said Amendment Act would apply to arbitral proceedings, commenced in accordance with the provisions of Section 21 of the principal Act, before the commencement of the said Amendment Act, unless the parties agreed otherwise. The provisions of the Amendment Act of 2015, would apply to proceedings initiated in Court. As argued by Mr. Bhattacharya, Section 21 of the principal Act, that is, the 1996 Act provides that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commences on the date on which a request for the reference of dispute to arbitration, is received by the respondent. Arbitral proceedings are proceedings before an Arbitral Tribunal, and no proceedings in Court under the provisions of the 1996 Act. Section 21 of the 1996 Act creates a legal fiction by which the arbitral proceedings commence on the date of receipt, by the respondent, of a request to refer the dispute to arbitration. Thus fo....
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....itral proceedings which commenced before 23rd October, 2015. The Amendment Act of 2015 would apply to all Court proceedings on and from 23rd October, 2015. The amendment Act of 2015 has retrospective operation from 23rd October, 2015. After 23rd October, 2015, the Court cannot entertain an application for interim relief under Section 9(1) of the 1996 Act, once the arbitral tribunal has been constituted, unless the Court is satisfied that circumstances exist, which may not render the remedy provided under Section 17 efficacious. Mr. Chowdhury cited Thyssen Stahlunion Gmbh Etc vs. Steel Authority Of India Ltd (supra) reported in (1999) 9 SCC 334 in support of his argument that the Amendment Act of 2015 would have no application to Court proceedings which commenced before the enforcement of the Amendment Act, 2015. In Thyssen Stahlunion Gmbh Etc vs. Steel Authority Of India Ltd (supra) the Supreme Court held that where arbitral proceedings had commenced before the enforcement of the 1996 Act, the arbitral award would have to be enforced in accordance with Arbitration Act, 1940 and not in accordance with Section 36 of the 1996 Act. The judgment in Thyssen Stahlunion Gmbh Et....
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....y stage prior thereto. Unlike the Limitation Act, which bars the institution of a suit after expiry of the period of limitation, Section 26 prohibits the Court from entertaining an application under Section 9, except in circumstances specified in Section 9(3), which necessarily means considering application on merits, even at the final stage. After amendment by the Amendment Act of 2015, the scope of Section 17 has considerably been widened and the Arbitral Tribunal has expressly been conferred the same power, as the Court under Section 9. An order of the Tribunal under Section 17 is also enforceable in the same manner as an order of Court under Section 9, under the provisions of the Civil Procedure Code. Mr. Chowdhury questioned the power of the Arbitral Tribunal to grant the interim reliefs contemplated in Section 17 of the 1996 Act, as amended by the Amendment Act of 2015, in case of arbitral proceedings which had commenced before the Amendment Act of 2015 came into force. Mr. Chowdhury submitted that, since the Amendment Act did not apply to arbitral proceedings that had already commenced before the said Act came into force the arbitral tribunal lacked power to grant those r....