I think the learned counsel for the appellants is right in
saying so. Although, the argument of learned counsel for the
respondents looks impressive at first blush, on a deeper examination
one can say it has no force. The immediate impact of the impugned
order may be innocuous as it neither grants nor refuses to grant
interim measure under Section 9 and it merely returns the application
to the appellants for being presented to an appropriate forum. But
the impact also has its ripple effect which hits the appellants and
even the respondents in an adverse manner. The ripple effect in this
case is quite like a seismic wave which causes more damage at farther
distance than at the origin or at the epicentre as far as the party
seeking the interim measure under Section 9 of the Arbitration Act is
concerned. A preliminary objection taken on the ground of lack of
jurisdiction when wrongly decided, would defeat the valuable right of
the party to get immediate protection. The purpose of Section 9 is to
swing law into motion without any loss of time to preserve the
property, secure the amount in question, maintain status quo and the
like. This right of the party to approach the Court for getting
immediate interim relief under Section 9 would be seriously
prejudiced, when the preliminary objection is upheld wrongly. This is
because if later on it is found that the Court upholding the preliminary
objection did have the jurisdiction and the other Court to whom that
party was directed did not have the jurisdiction, the position will be
back to square one. Similarly, if the preliminary objection is wrongly
rejected and the proceedings of the application are continued,
although ought not to have been continued, a valuable right of the
defendant, who is otherwise entitled to get the application dismissed
on a preliminary ground, would also be seriously imperilled.
Therefore, appelability of an order has to be guaged by not only its
immediate effect but also its ripple effect. If the ripple effect brings
the order within the circumference of Section 9, it would be an order
appealable under Section 37(1)(b) of the Arbitration Act, which is
what the order impugned herein is.
IN THE HIGH COURT OF BOMBAY AT GOA
GOA PANAJI
APPEAL UNDER ARBITRATION ACT No.2 OF 2015
M/s. Nivaran Solutions V M/s. Aura Thia Spa Services
Pvt. Ltd.
CORAM : S.B. SHUKRE, J.
DATED : 4th MAY , 201 6.
Citation:2016(5) MHLJ234
