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2021 (4) TMI 1324 - HC - Indian LawsSeeking interim protection pending arbitration to restrain the 1st Respondent, IL & FS Financial Services Ltd. (IFIN) from acting on its Event of Default (EoD) notice of 23rd July 2019 - seeking temporary injunction restraining IFIN from acting in furtherance of a pledge invocation notice - Sections 241 and 242 of the Companies Act 1956 - HELD THAT:- The NCLAT has absolutely no jurisdiction over this Court, even on its Original Side, given that this is a Chartered High Court. The High Court is in no way subject to the NCLAT's jurisdiction or superintendence. I do not see how the words 'court of law' can be 'read down', because other than the NCLT, there is no other judicial authority over which the NCLAT exercises such superintending power. But if we leave that aside and focus on the words 'arbitration panel and arbitration authority', and even assuming for a moment that the NCLAT has the power to stay arbitrations, it certainly does not have the authority to stay the hands of this Court in hearing a petition under Section 9 or any other petition that properly comes before this Court under the Arbitration and Conciliation Act 1996. Indeed, I do not even see how the NCLAT has such control over arbitral tribunals. The NCLAT can make no order under Section 9, Section 11, Section 34, Section 37 or any of the other provisions of the Arbitration and Conciliation Act 1996. Notably, Section 9 of the Arbitration Act--and indeed no provision of that Act--is made subject to the provisions of the Companies Act 2013. This in itself is a telling circumstance. It is enough for the present order to hold that the NCLAT order cannot and does not come in the way of this Court making an appropriate order under Section 9 of the Arbitration and Conciliation Act 1996. When and how that arbitration is to be commenced is another matter, one with which I am not presently concerned. Everything in the Arbitration Act is founded on a contract; and this necessarily means that to claim an equitable and discretionary relief, a Section 9 petition is not to be handled like a regular civil suit invoking a non-contractual civil remedy. The Respondent must be shown to be in wrongful conduct. Its actions must be shown to ones in violation of the contract. A respondent seeking to enforce its contractual rights will suffer no injunction unless it is shown that the Respondent itself is in breach or has acted contrary to the contract. Once a breach by the Petitioner is not only demonstrated but is accepted, equity will not operate in its favour. Conversely, where there is a demonstration of a breach by the Respondent, the Petitioner may be entitled to seek an equitable relief in the court's discretion. Petition dismissed.
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