Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2007 (5) TMI 642 - SUPREME COURT

2007 (5) TMI 642 - SUPREME COURT - 2007 AIR 2144, 2007 (7) SCR 180, 2007 (6) SCC 798, 2007 (8) JT 32, 2007 (7) SCALE 567 - Civil Appeal No. 2707 of 2007 - Dated:- 17-5-2007 - TARUN CHATTERJEE AND P.K. BALASUBRAMANYAN JJ. JUDGMENT: P.K. BALASUBRAMANYAN, J. 1. Leave granted. 2. M/s Kalinga Mining Corporation, a partnership firm bearing registration No. 71/1949, came into existence on 10.12.1949. During the years from 1973 to 1980, the firm obtained three mining leases from the State Government. Th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f the appellant authorizing it to administer the mines and sell the iron ore extracted therefrom. 4. On 13.3.2001, the term of 10 years fixed in the agency agreement expired. New terms were negotiated between the parties and on 22.9.2001, the agreement was extended for a period of three years commencing from 14.3.2001. The term was to end with 31.3.2003. Again, on 3.9.2003, the term of the agreement was extended for a further period of three years commencing from 1.4.2003. Thereby, the period wa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t is seen that the respondent firm, for reasons best known to itself, sought for and got a fresh registration on 24.12.2005 and a firm having the same name was again registered and assigned registration No. 595/2005. Prima facie, this was unwarranted and the excuse put forward was that the partners, some of whom were partners even originally, could not trace the papers relating to the registration of the firm in the year 1949. Be that as it may, on receipt of the communication in that behalf fro .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Orissa to appoint the third arbitrator on the basis that the firm had failed to act in terms of the procedure agreed to by the parties. The said application is said to be pending. 7. The appellant-company also moved an application under Section 9 of the Act before the District Court, Cuttack seeking interim relief essentially to permit it to continue to carry on the mining operations and to restrain the respondent firm from interfering with it. According to the appellant, the agreement between t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

brought in the requisite machinery for that purpose. All the necessary investments had been made by it and in that situation, the balance of convenience was in favour of the grant of an interim order as sought for by the appellant. The respondent firm resisted the application, inter alia, contending that the agreement between the parties was essentially an agency agreement. Such an agreement could not be specifically enforced. On the expiry of the term, the appellant- company had no subsisting .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e just and appropriate to maintain the order of status quo until the disputes are referred to the Arbitral Tribunal and the Tribunal takes seisin of the dispute. Thus, the order of status quo originally granted was directed to continue until the Arbitral Tribunal was constituted to take up the disputes between the parties. Feeling aggrieved, the respondent firm - there is a plea that the appeal was filed by the firm of 2005 and not by the firm of 1949 which we shall deal with - filed an appeal b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

iled by the appellant-company under Section 9 of the Act. 9. Feeling aggrieved by the said decision, the appellant-company has filed this appeal. It is contended on its behalf that the appeal filed before the High Court was not by the firm bearing registration No. 71/1949 with which the appellant-company had the agreement. The arbitration clause, which the appellant-company had invoked, was in relation to that agreement and hence the appeal before the High Court, at the instance of the firm bear .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t could be specifically enforced in the light of Sections 10 and 42 of the Specific Relief Act. It was also faintly suggested that the powers under Section 9 of the Act were independent of any restrictions placed by the Specific Relief Act and viewed in that manner, nothing stood in the way of the appellant-company being granted an order of injunction or at least an order to maintain status quo until the Arbitral Tribunal decided the dispute. 10. On behalf of the respondent firm, it was contende .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ho were presently partners of the firm and there was no grace in the contention of the appellant-company that the appeal in the High Court was not filed by the firm which was a party to the contract with the appellant. On merits, it was submitted that the agreement was for a specific term, there was no irrevocability in the agency agreement and an agreement like the one entered into between the parties by way of a raising contract, could not be specifically enforced as rightly held by the High C .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the period of the contract between the respondent firm and the appellant- company had come to an end. It could be seen therefrom that the appellant-company had taken over, directly, the liability in respect of the labourers who were being employed by the appellant-company during the subsistence of the raising contract. It was also submitted that the respondent firm had started mining operations on its own and the balance of convenience was not in favour of grant of any interim order as was done .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r law since it was the mining agency under the State Government. It was therefore submitted that the appellant-company had no prima facie case for an injunction as sought for. 11. The objection that the appeal filed before the High Court was not competent need not detain us much. It was the appellant who filed the application under Section 9 of the Act impleading the firm and its partners. The said firm represented by a partner, who even admittedly was a partner of the firm as constituted in the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the appeal by that firm represented by its partner. It was brought to our notice that the respondent firm had sought a rectification of the register realizing the mistake that was made in having the same firm registered all over again, and that the said matter is pending. Considering the circumstances, we are of the view that the argument that the appeal before the High Court was not competent, it not having been filed by the firm with which the appellant- company had the contract, is unsusta .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

with the mining leases and the respondent firm could not terminate the agreement so long as the mining leases in its favour continued to be in force. Nor do we think it proper to decide the sustainability of the argument on behalf of the respondent firm that it was mainly an agency agreement for a fixed term and on the expiry of the term, no right survives in the appellant-company unless of course the respondent firm agreed to an extension of the period. We leave that question open for decision .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

was wrong in thinking that it may be a case where an injunction could not be granted in view of the provisions of the Specific Relief Act. Here again, we do not think that we should pronounce on that question since that again will be a question for the arbitrator to pronounce upon. Suffice it to say that the position is not clear enough for us to assume for the purpose of this interlocutory proceeding that the appellant is entitled to specifically enforce the agreement dated 14.3.1991 read in th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the High Court. In that view alone, we consider it proper to decline to interfere with the order of the High Court and leave the parties to have their disputes resolved in terms of the arbitration agreement between the parties. 15. The argument that the power under Section 9 of the Act is independent of the Specific Relief Act or that the restrictions placed by the Specific Relief Act cannot control the exercise of power under Section 9 of the Act cannot prima facie be accepted. The reliance .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Act in that behalf. It is also clarified that the Court entertaining an application under Section 9 of the Act shall have the same power for making orders as it has for the purpose and in relation to any proceedings before it. Prima facie, it appears that the general rules that governed the court while considering the grant of an interim injunction at the threshold are attracted even while dealing with an application under Section 9 of the Act. There is also the principle that when a power i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

under Section 9 of the Act is not controlled by Order XVIII Rule 5 of the Code of Civil Procedure is a view taken by the High Court of Bombay. But, how far these decisions are correct, requires to be considered in an appropriate case. Suffice it to say that on the basis of the submissions made in this case, we are not inclined to answer that question finally. But, we may indicate that we are prima facie inclined to the view that exercise of power under Section 9 of the Act must be based on well .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version