Order vs Unknown on 28 August, 2009

    IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 28.8.2009

CORAM

THE HON'BLE MR. JUSTICE P.JYOTHIMANI

Original Application No.689 of 2009

 ORDER

     This application is filed under Section 9 of the Arbitration and
Conciliation Act, 1996 (for brevity, "the Act") seeking for an order of
injunction restraining the respondent from proceeding further with the show
cause notice issued by the respondent dated 23.6.2009 pending appointment of an
Arbitrator.

 2. The applicant was granted Agency/Distributorship to deal in Indane Gas of
selling Indane LPG Cylinders. The applicant entered into a Memorandum of
Agreement with the Indian Oil Corporation Limited on 30.6.2000. Under the show
cause notice issued by the respondent dated 23.6.2009, the respondent has
pointed out some discrepancies and deficiencies as breach of conditions of
agreement and called upon the applicant to show cause as to why distributorship
should not be terminated.  3.1. It is the case of the applicant that the show
cause notice is pre-determined and only an empty formality and the respondent
has already decided against the applicant which is evidenced from the fact that
the respondent has filed caveat applications before the Principal District
Munsif Court, Puducherry and District Munsif Court, Tiruchirapalli.

 3.2. The applicant states that the arbitration clause in the agreement is one-
sided since the official of the respondent himself cannot sit as an Arbitrator.
The arbitration clause states that the Director (Marketing) of the respondent
should be the Arbitrator, which according to the applicant is opposed to Section
28 of the Indian Contract Act.

 3.3. It is stated that the applicant has been the distributor of the respondent
for the past eight years without blemish and the charges are levelled against
the petitioner only wantonly.

 4.1. In the counter affidavit filed by the respondent, it is stated that the
charges against the petitioner as depicted in the show cause notice are not
trivial, but they are serious in nature.

 4.2. It is the case of the respondent that the application under Section 9 of
the Act is not maintainable. It is the case of the respondent that inasmuch as
the applicant disowns the clause relating to the appointment of the Arbitrator
by saying that it is one-sided, the applicant cannot maintain an application
under Section 9 of the Act, which is applicable only in cases where the
arbitration is accepted by the parties and in such circumstances, the applicant
has to only seek relief under Section 11 of the Act and in any event, the order
of injunction which is sought for amounts to interfering with the proceedings
before the Arbitral Tribunal. It is also denied that the agreement is opposed to
Section 28 of the Indian Contract Act.  4.3. It is stated that the subject-
matter is only at the show cause notice stage and the applicant has to give
reply and only thereafter, action will be taken in accordance with law. It is
the case of the respondent that that is the view of the Division Bench of this
Court.

 5.1. Mr.V.T.Gopalan, learned Senior Counsel appearing for the applicant, while
referring to various provisions of the agreement, would submit that the
provision which enables the official of the respondent to be appointed as sole
Arbitrator is opposed to public policy. In this regard, he would rely upon the
judgment of the Supreme Court in State of Karnataka v. Shree Rameshwara Rice
Mills, Thirthahalli, [1987] 2 SCC 160 and also the latest judgment of the
Supreme Court in Bharat Sanchar Nigam Limited and another v. Motorola India
Private Limited, [2009] 2 SCC 337.  5.2. According to the learned Senior
Counsel, if the breach is accepted by the party the officer of the company can
be appointed, however in the present case, there is a serious dispute about the
contents and charges levelled against the applicant and in the context of the
present position, the said clause in the agreement is to be construed to be
opposed to Section 28 of the Indian Contract Act.  5.3. It is his submission
that the respondent has already decided the issue and it is revealed by the fact
that caveat applications have been filed by the respondent against the applicant
in various courts.

 6.1. On the other hand, it is the contention of Mr.R.Ravi, learned counsel for
the respondent that it is the duty of the applicant to reply to the show cause
notice and there cannot be any interference.

 6.2. It is his submission that the agreement has been consciously accepted by
the applicant and unless the applicant acts as per the provisions of the
arbitration clause in the agreement, he cannot invoke Section 9 of the Act.
There must be a manifest intention on the part of the person who approaches this
Court under Section 9 of the Act to enforce the arbitration clause. He would
rely upon the judgments in Sundaram Finance Limited v. NEPC India Limited,
[1999] 2 SCC 479 and Firm Ashok Traders and another v. Gurumukh Das Saluja and
others, [2004] 3 SCC 155= [2004] 2 CTC 208.  6.3. He would submit that even if
the official of the respondent who is appointed as Arbitrator is biased, it is
not as if the applicant has no remedy available, as at that stage the applicant
can always challenge the validity of the award. In this regard, he would rely
upon the judgments in (i) Crawford Bayley & Co. v. Union of India, [2006] 6 SCC
25; (ii) Yashwith Constructions (P) Ltd. v. Simplex Concrete Piles India Ltd.,
[2006] 6 SCC 204; and (iii) State of Uttar Pradesh v. Sheo Shanker Lal
Srivastava, [2006] 3 SCC 276. He would submit that the judgment of the Supreme
Court in Bharat Sanchar Nigam Limited and another v. Motorola India Private
Limited (supra) is not applicable to the facts of the present case.  6.4. To
substantiate his contention that this court should not interfere with the show
cause notice, he would rely upon the judgments in (i) Rashtriya Ispat Nigam
Limited v. Verma Transport Co., AIR 2006 SC 2800; (ii) ACE Pipeline Contracts
(P) Limited v. Bharat Petroleum Corporation Limited, [2007] 5 SCC 304; (iii)
Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh, [1996] 1
SCC 327; (iv) Special Director and another v. Mohd. Ghulam Ghouse and another,
2004 AIR SCW 416; and (v) Union of India v. Kunisetty Satyanarayana, AIR 2007 SC
906.  6.5. It is his contention that the dispute has not yet arisen and at this
stage invoking of jurisdiction under Section 9 of the Act does not arise.

 7.1. Before proceeding to deal with the respective contention of the learned
Senior Counsel for the applicant and the learned counsel for the respondent, it
is relevant to point out the clause relating to arbitration under the Memorandum
of Agreement entered between the applicant and the respondent dated 30.6.2000,
which is Clause 37. The said clause is as follows:

"37. (a) All questions, disputes and differences arising under or in relation to
this Agreement shall be referred to the sole arbitration of the Director
(Marketing) of the Corporation. If such Director (Marketing) is unable or
unwilling to act as the sole arbitrator, the matter shall be referred to the
sole arbitration or some other officer of the Corporation by such Director
(Marketing) in his place, who is willing to act as such sole arbitrator. It is
known to the parties herein that the Arbitrator appointed hereunder is an
employee of the Corporation and may be Shareholder of the Corporation. The
arbitrator to whom the matter is originally referred, whether the Director
(Marketing) or Officer, as the case may be, on his being transferred or vacating
his office or being unable to act, for any reason, the Director (Marketing)
shall designate any other person to act as arbitrator in accordance with the
terms of the Agreement and such person shall be entitled to proceed with the
reference from the stage at which it was left by his predecessor. It is also the
term of this Agreement that no person other than the Director (Marketing) as
aforesaid shall act as arbitrator. The award of the Arbitrator so appointed
shall be final, conclusive and binding on all the parties to the Agreement and
provisions of the Arbitration & Conciliation Act, 1996 or any statutory
modification or re-enactment thereof and the Rules made thereunder and for the
time being in force shall apply to the arbitration proceedings under this
clause. (b) The parties hereby agree that the court in city of Chennai alone
shall have jurisdiction to entertain any application or any award/s made by the
Sole Arbitrator or other proceedings in respect of anything arising under the
Agreement."

  7.2. Clause 27 of the Agreement contemplates the happening of various events
upon which the respondent can terminate the agreement and it is under Clause 28
of the Agreement both the parties to the contract are entitled to terminate the
agreement by giving thirty days notice to the other party without assigning any
reason for such termination. Clause 28 reads as under:

"28. Without prejudice to the foregoing provision or anything to the contrary
herein contained, either of the parties hereto, namely, the Corporation or the
Distributor, shall be entitled to terminate this Agreement on giving thirty days
notice to the other party without assigning any reason for such termination."

 8. The impugned show cause notice dated 23.6.2009 proceeds on the basis that
the applicant has committed serious violation of the Distributorship Agreement
dated 30.6.2000 read with the Marketing Discipline Guidelines, 2001 and
therefore, as per the provisions of the agreement, especially Clause 27, the
show cause notice has been issued to the applicant by giving seven days time.
The discrepancies pointed out in the show cause notice relate to the explosive
licence, safety instructions, stock board, failure of fire extinguisher, etc.
The show cause notice also points out the major deviations and explains various
clauses of the agreement to show the gravity of the charges framed against the
applicant.

 9. The applicant has, in fact, given his detailed reply on 30.6.2009 to the
respondent. In the reply, the applicant has clearly stated that since the
applicant is seriously disputing each and every one of the deficiencies and
deviations, the respondent being a party to the agreement cannot decide the
dispute against the applicant and the same is opposed to Section 28 of the
Indian Contract Act and therefore, called upon the respondent not to decide the
arbitration by its official.

 10. In State of Karnataka v. Shree Rameshwara Rice Mills, Thirthahalli, [1987]
2 SCC 160, the Supreme Court construed Clause 12 of the agreement to purchase
paddy by the State of Mysore under the Paddy Procurement Scheme, 1959, which is
as follows:

In token of the first partys willingness to abide by the above conditions, the
first party has hereby deposited as security a sum of Five Hundred Rupees only
with the second party and for any breach of conditions set forth hereinbefore,
the first party shall be liable to pay damages to the second party as may be
assessed by the second party, in addition to the forfeiture in part or whole of
the amount deposited by him. Any amount that may become due or payable by the
first party to the second party under any part of the agreement, shall be deemed
to be and may be recovered from the first party as if they were arrears of land
revenue, by which the State has been conferred power to assess the damages in
case of any breach of conditions committed by the individual party. The Supreme
Court finding that the Deputy Commissioner representing the State who was a
party to the agreement himself was to assess the damages, rejected the
contention of the State and held that on a reading of the said Clause 12 it is
clear that the State can assess damages only if the breach of conditions is
admitted. It was held as follows: "7. On a consideration of the matter we find
ourselves unable to accept the contentions of Mr Iyenger. The terms of clause 12
do not afford scope for a liberal construction being made regarding the powers
of the Deputy Commissioner to adjudicate upon a disputed question of breach as
well as to assess the damages arising from the breach. The crucial words in
clause 12 are and for any breach of conditions set forth hereinbefore, the
first party shall be liable to pay damages to the second party as may be
assessed by the second party. On a plain reading of the words it is clear that
the right of the second party to assess damages would arise only if the breach
of conditions is admitted or if no issue is made of it. If is was the intention
of the parties that the officer acting on behalf of the State was also entitled
to adjudicate upon a dispute regarding the breach of conditions the wording of
clause 12 would have been entirely different. It cannot also be argued that a
right to adjudicate upon an issue relating to a breach of conditions of the
contract would flow from or is inhered in the right conferred to assess the
damages arising from a breach of conditions. The power to assess damages, as
pointed out by the Full Bench, is a subsidiary and consequential power and not
the primary power. Even assuming for arguments sake that the terms of clause 12
afford scope for being construed as empowering the officer of the State to
decide upon the question of breach as well as assess the quantum of damages, we
do not think that adjudication by the officer regarding the breach of the
contract can be sustained under law because a party to the agreement cannot be
an arbiter in his own cause. Interests of justice and equity require that where
a party to a contract disputes the committing of any breach of conditions the
adjudication should be by an independent person or body and not by the officer
party to the contract. The position will, however, be different where there is
no dispute or there is consensus between the contracting parties regarding the
breach of conditions. In such a case the officer of the State, even though a
party to the contract will be well within his rights in assessing the damages
occasioned by the breach in view of the specific terms of clause 12.

8. We are, therefore, in agreement with the view of the Full Bench that the
powers of the State under an agreement entered into by it with a private person
providing for assessment of damages for breach of conditions and recovery of the
damages will stand confined only to those cases where the breach of conditions
is admitted or it is not disputed."

 11. The above said view was confirmed by the Supreme Court in Bharat Sanchar
Nigam Limited and another v. Motorola India Private Limited, [2009] 2 SCC 337
while dealing with the Arbitration and Conciliation Act, 1996 itself, of course
relating to the appointment of an arbitrator. In that case, two clauses in the
agreement were considered, viz., Clauses 16.2 and 20.1. The said clauses are as
follows:  16.2. Should the tenderer fail to deliver the goods and services on
turnkey basis within the period prescribed, the purchaser shall be entitled to
recover 0.5% of the value of the delayed quantity of the goods and services, for
each week of delay or part thereof, for a period up to 10 weeks and thereafter
at the rate of 0.7% of the value of the delayed quantity of the goods and
services for each week of delay or part thereof for another 10 weeks of delay.
In the present case of turnkey solution of supply, installation and
commissioning, where the delayed portion of the delivery and provisioning of
services materially hampers effective user of the systems, liquidated damages
charged shall be levied as above on the total value of the package concerned of
the purchase order. Quantum of liquidated damages assessed and levied by the
purchaser shall be final and not challengeable by the supplier.  20.1. In the
event of any question, dispute or difference arising under this agreement or in
connection therewith (except as to the matters, the decision to which is
specifically provided under this agreement), the same shall be referred to the
sole arbitration of the CGM, Kerala Telecom Circle, BSNL or in case his
designation is changed or his office is abolished, then in such cases to the
sole arbitration of the officer for the time being entrusted (whether in
addition to his own duties or otherwise) with the functions of the CGM, Kerala
Telecom Circle, BSNL or by whatever designation such an officer may be called
(hereinafter referred to as the said officer), and if the CGM, Kerala Telecom
Circle or the said officer is unable or unwilling to act as such, then to the
sole arbitration of some other person appointed by the CGM, Kerala Telecom
Circle or the said officer. The agreement to appoint an arbitrator will be in
accordance with the Arbitration and Conciliation Act, 1996.  There will be no
objection to any such appointment on the ground that the arbitrator is a
government servant or that he has to deal with the matter to which the agreement
relates or that in the course of his duties as a government servant he has
expressed his views on all or any of the matters in dispute. The award of the
arbitrator shall be final and binding on both the parties to the agreement. In
the event of such an arbitrator to whom the matter is originally referred, being
transferred or vacating his office or being unable to act for any reason
whatsoever, the CGM, Kerala Telecom Circle, BSNL or the said officer shall
appoint another person to act as an arbitrator in accordance with the terms of
the agreement and the person so appointed shall be entitled to proceed from the
stage at which it was left out by his predecessors.  The contract was relating
to turnkey project on planning, engineer, supply, installation and commissioning
of Indian Mobile Personal Communications System in the Telecom Circles of
Kerala, Karnataka, Tamil Nadu and Andhra Pradesh. The purchaser, being the BSNL,
is to assess the liquidated damages which may be caused due to any delay by the
tenderer as per clause 16.2. Under the arbitration clause 20.1, the senior
official of BSNL is the sole arbitrator. While dealing with a contention that
Clause 16.2 is an "excepted matter", namely there is an exhaustive provision in
the agreement itself which provides a named adjudicator and it requires no
further adjudication and the parties themselves have unequivocally accepted, the
Supreme Court, by referring to the judgment in State of Karnataka v. Shree
Rameshwara Rice Mills, Thirthahalli, supra, observed as follows: "27. The
abovestated position can be ascertained through the judgment of this Court in
State of Karnataka v. Shree Rameshwara Rice Mills, [1987] 2 SCC 160. This Court
in the said case, made a clear distinction between adjudicating upon an issue
relating to a breach of condition of contract and the right to assess damages
arising from a breach of condition. It was held that the right conferred to
assess damages arising from a breach of condition does not include a right to
adjudicate upon a dispute relating to the very breach of conditions and that the
power to assess damages is a subsidiary and consequential power and not the
primary power.

28. Clause 20.1 regarding excepted matters reads:

In the event of any question, dispute or difference arising under this
agreement or in connection therewith (except as to the matters, the decision to
which is specifically provided under this agreement),

Therefore, it is clear from this provision, matters which will not fall within
the arbitration clause are questions, disputes or differences, the decision to
which is specifically provided under the agreement. Clause 16.2 is not a clause
wherein any decision-making power is specifically provided for with regard to
any question, dispute or difference between the parties relating to the
existence of breach or the very lack of liability for damages i.e. the levy of
liquidated damages."  It was in those circumstances, by taking a stand that even
if it is an excepted matter, the delay has to be ultimately assessed by the
Department whose official is sitting as an arbitrator, the Supreme Court held
that Clause 16.2 which states that the assessment of liquidated damages by the
purchaser is final, is in restraint of the legal proceedings under Section 28 of
the Indian Contract Act and therefore, the said clause is bad. The operative
portion of the said judgment is as follows: "37. Further, the CGM, Kerala Circle
has already taken a decision as is evident from his letter dated 25-4-2006, that
the appellants were right in imposing the liquidated damages and therefore, the
question of such a person becoming an arbitrator does not arise as it would not
satisfy the test of impartiality and independence as required under Section 12*
of the Arbitration and Conciliation Act, 1996. Moreover, it would also defeat
the notions laid down under the principles of natural justice wherein it has
been recognised that a party cannot be a judge in his own cause. The judgment of
this Court in State of Karnataka v. Shree Rameshwara Rice Mills, [1987] 2 SCC
160 is significant in this matter. The Court had stated: (SCC p.161)  Even
assuming that the [terms of Clause 12 afford] scope for being construed as
empowering the officer of the State to decide upon the question of breach as
well as assess the quantum of damages, adjudication by the officer regarding the
breach of the contract cannot be sustained under law because a party to the
agreement cannot be an arbiter in his own cause. Interests of justice and equity
require that where a party to a contract disputes the committing of any breach
of conditions the adjudication should be by an independent person or body and
not by the other party to the contract.

38. The provision under Clause 16.2 that quantification of the liquidated
damages shall be final and cannot be challenged by the supplier Motorola is
clearly in restraint of the legal proceedings under Section 28 of the Contract
Act. So the provision to this effect has to be held bad."

 12. On the facts of the case, as per Clause 27, for the breach of conditions,
the agreement can be terminated and in the impugned show cause notice various
breaches committed have been explained by the officials of the respondent,
namely the Executive Director and in such circumstances, as held by the Supreme
Court the principles of natural justice as adumbrated in the legal maxim nemo
debet esse judex in propria causa sua that is, no man shall be a judge in his
own cause is applicable to the facts of the present case.

 13. On the facts and circumstances of the present case wherein the breach
alleged has been denied by the applicant, to allow the official of the
respondent to decide his own charge against the applicant cannot be sustained,
but, in any event, as correctly submitted by the learned counsel for the
respondent it is only for the applicant to take appropriate action in the manner
known to law, either under Section 11 of the Act or otherwise.

 14. It is not as if the applicant has disowned the agreement. The case of the
applicant is that it denies the charges in the impugned show cause notice, and
therefore, when an official of the respondent has formulated his mind that a
breach has been effected, any other officer of the respondent/Corporation cannot
sit as an arbitrator. Hence, what has to be considered in this case is whether
the applicant's interest is to be protected or not till a decision is taken
regarding arbitration.

 15. Any move by the applicant for the purpose of appointment of an individual
arbitrator despite the fact that the arbitration clause enumerates an official
of the respondent/Corporation itself, is for the parties to work out in
appropriate forum under Section 11 of the Act. Therefore, the judgments of the
Supreme Court in ACE Pipeline Contracts (P) Limited v. Bharat Petroleum
Corporation Limited, [2007] 5 SCC 304, India Household and Healthcare Ltd. v. LG
Household and Healthcare Ltd., [2007] 5 SCC 510 and Datar Switchgears Ltd. v.
Tata Finance Ltd., [2000] 8 SCC 151 relied upon by the learned counsel for the
respondent are not applicable for the purpose of this Court deciding an interim
measure of protection under Section 9 of the Act.

 16. Law is well settled that as against the show cause notice no writ petition
will be entertained, as it has been held in hierarchy of cases including Special
Director and another v. Mohd. Ghulam Ghouse and another, 2004 AIR SCW 416 and
Union of India v. Kunisetty Satyanarayana, AIR 2007 SC 906.

 17. On the facts of the present case, it is no doubt true that during the
course of arbitration if the official of the respondent is involved in biased
attitude, the same can always be a ground to set aside the award passed by the
Arbitral Tribunal. On the other hand, law is well settled that Section 9 of the
Act can be invoked either before or during or after the arbitration proceedings,
of course before the award is enforced, as it was held by the Supreme Court in
Firm Ashok Traders and another v. Gurumukh Das Saluja and others, [2004] 3 SCC
155= [2004] 2 CTC 208.

 18. Likewise, the judgment relied upon by the learned counsel for the
respondent in Rashtriya Ispat Nigam Limited v. Verma Transport Co., AIR 2006 SC
2800 relates to a decision under Section 8 of the Act in relation to the power
to refer the parties to the arbitration where there is an arbitration agreement.

 19. The judgment relied upon by the learned counsel for the respondent relating
to the departmental enquiries and bias on the part of the employer as held in
State of Uttar Pradesh v. Sheo Shanker Lal Srivastava, [2006] 3 SCC 276 again
has no application in respect of contractual matters governed by the Arbitration
and Conciliation Act.

 20. Under Section 21 of the Act, the arbitration proceeding commences on the
date of request for dispute to be referred to arbitration. Section 21 of the Act
is as under:

21. Commencement of arbitral proceedings. Unless otherwise agreed by the
parties, the arbitral proceedings in respect of a particular dispute commence on
the date on which a request for that dispute to be referred to arbitration is
received by the respondent."

On the facts of the present case, when the respondent intends to refer the
dispute to arbitrator as per the provisions of the agreement, the applicant
disputes the appointment of arbitrator of the respondent/Corporation on the
basis of bias, taking a specific stand that the officer of the
respondent/Corporation himself found the breach of conditions and therefore, he
himself cannot sit as an arbitrator to decide the issue, as that would be
opposed to the principles of natural justice and public policy, especially when
it is made clear, as submitted by the learned Senior Counsel for the applicant,
that the applicant is taking steps for the purpose of appointment of an
arbitrator as per the Act.

 21. It is relevant to refer at this stage, the judgment of the Supreme Court in
Sundaram Finance Limited v. NEPC India Limited, [1999] 2 SCC 479, relied upon by
the learned counsel for the respondent. The Supreme Court has held that when a
person applies to a Court under Section 9 of the Act it implies that there is a
final and binding arbitration agreement in existence. It was also held in that
case that even before a notice as contemplated under Section 21 of the Act is
given for the purpose of commencement of arbitration, the jurisdiction of this
Court under Section 9 of the Act can be invoked and the Court has got power to
deal with an application even when no notice has been issued under Section 21 of
the Act on satisfaction of the manifest intention of the parties to have a
binding effect of the arbitration agreement. The operative portion of the said
judgment is as follows: "19. When a party applies under Section 9 of the 1996
Act, it is implicit that it accepts that there is a final and binding
arbitration agreement in existence. It is also implicit that a dispute must have
arisen which is referable to the Arbitral Tribunal. Section 9 further
contemplates arbitration proceedings taking place between the parties.
Mr.Subramanium is, therefore, right in submitting that when an application under
Section 9 is filed before the commencement of the arbitral proceedings, there
has to be manifest intention on the part of the applicant to take recourse to
the arbitral proceedings if, at the time when the application under Section 9 is
filed, the proceedings have not commenced under Section 21 of the 1996 Act. In
order to give full effect to the words before or during arbitral proceedings
occurring in Section 9, it would not be necessary that a notice invoking the
arbitration clause must be issued to the opposite party before an application
under Section 9 can be filed. The issuance of a notice may, in a given case, be
sufficient to establish the manifest intention to have the dispute referred to
an Arbitral Tribunal. But a situation may so demand that a party may choose to
apply under Section 9 for an interim measure even before issuing a notice
contemplated by Section 21 of the said Act. If an application is so made, the
court will first have to be satisfied that there exists a valid arbitration
agreement and the applicant intends to take the dispute to arbitration. Once it
is so satisfied, the court will have the jurisdiction to pass orders under
Section 9 giving such interim protection as the facts and circumstances warrant.
While passing such an order and in order to ensure that effective steps are
taken to commence the arbitral proceedings, the court while exercising
jurisdiction under Section 9 can pass a conditional order to put the applicant
to such terms as it may deem fit with a view to see that effective steps are
taken by the applicant for commencing the arbitral proceedings. What is
apparent, however, is that the court is not debarred from dealing with an
application under Section 9 merely because no notice has been issued under
Section 21 of the 1996 Act.

 22. At this stage, it is relevant to point out that at the time of admission of
this application, the learned counsel for the respondent has given an
undertaking that the respondent would not pass any order till the disposal of
this application.

 23. Taking note of the entire aspect of the case, especially in the
circumstances that a decision has been arrived at by the official of the
respondent about the breach of contract stated to have been committed by the
applicant and another official of the respondent is about to decide the
correctness or otherwise of such allegation, I am of the view that, in the
interest of justice, an interim measure of protection is to be provided to the
applicant by giving a limited relief of injunction and the applicant may be
directed to work out its remedy available under the provisions of the Act for
appointment of arbitrator within a stipulated time.  In view of the aforesaid
discussions, this application stands disposed of by granting an order of
injunction against the respondent from proceeding with the show cause notice
issued by the respondent dated 23.6.2009 for a period of eight weeks, making it
clear that within the said period if the applicant does not get necessary
relief, the order of injunction shall automatically stand vacated on the lapse
of the period stipulated herein.        sasi