Nicco Corp.Ltd vs Prysmian Cavie Sistemi Energia ...

NICCO CORP.LTD. Appellant

VERSUS

PRYSMIAN CAVIE SISTEMI ENERGIA S.R.L & ANR. Respondents

O R D E R

Leave granted.

This appeal is directed

against the order dated 29th July, 2009 of the

Division Bench of the Calcutta High Court

whereby it vacated the interim order passed by

the learned Single Judge in G.A. No.678 of

2009 in C.S. No.69 of 2009.

We have heard learned Senior

Counsel appearing for the parties at length

and perused the records. We find even though

the Division Bench did notice the plea of

respondent no.1 that the Frame Agreement has

1 been superseded or novated on 8th October, 2008

and such agreement of novation has again been

superseded on 4th December, 2008, and as such

there is no arbitration agreement subsisting

between the parties, but without deciding

whether said plea is tenable, vacated the

ad interim injunction granted by the learned

Single Judge apparently because it was of the

view that in such matter the Court does not

have jurisdiction to stand in the way of any

arbitration proceeding held outside India.

The Division Bench then directed the parties

to file affidavits and requested the learned

Single Judge to decide the injunction

application at the earliest.

In our view, the Division

Bench should have examined the entire issue in

the light of the pleadings of the parties and

documents produced by them and then decide

whether the ad interim order passed by the

2 learned Single Judge deserves to be continued

or vacated.

We are further of the view

that ends of justice will be met and the

litigation will be shortened if the Division

Bench is requested to decide the injunction

application filed by the appellant in its

entirety in the light of the pleadings and

documents of the parties.

In the result, the appeal is

allowed, the impugned order is set aside.

Respondent no.1 is directed to file reply to

the injunction application along with

documents within a period of two weeks from

today. Further affidavit and documents on

behalf of the appellant herein may be filed

within the next two weeks. The Division Bench

of the High Court is requested to dispose of

the injunction application itself within eight

3 weeks thereafter without being influenced by

the observations, if any, made in the impugned

order.

The interim order, which was

granted by this Court while issuing notice,

shall continue for a further period of three

months or till the disposal of the injunction

application by the Division Bench of the High

Court, whichever is earlier. We make it clear

that it would be open for the parties to move

this Court for an appropriate order in the

event the injunction application is not

decided within the time specified by us herein

above.

.......................J. (TARUN CHATTERJEE)

.......................J.

4 (G.S. SINGHVI)

.......................J. NEW DELHI (DR. B.S. CHAUHAN) OCTOBER 29, 2009

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