Archana Dangayach v. Charan Singh Khangarot

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Appeal No. 478/2020 1. Nawal Kishore Dangayach, S/o. Jugal KishoreDangayach, Aged About 47 Years, By Caste Khandelwal,Resident Of A-34-A, Ram Nagar, Shastri Nagar, Jaipur(Raj.)Dangayach, Aged About 47 Years, By Caste Khandelwal,Resident Of A-34-A, Ram Nagar, Shastri Nagar, Jaipur(Raj.) 2. Archana Dangayach W/o Shri Nawal Kishore Dangayach,Aged About 46 Years, By Caste Khandelwal, Resident OfA-34-A, Ram Nagar, Shastri Nagar, Jaipur (Raj.)Aged About 46 Years, By Caste Khandelwal, Resident OfA-34-A, Ram Nagar, Shastri Nagar, Jaipur (Raj.) ----Appellants Versus 1. Govind Kripa Build Heights LLP, a Limited LiabilityPartnership Duly Registered Under Llp Act Having ItsRegistered Office At The Crest , Suit No.9, Plot No.a-4,Airport Enclave Scheme, Tonk Road, Jaipur-302018Through Its Designated Partner Charan Singh KhangarotS/o. Mukut Singh KhangarotPartnership Duly Registered Under Llp Act Having ItsRegistered Office At The Crest , Suit No.9, Plot No.a-4,Airport Enclave Scheme, Tonk Road, Jaipur-302018Through Its Designated Partner Charan Singh KhangarotS/o. Mukut Singh Khangarot 2. Charan Singh Khangarot S/o Mukut Singh Khangarot,Aged About 40 Years, Resident Of M-28, Income TaxColony, Tonk Road, Jaipur-302018Aged About 40 Years, Resident Of M-28, Income TaxColony, Tonk Road, Jaipur-302018 3. Narendra Singh Laxman Singh Rathore S/o Shri LaxmanSingh Rawat Singh Rathore, Aged About 46 Years,Resident Of Plot No.6, Gomes Defence Colony, Jaipur(Raj.)Singh Rawat Singh Rathore, Aged About 46 Years,Resident Of Plot No.6, Gomes Defence Colony, Jaipur(Raj.) 4. Vinod Kanwar W/o Shri Bhupendra Singh Rathore, AgedAbout 34 Years, Resident Of 101/28, Patel Marg,Mansarovar, Jaipur (Raj.)-302020About 34 Years, Resident Of 101/28, Patel Marg,Mansarovar, Jaipur (Raj.)-302020 5. Bhupendra Singh Rathore S/o Shri Jagmohan SinghRathore, Resident Of 101/28, Patel Marg, Mansarovar,Jaipur (Raj.)-302020Rathore, Resident Of 101/28, Patel Marg, Mansarovar,Jaipur (Raj.)-302020 6. Ahsok Goyal S/o Shri Manna Lalgoyal, Aged About 48Years, Resident Of 1-554, Opposite Dwarka Sweets,Sector-1, Vidhydhar Nagar, Jaipur (Raj.)-302039Years, Resident Of 1-554, Opposite Dwarka Sweets,Sector-1, Vidhydhar Nagar, Jaipur (Raj.)-302039 7. Savita Goyal W/o Shri Ashok Goyal, Aged About 47Years, Resident Of 1-554, Opposite Dwarka Sweets,Sector-1, Vidhydhar Nagar, Jaipur (Raj.)-302039Years, Resident Of 1-554, Opposite Dwarka Sweets,Sector-1, Vidhydhar Nagar, Jaipur (Raj.)-302039 8. Shikha Meel W/o. Shri Amit Barala, Aged About 34Years, Resident Of D-15, Indira Nagar, Subhash Marg,Years, Resident Of D-15, Indira Nagar, Subhash Marg, Jhunjhunu (Raj.)-333001 9. Shrishti Chodhary W/o. Shri Hanuman Sahai Barala,Aged About 35 Years, Resident Of Ward No.17, BaralaHouse, Kacholia Road, Chomu, Jaipur (Raj.)-303802Aged About 35 Years, Resident Of Ward No.17, BaralaHouse, Kacholia Road, Chomu, Jaipur (Raj.)-303802 10. Ruchi Agarwal W/o. Shri Pankaj Gupta, Aged About 32Years, Resident Of Ie-35, Subhash Colony, ShastriNagar, Jaipur (Raj.)-302016Years, Resident Of Ie-35, Subhash Colony, ShastriNagar, Jaipur (Raj.)-302016 11. Pankaj Gupta S/o. Shri Sitaram Gupta, Aged About 30Years, Resident Of Ie-35, Subhash Colony, ShastriNagar, Jaipur (Raj.)-302016Years, Resident Of Ie-35, Subhash Colony, ShastriNagar, Jaipur (Raj.)-302016 12. Mukesh Ramawat W/o. Shri Babudas Ramawat, AgedAbout 27 Years, Resident Of 160 Officers Campus, JanakMarg, Khatipura, Jaipur.About 27 Years, Resident Of 160 Officers Campus, JanakMarg, Khatipura, Jaipur. 13. Ajeet Chhajer S/o. Shri Amar Singh Chhajer, AgedAbout 40 Years, Resident Of S-2, Satluj Apartment,Sector-2 Vidhyadhar Nagar, Jaipur (Raj.)-302039About 40 Years, Resident Of S-2, Satluj Apartment,Sector-2 Vidhyadhar Nagar, Jaipur (Raj.)-302039 11. Pankaj Gupta S/o. Shri Sitaram Gupta, Aged About 30Years, Resident Of Ie-35, Subhash Colony, ShastriNagar, Jaipur (Raj.)-302016Years, Resident Of Ie-35, Subhash Colony, ShastriNagar, Jaipur (Raj.)-302016 12. Mukesh Ramawat W/o. Shri Babudas Ramawat, AgedAbout 27 Years, Resident Of 160 Officers Campus, JanakMarg, Khatipura, Jaipur.About 27 Years, Resident Of 160 Officers Campus, JanakMarg, Khatipura, Jaipur. 13. Ajeet Chhajer S/o. Shri Amar Singh Chhajer, AgedAbout 40 Years, Resident Of S-2, Satluj Apartment,Sector-2 Vidhyadhar Nagar, Jaipur (Raj.)-302039About 40 Years, Resident Of S-2, Satluj Apartment,Sector-2 Vidhyadhar Nagar, Jaipur (Raj.)-302039 14. Deep Shikha Chhajer S/o. Shri Ajeet Chhajer, AgedAbout 38 Years, Resident Of S-2, Satluj Apartment,Sector-2 Vidhyadhar Nagar, Jaipur (Raj.)-302039About 38 Years, Resident Of S-2, Satluj Apartment,Sector-2 Vidhyadhar Nagar, Jaipur (Raj.)-302039 15. Amit Kumar Kandoi S/o. Shri Basant Kumar Kandoi,Aged About 34 Years, Resident Of Ward No.32, ChandakStreet, Aathuna Bazar, Sardar Sahar, Churu (Raj.)-302039Aged About 34 Years, Resident Of Ward No.32, ChandakStreet, Aathuna Bazar, Sardar Sahar, Churu (Raj.)-302039 16. Jyoti Kandoi W/o. Shri Anit Kumar Kandoi, Aged About32 Years, Resident Of Ward No.32, Chandak Street,Aathuna Bazar, Sardar Sahar, Churu (Raj.)-30203932 Years, Resident Of Ward No.32, Chandak Street,Aathuna Bazar, Sardar Sahar, Churu (Raj.)-302039 17. Atul Ram Swaroop Chotia S/o. Shri RamswaroopSohanlal Chotia, Aged About 34 Years, Resident Of C-203, Prathishtha Apartment, Opposite Nirma VidhyaVihar School, Bodakdev, Ahemdabad, Gujrat 380054Sohanlal Chotia, Aged About 34 Years, Resident Of C-203, Prathishtha Apartment, Opposite Nirma VidhyaVihar School, Bodakdev, Ahemdabad, Gujrat 380054 18. Nikita Chotia S/o. Shri Atul Ram Swaroop Chotia, AgedAbout 33 Years, Resident Of C-203, PrathishthaApartment, Opposite Nirma Vidhya Vihar School,Bodakdev, Ahmedabad, Gujrat 380054.About 33 Years, Resident Of C-203, PrathishthaApartment, Opposite Nirma Vidhya Vihar School,Bodakdev, Ahmedabad, Gujrat 380054. ----Respondents For Appellant(s) For Respondent(s) : Mr. S.S. Hora : Mr. R.K. Agarwal, Sr. Adv. With Mr. Mamoon Khalid Mr. Pradeep Kumar for resp.1 to 5 HON'BLE MR. JUSTICE ABHAY CHATURVEDIJudgment 31/08/2020 Notice upon respondent No. 6, 7,10, 11, 12 and 14 areunserved. Notice upon respondent No. 1 to 5 and 13 has beenserved and notice of respondent No. 8, 9 and 15 to 18 areawaited. Counsel for both the parties have requested and urged thatthe instant civil misc. appeal contains sharp urgency therefore,the same may kindly be heard and adjudicated today. In view of the above, the matter has been heard finally. This Civil Misc. Appeal has been filed by the appellant-plaintiffs feeling aggrieved against the order of the learned TrialCourt dated 10.01.2020 whereby the learned Trial Court rejectedthe prayer for ad-interim injunction of status quo of the disputedproperty. Succinctly, brief facts giving rise to this appeal are that theplaintiff-appellants filed a civil suit for a specific performance ofthe contract before the Commercial Court with the avermentsthat Limited Liability Partnership (for short “LLP”) comprising ofplaintiff Nos. 1 & 2 purchased land in auction and a new LLPcame into existence, wherein, the plaintiff No.2 retired anddefendant No.2 became a partner in LLP to the extent of profitof 25%. Thereafter, on 21.03.2017, the defendant Nos.2 & 3took over the complete LLP. The plaintiff No.1 retired anddefendant No.3 join in partner and another amended LLPagreement was executed showing only defendant Nos.2 & 3 are Succinctly, brief facts giving rise to this appeal are that theplaintiff-appellants filed a civil suit for a specific performance ofthe contract before the Commercial Court with the avermentsthat Limited Liability Partnership (for short “LLP”) comprising ofplaintiff Nos. 1 & 2 purchased land in auction and a new LLPcame into existence, wherein, the plaintiff No.2 retired anddefendant No.2 became a partner in LLP to the extent of profitof 25%. Thereafter, on 21.03.2017, the defendant Nos.2 & 3took over the complete LLP. The plaintiff No.1 retired anddefendant No.3 join in partner and another amended LLPagreement was executed showing only defendant Nos.2 & 3 are partners. It was agreed in clause 7 (VI & VII) that the balancesheet was prepared for the period, prior to the retirement of theoutgoing partner and an amount of Rs.18,94,44,262.43/- wasoutstanding which was payable to the outgoing partner alongwith interest @ 18% per annum. It is further submitted that plaintiff was offered allotmentof flats in the building being constructed by LLP in lieu ofRs.18,94,44,262.43/- lying in the firm and LLP executed 17 flatsfully paid up agreement to sale in favour of the plaintiffs.Thereafter, the defendant Nos.1 & 3 approached the plaintiffs tocancel four agreements to sale and Rs.5,40,00,000/- was paidagainst cancellation of four flats. Remaining 13 flats whoseagreement to sale were executed with fully paid upconsideration against Rs.13,54,44,262.43/- remained operativein favour of the plaintiff. It is further case of the plaintiffs that the defendant Nos.1to 3 entered into agreement to sale 13 flats in favour of thedefendant Nos.4 to 18. The plaintiffs, on coming to know thatflats sold to the plaintiffs, have been dishonestly andfraudulently sold to other defendants vide subsequentagreement to sale, and they filed civil suit before theCommercial Court along with application for temporaryinjunction. The plaintiffs also got the FIR No.258/2019 for theoffences under Sections 420, 406 & 120B of IPC, registered atPolice Station, Vidhyadhar Nagar, Jaipur. The Commercial Courtreturned the plaint under the provision of order VII Rule 10 ofCPC vide order dated 21.12.2019 to file the same in theCompetent Court. Civil Suit returned by the Commercial Courtwas presented before the District Court and the same was transferred to Additional District Judge, No.15 and notices wereissued to defendants. After service upon defendants, the prayerfor ad-interim stay was prayed for, which was rejected by theCourt vide order dated 10.01.2020, observing that no proof ofpayment of consideration exists, so, no prima facie case wasmade out in favour of the appellants. Hence, the appeal has been filed challenging the orderdated 10.01.2020. Heard learned counsel for the parties. Learned counsel for the plaintiffs submits that theimpugned order passed by the Court below is erroneous,perverse and against the material available on record in asmuchas, the Court held that the amount for consideration underagreement was paid to the respondent-defendants, is not borneout from the evidence placed on record. Counsel further submitsthat the agreement to sale was fully paid up asRs.18,94,44,262.43/- was lying with the defendant No.1 beingoutstanding amount, which was to be paid to plaintiffs alongwith interest @ 18% per annum and in lieu of payment ofoutstanding amount, defendant Nos.1 to 3 executed theagreement to sale in favour of the plaintiffs. Heard learned counsel for the parties. Learned counsel for the plaintiffs submits that theimpugned order passed by the Court below is erroneous,perverse and against the material available on record in asmuchas, the Court held that the amount for consideration underagreement was paid to the respondent-defendants, is not borneout from the evidence placed on record. Counsel further submitsthat the agreement to sale was fully paid up asRs.18,94,44,262.43/- was lying with the defendant No.1 beingoutstanding amount, which was to be paid to plaintiffs alongwith interest @ 18% per annum and in lieu of payment ofoutstanding amount, defendant Nos.1 to 3 executed theagreement to sale in favour of the plaintiffs. Counsel further submitted that in a suit, like a suit forspecific performance of the contract, the Court protects thestatus quo existing on the date of suit and should not permit thenature of the property being changed which also includesalienation or transfer of property which may lead to loss ordamage being caused to the party, who may ultimately succeedand may further lead to multiplicity of proceedings. In support ofhis contention, he relied upon the following judgments:- 1.Maharwal Khewaji Trust (Regd.) V/s. Baldev Dass (2004) 8 SCC 488. 2.N. Srinivasa V/s. Kuttukaran Machine Tools Limited (2009) 5 SCC 182. 3.Harish Chander Verma V/s. Kayastha Pathshala Trust 1988 (1) JT 625. Per-contra, the learned counsel for the respondent-defendant Nos. 2 & 3, has vehemently opposed the contentionsmade by counsel for the appellant-plaintiffs and further raisedmainly two objections; firstly, the appeal against refusal of ad-interim injunction order is not maintainable and secondly,regarding maintainability of the suit as there is an “ArbitrationClause” in the agreement itself sought to be enforced by theplaintiffs. Counsel for the respondent-defendants drew attention ofthe Court towards the provisions of Section 5 & 8 of theArbitration and Conciliation Act, 1996 (hereinafter referred to as“Arbitration Act”) which provides a Bar for intervention by theJudicial Authority in case the agreement containing the“Arbitration Clause”. Counsel further submits that admittedlythere is an Arbitration Clause in the agreement sought to beenforced by the plaintiffs, therefore, the defendants in its reply,has raised the objections that the suit is not maintainable underthe provisions of Section 5 of the Arbitration Act. It is furthersubmitted that when there is a Bar of civil suit before the CivilCourt then the prayer of status quo cannot be allowed by theCivil Court. In support of his contentions, he relied uponfollowing judgments of the Supreme Court in case of RamdhaniVs. Rajaram:AIR 2011 Allahabad 121, Sawai Singh Bhati Vs. Manak Singh:2018 2 SCC 820 (Raj.) and Shiv KumarChaddha Vs. Municipal Corporation Delhi: (1993) 3 SCC161. Controverting the arguments and objections raised bylearned counsel for the respondent-defendants, counsel for theappellant-plaintiffs urged that the civil suit is between plaintiffsand 18 defendants. Defendant Nos. 4 to 18 are not parties tothe agreement so they are not bound by the Arbitration Clausenor Arbitrator can pass Arbitration award against them. It wasalso urged that defendant Nos.4 to 18 being parties underagreement to sell are not assignees of defendant No.1, asentered into agreement to sell on principle to principle basis.Those who have got sale deed in their favour, are taking adefence that they are transferees for value in good faith withoutnotice of earlier agreement and such they are not claimingunder title of defendant No.1. Controverting the arguments and objections raised bylearned counsel for the respondent-defendants, counsel for theappellant-plaintiffs urged that the civil suit is between plaintiffsand 18 defendants. Defendant Nos. 4 to 18 are not parties tothe agreement so they are not bound by the Arbitration Clausenor Arbitrator can pass Arbitration award against them. It wasalso urged that defendant Nos.4 to 18 being parties underagreement to sell are not assignees of defendant No.1, asentered into agreement to sell on principle to principle basis.Those who have got sale deed in their favour, are taking adefence that they are transferees for value in good faith withoutnotice of earlier agreement and such they are not claimingunder title of defendant No.1. It is further urged that the defendant Nos. 4 to 18 arenecessary or at least proper parties to the suit without which fullrelief cannot be granted to plaintiffs. It was further urged thatthe impugned order of the Trial Court shows that no such pointwas raised and having filed the reply on merits, even underSection 8 of the Arbitration Act, the defendants are precludedfrom raising such an argument. It is further submitted that it isan admitted position that no application under Section 8 of theArbitration Act has ever been filed before the Court below,therefore agreement based on Section 8 of the Arbitration Act isafter througing it and is not acceptable. In support of hiscontention, he relied upon the judgments of Hon’ble SupremeCourt in the case of Indowind Energy Ltd. Vs. Wescare (I) Ltd. & Ors. (2010) 5 SCC 306, S.N. Prasad Vs. MonnetFinance Ltd. & Ors. (2011) 1 SCC 320 and Thomson Press(India) Ltd. Vs. Nanak Builders and Investors P. Ltd. &Ors., (2013) 5 SCC 397. I have given my thoughtful consideration to the argumentsadvanced at the Bar and has gone through the material placedon record as well as case law cited. Before proceeding further on merits of the case, it would be appropriate to deal with the objections raised by the counselfor the respondent-defendants regarding maintainability of theappeal. A perusal of the order dated 10.01.2020 passed by thelearned Court below goes to show that the Trial Court declinedthe prayer of ad-interim stay, after observing that there is noevidence, prima facie, to prove that the respondents receivedthe amount of consideration shown in the buyer’s agreement(Annexure-6 to 18) and therefore, it is clear that the Courtbelow before rejecting the prayer of the plaintiff-appellants,gone into the merits of the case and after observing that theconsideration amount was not proved to be made by theappellants to respondent-defendants, therefore, no prima faciecase was found in favour of the appellant-plaintiffs. In case of Akmal Ali & Ors., etc Vs. State of Assam and Ors. AIR 1984 Gau 86, the Full Bench of the Guwahati High Court, observed as under:-We hold that an order made under Order 39Rules, 1, 2 and 4 refusing to grant an ex-parteorder of ad-interim injunction is appealablebecause Order 43 Rule, 1(r) enables a party toprefer an appeal against “an Order”, positive ornegative, passed under Rules, 1, 2, 2-A & 4 ofWe hold that an order made under Order 39Rules, 1, 2 and 4 refusing to grant an ex-parteorder of ad-interim injunction is appealablebecause Order 43 Rule, 1(r) enables a party toprefer an appeal against “an Order”, positive ornegative, passed under Rules, 1, 2, 2-A & 4 of Order 39. An order refusing an ad-interiminjunction is a negative order, but falls within theexpressions “an order”. In the case ofJagdish Singh Vs. Amba Lal & Ors., reported in (2015) 3 RLW 2711 (Raj.), this Court held as under:- Order 39. An order refusing an ad-interiminjunction is a negative order, but falls within theexpressions “an order”. In the case ofJagdish Singh Vs. Amba Lal & Ors., reported in (2015) 3 RLW 2711 (Raj.), this Court held as under:- 6. Before examining the impugned order on merits,it is desirable to consider the preliminary objectionof the respondent-plaintiff regarding maintainabilityof the appeal against ex-parte interim injunctionorder. The legal position is no more res integrathat order granting or refusing temporaryinjunction under Order 39 Rule 1 & 2 CPC isappealable under Order 43 Rule 1(r) CPC. Abare perusal of the impugned order makes itabundantly clear that by the said order inemunctory relief has been granted ex-parte againstthe appellant-defendant. True it is that appellantwas well within his right to contest the matterbefore the learned trial Court against the grant oftemporary injunction but the proposition canvassedby the learned counsel for the respondent thatorder is not appealable is per-se not tenable. Anyorder of temporary injunction, may be ex-parte,granted by a civil Court under Order 39 Rule 1 & 2CPC, an aggrieved party has got right to availremedy of appeal under Order 43 Rule 1 (r) CPC.7. Hon'ble Supreme Court, in A. VenkatasubbiahNaidu v. S. Challappan & Ors., (AIR 2000 SC3032), while examining the scope of Order 43 Rule1 CPC, has held that appeal against ex-partetemporary injunction is maintainable. The Courtheld: "It cannot be contended that the power to passinterim ex-parte orders of injunction does notemanate from the said Rule. In fact, the said rule isthe repository of the power to grant orders oftemporary injunction with or without notice, interimor temporary, or till further orders or till thedisposal of the suit. Hence, any order passed inexercise of the aforesaid powers in Rule 1 would beappealable as indicated in Order 43, Rule 1 of theCode. The choice is for the party affected by theorder either to move the appellate Court or to approach the same Court which passed the exparte order for any relief." In the light of law laid down by the judgments of FullBench of the Guwahati High Court and the Rajasthan HighCourt, the impugned order is an order against which appeal ismaintainable, particularly when the Court below, beforerejecting the prayer for ad-interim injunction, has applied mindto the facts and evidence placed on record. As such, the lawrelied upon by the counsel for the respondent-defendants onthis point, is not applicable in the facts and circumstances ofthe case at hand. In view of the above, the objections raised by the counselfor the respondents-defendants regarding maintainability of theappeal liable to be rejected. Coming to the next objection raised by counsel for therespondent-defendants regarding arbitration clause inagreement sought to be enforced by the plaintiff-appellants inthe civil suit filed before Court below. A perusal of the agreement goes to show that Clause 29of the buyer’s agreement dated 17.04.2017 is as under:- “-Arbiration: 29. All or any dispute arising out of or touchingupon or in relation to the terms of this buyer’sAgreement/Provisional allotment letter or itstermination, including the interpretation andvalidity thereof and the respective rights andobligations of the parties shall be settled amicablyby mutual discussions between the parties, failingwhich the same shall be settled through arbitration.The proceedings shall be governed by theArbitration and Conciliation Act, 1996, or anystatutory amendments and modifications or re-enactment thereof for the time being in force. A sole arbitrator shall hold the arbitrationproceedings at the registered Office of thepromoter in the Jaipur and the award passed bythe Arbitrator shall be final and binding upon theparties.” Under Section 5 & 8 of the Arbitration and Conciliation sole arbitrator shall hold the arbitrationproceedings at the registered Office of thepromoter in the Jaipur and the award passed bythe Arbitrator shall be final and binding upon theparties.” Under Section 5 & 8 of the Arbitration and Conciliation Act, 1996, reads as under:- 5. Extent of judicial intervention- Notwithstanding anything contained in any other lawfor the time being in force, in matters governed bythis Part, no judicial authority shall intervene exceptwhere so provided in this Part. 8. Power to refer parties to arbitration wherethere is an arbitration agreement- (1)A judicial authority before which an action isbrought in a matter which is the subject of anarbitration agreement shall, if a party to thearbitration agreement or any person claiming throughor under him, so applies not later than the date ofsubmitting his first statement on the substance of thedispute, then, notwithstanding any judgment, decreeor order of the Supreme Court or any Court, refer theparties to arbitration unless it finds that prima facieno valid arbitration agreement exists. (2)The application referred to in sub-section (1)shall not be entertained unless it is accompanied bythe original arbitration agreement or a duly certifiedcopy thereof: Provided that where the original arbitrationagreement or a certified copy thereof is not availablewith the party applying for reference to arbitrationunder sub-section (1), and the said agreement orcertified copy is retained by the other party to thatagreement, then, the party so applying shall file suchapplication along with a copy of the arbitrationagreement and a petition praying the Court to callupon the other party to produce the originalarbitration agreement or its duty certified copy beforethat Court. (3)Notwithstanding that an application has beenmade under sub-section (1) and that the issue ispending before the judicial authority, an arbitrationmay be commenced or continued and an arbitralaward made. Respondent-Defendant Nos.1 & 2 filed reply to the stay application and in para No.10 has taken objections regarding maintainability of the suit on the ground of specific arbitrationagreement/clause in the agreement between the parties. A perusal of the Clause-29 of buyer’s agreement goes toshow that there was an agreement between the parties that alldisputes arising out of or in relation to the terms of the buyer’sagreement shall be settled amicably by mutual discussionsbetween the parties failing which, the same shall be settledthrough Arbitration. This Clause being part of the agreement isnot disputed. The provisions of Section 5 of the Arbitration Act,specifically Bars the intervention of Judicial Authority inmatters covered by Arbitration Agreement/Clause. Counsel for both the parties argued at length raisingrival contentions regarding applicability of Arbitration Clause inthe buyer’s agreement to the present matter as well as onmerits of the case, but a perusal of the impugned order dated10.01.2020 goes to show that the objection regardingArbitration Clause in the buyer’s agreement was notconsidered by the Court below. It is true that courts generally protects the subjectmatter in a suit for specific performance of the contract, butwhen agreement sought to be enforced itself contains theArbitration Clause and the suit was returned by theCommercial Court under the Provisions of Order 7 Rule 10 CPCfor presentation before the Competent Court, then the Courtshould apply its judicial mind on the maintainability of the suitbefore proceeding further on merits of the case. Since, theCourt below seized of the applications for temporaryinjunction, so it will be appropriate that the application for It is true that courts generally protects the subjectmatter in a suit for specific performance of the contract, butwhen agreement sought to be enforced itself contains theArbitration Clause and the suit was returned by theCommercial Court under the Provisions of Order 7 Rule 10 CPCfor presentation before the Competent Court, then the Courtshould apply its judicial mind on the maintainability of the suitbefore proceeding further on merits of the case. Since, theCourt below seized of the applications for temporaryinjunction, so it will be appropriate that the application for temporary injunction be decided by the Trial Court, afterconsidering all the objections including non-maintainability ofthe suit on the ground of Arbitration Clause in the agreementsought to be enforced by the appellants. Without there beingany findings by the Courts below, it will not be appropriate forthis Court to decide the objections raised by the respondent-defendants and then decide the matter on merits in light of thearguments advanced by the counsel for the parties. In thecase of Manglaram Vs. Rameshwar reported in 2020 (2) DNJ (Raj.) 423, this Court held that when the question ofjurisdiction of civil court was raised, the issue was required tobe decided first and thereafter the application for temporaryinjunction ought to have been adjudicated. In view of the above, the case is remanded back to thelearned Trial Court to decide the application for temporaryinjunction, after hearing learned counsel for both the parties.The parties are directed to remain present before the learnedTrial Court on 07.09.2020. In the facts and circumstances of the case and also forinterest of Justice, the Court deems it appropriate to orderthat, in case, disputed property is alienated by therespondents, a note regarding pendency of the present suitshall be made in the sale deed, till the disposal of applicationfor Temporary Injunction by the trial Court. The Trial Court is directed to decide the application fortemporary injunction within a period of 15 days’ after receiptof the order without being prejudiced by any observationsmade in this order. Office is directed to transmit the record to the Court below forthwith. The appeal stands disposed of in above terms and stayapplication also stands disposed of accordingly. (ABHAY CHATURVEDI),J TN/