Sujoy Paul, J. - This appeal filed under section 37 of Arbitration and Conciliation Act, 1996 (for short �Act'') raises an interesting legal
question. The question is whether the word ""a party"" used in section 9 of the Act includes legal representative or not ? Ancillary question is whether
appellant''s application under section 9 of the Act was maintainable ?
2. Draped in brevity, the relevant facts are that an agreement to sell was executed between present appellant and Shri Rajesh Deshwali on 18-5-
2007. The agreement contains certain terms and conditions. Clause 12 of the agreement contains an arbitration clause pursuant to which in the
event of any dispute between the parties, the dispute needs to be referred to sole Arbitrator Shri Ashraf Ali, Advocate.
3. The case of appellant is that Shri Rajesh Deshwali failed to perform his part of contractual obligation within the stipulated time and; therefore,
appellant filed arbitration application before sole Arbitrator on 30-9-2010 Annexure A/3. After filing said arbitration application, petitioner
received the information that Shri Rajesh Deshwali has died. Thus, an application was preferred by appellant before the Arbitrator for taking legal
representatives of said Shri Rajesh Deshwali on record.
4. The appellant filed an application under section 9 of the Act before the Court below. In the said application, the legal representatives of Shri
Rajesh Deshwali were impleaded as non-applicants. It was prayed that non-applicant No. 1 or any other person may be appointed as a guardian
for the purpose of arbitral proceedings.
5. The respondents, upon receiving notices of aforesaid application filed under section 9 of the Act, preferred application under Order 7. Rule 11,
Civil Procedure Code dated 8-2-2013. It is averred that as per section 9 of the Act and as per the definition of ""party"" under the Act, the
application against legal representatives is not maintainable. Since non-applicants are not ""party"" as per the Act, the applicant is not entitled to
maintain his application under section 9 of the Act.
6. The Court below after hearing both the parties on the said application, passed the impugned order dated 21-3-2013 and held that application
filed under section 9 of the Act is not maintainable.
7. This order is called in question by appellant by contending that the said finding given by Court below runs contrary to object and scheme of the
Act. In proceedings under section 9 of the Act, the application/objection under Order 7, Rule 11 , Civil Procedure Code is not maintainable. Shri
Dhruv Verma, learned counsel for the appellant contended that the Court below has taken a hyper technical view which is liable to be
disapproved.
8. Shri Aditya Adhikari, learned senior counsel, per contra, relied on the definition of ""party"" and ""legal representative"". He submits that a
combined reading of section 2(1)(g), (h) and section 9 of the Act makes it clear that section 9 application is maintainable by or against a party.
Legal Representative, by not stretch of imagination, can be held to be a �party''. The parties confined their arguments to the extent indicated here
in above.
9. Before dealing with the rival contentions advanced, it is apt to quote the relevant provisions which read as under :
2(1)(g) ""legal representative"" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles
with the estate of the deceased, and, where a party acts in a representative character, the person on whom the estate devolves on the death of the
party so acting;
(h) ""party"" means a party to an arbitration agreement.
9. Interim measures, etc. by Court. - (1) A parts may, before or during arbitral proceedings or at any time after the making of the arbitral award
but before it is enforced in accordance with section 36, apply to a Court:-
9-A. A plain reading of section 9 makes it clear that the word ""party"" is used in relation to a person who ""apply to a Court"" for certain directions
enumerated in the section. Admittedly, the present appellant is a party to the arbitration agreement who applied for getting certain interim
measures/directions. The present appellant even as per strict interpretation, falls within the definition of ""party"" as per section 2(h). Section 9 does
not deal with the aspect whether other side/non-applicant should also be a party to the arbitration agreement. On this score itself, the order of
Court below cannot sustain judicial scrutiny.
10. The matter can be examined from another angle. The basic purpose of bringing the Act is to provide an alternative dispute resolution
mechanism. Section 40 of the Act reads as under :
40. Arbitration agreement not to be discharged by death of party thereto. - (1) An arbitration agreement shall not be discharged by the death of
any party thereto either as respects the deceased or as respects any other party, but shall in such event be enforceable by or against the legal
representative of the deceased.
(2) The mandate of an arbitrator shall not be terminated by the death of any party by whom he was appointed.
(emphasis supplied)
Section 40 is inserted in the Statute Book to ensure that arbitration agreement is not vanished in thin air because of death of party to the agreement.
Thus intention of law makers is to ensure that arbitration agreement and proceedings based thereupon are not frustrated on death of a party. Thus,
the word �party'' in section 9 must receive liberal construction. It has to be read with the aim, object and scheme of the Act. This is trite law that
judicial key to construction is the composite perception of the deha and dehi of the provision. The text and context both must be seen while
interpreting a provision [See: (1977) 2 SCC 256, The Chairman, Board of Mining Examination and Chief Inspector of Mines and
another v. Ramjee], The interpretation given by the Court below runs contrary to the scheme of the Act and such narrow interpretation cannot
be upheld. I also find force in the argument of Shri Dhruv Verma that application under Order 7, Rule 11 , Civil Procedure Code was not
maintainable in a proceeding under section 9 of the Act. The proceedings under section 9 of the Act cannot be equated with plaint or a suit. I am in
respectful agreement with the view taken by the Karnataka High Court in ILR 2002 Karnataka 1476, Valliappa Software v. C. Sundaram
and others.
11. In the nutshell, the Court below has clearly erred in entertaining the application under Order 7, Rule 11 , Civil Procedure Code and rejecting
the application of the appellant preferred under section 9 of the Act. Resultantly, the order dated 21-3-2013 is set aside. The application preferred
by non-applicants under Order 7, Rule 11 is rejected. The matter is remitted back before the Court below to decide the application of appellant
preferred under section 9 of the Act in accordance with law.
12. Appeal is allowed. No cost.