‘Law doesn’t permit anyone to both approbate and reprobate’
*Says a person who seeks equity must do equity
Mohinder Verma
JAMMU, Dec 5: In a landmark judgment, High Court of Jammu & Kashmir and Ladakh has held that final relief cannot be granted under Section 9 of the Arbitration and Conciliation Act, 1996 and law doesn’t permit a person to both approbate and reprobate.
The judgment was delivered by Justice Wasim Sadiq Nargal while dismissing a petition filed by M/s Doon Caterers Dehradun seeking directions to the respondents to maintain status quo with respect to the refreshment room at Shri Mata Vaishno Devi Katra Railway Station, restraining the respondents from levying/imposing and recovering undue license fee from the petitioner during the pendency of arbitral proceedings etc.
After hearing Senior Advocate Sunil Sethi with Advocate Navyug Sethi for the petitioner and Deputy Solicitor General of India (DSGI) Vishal Sharma in length, Justice Wasim Sadiq Nargal observed, “the petitioner through the medium of the present petition filed under Section 9 of the Arbitration and Conciliation Act, 1996, is seeking final relief with regard to the extension of the contract in spite of the fact that the petitioner has failed to pay the license fee which was agreed by the petitioner while seeking the extension of the license agreement which was extended initially for a period of 176 days with effect from 08.06.2022 in addition to 68 days— total of 244 days, which expired on 30.11.2022”.
“From the perusal of the record, it is apparent that while extending the period of the contract, the petitioner was time and again reminded to deposit the license fee along with GST amount for the extended period well in time as per the executed contract agreement but the petitioner failed to deposit the license fee and instead has approached this court through the medium of the present petition”, High Court said.
Justice Nargal observed, “it is settled preposition of law that the proceedings of Section 9 of the Act is by way of an interim measure and are not meant for enforcement of the conditions of the contract as it would be done only when the rights of the parties are finally adjudged or crystallized by the arbitrator”, adding “Section 9 proceedings which are for interim measures cannot be converted into the proceedings where a party may seek indirectly a final relief but nature of the conditions incorporated in the terms and conditions of the agreement, its scope and merit in-law and its applicability, are all questions to be examined by the arbitrator in accordance with law”.
“The petitioner by no stretch of imagination can seek the main relief of extension of the agreement by seeking waiver of the license fee by way of interim measure by resorting to the petition under Section 9 of the Act, which falls within the ambit of the final relief and can be adjudicated finally by the arbitrator or by the court in appropriate proceedings”, Justice Nargal said.
Stating that the petitioner by way of camouflage has come to the court by invoking the powers under Section 9 of the Act for seeking final relief, Justice Nargal said, “this court while exercising the powers under Section 9 of the Act cannot pass an interim order by directing specific performance of the contract, the breach of which is alleged by the respondents, as the petitioner has failed to pay the license fee in spite of various reminders from time to time”.
“The interim relief under Section 9 of the Act can in no way be granted for specific purpose of the contract. Thus, it is amply clear that even by way of grant of interim injunction, the court cannot restore an agreement which already stands terminated due to failure on the part of the petitioner to pay the license fee as agreed mutually while seeking extension”, High Court said, adding “it goes without saying that a person who seeks equity must do equity. He must also come to the court with clean hands. The petitioner in present case is a defaulter and has failed to pay license fee in terms of the agreement and has no right to seek injunction against the respondents being a defaulter”.
Applying the doctrine of “approbate and reprobate”, Justice Nargal said, “no party can be allowed to accept and reject the same thing and, thus, one cannot blow hot and cold”, adding the petitioner has admittedly accepted the extension of the agreement which was subject to the payment of license fee and after having accepted the agreement the petitioner by no stretch of imagination can accept one part of the agreement which is favourable to him while rejecting the other.
“It is settled proposition of law that once an agreement has been accepted by the other party who has derived the benefit out of the same, subsequently, cannot challenge it on any ground whatsoever. Law does not permit a person to both approbate and reprobate”, High Court said, adding “Section 9 of the Act is not the remedy to seek extension of the contract which is the final relief and is arbitrable”.
With these observations, High Court dismissed the petition on the ground that petitioner through the medium of the petition was seeking final relief by way of an interim measure, which is not permissible under law.
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