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Section 9 in The Arbitration And Conciliation Act, 1996
Section 21 in The Arbitration And Conciliation Act, 1996
The Arbitration And Conciliation Act, 1996
The Indian Contract Act, 1872
State Of Karnataka Etc vs Shri Rameshwara Rice Mills ... on 24 February, 1987

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Madras High Court
Order vs Unknown on 28 August, 2009

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