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Report No. 76

10.3. Section 41.-

The subject of procedure and powers of the court is dealt with in section 41. Subject to the provisions of the Act and rules made thereunder,1 the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the court, and to all appeals under the Act. This is provided in clause (a); Clause (b) provides that subject to the provisions of the Act and all rules made thereunder, the court shall have, for the purpose of and in relation to arbitration proceedings, the same power of making orders in respect of any of the matters set out in the second schedule as it has for the purpose of, and in relation to, any proceedings before the court.

Under the proviso, however, this clause shall not be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters. It has been represented to the Law Commission2 that the power of the court under section 41 in the matter of grant of injunction in cases where the amount claimed by the Government to be due to it under a contract with a private party is still under adjudication, may be modified with a view to safeguarding the government interests. We have given the matter our consideration and are of the view that no amendment of the law in this respect is called for, and no exception need be carved out in section 41 for cases arising out of contracts to which the Government is a party.

The question of issue or non-issue of injunction depends upon the facts of each case and it is for the courts concerned to decide the matter in the light of those facts, keeping in view the general principles for the grant of injunctions which are fairly well-settled. The fact that the government is aggrieved by a particular order is no ground for amendment of the law. The existing provisions, in our opinion, are adequate to empower the courts to safeguard the interests of all parties, including the government, in appropriate cases.

The section therefore needs no change.

1. For the power to make rules, see section 44.

2. Papers forwarded by the Ministry of Law, Department of Legal Affairs.

Arbitration Act, 1940 Back

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