TMI Blog2013 (2) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts emerge from the pleadings filed in ARBP No. 1321/12 are as under. By orders dated 24th February 2012 and 12th March 2012, this Court accorded sanction to the scheme of arrangement filed by Tata Capital Limited (TCL) and Tata Capital Financial Services Limited (TCFSL) by virtue of which, the securities and/or benefits, rights and obligations under any security arrangements, collaterals, agreements, instruments of whatsoever nature in connection with or pertaining to or relatable to the transferred financial services activity of TCL stood transferred to TCFSL. 2. On 13th April 2011, the petitioner sanctioned grant of working capital term loan facility in favour of respondent No. 1 for meeting the working capital requirement of the company of an amount of ₹ 100,00,00,000/- (100 crores) on the terms and conditions recorded therein. The respondents executed various documents in favour of the petitioner to secure the repayment of loan amount. By letter dated 5th April 2012, the petitioner communicated about the amended fixed rate of interest to the respondents. By letter dated 15th April 2011, the first respondent requested the petitioner to disburse the entire loan am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gust 2012 (received by petitioner's Advocate on 31st August 2012), informed the petitioner that they were in the process of a strategic transaction which shall significantly mitigate the present risk profile of the first respondent and any precipitative action at that stage, would be value destroyer for one and all. The petitioner was informed that the respondents were nearing a permanent resolution along with the prospective investor which shall give detailed presentation to the CEOs of all their key lenders within the next 15 days including the petitioners. The respondents informed that due to global recession and economic slowdown, the inflow of commercial advertisement revenue got hampered and the revenues fell drastically which was a temporary phenomena. The respondents alleged that temporary slack of business resulted in downgrading by CARE. The market share and the reputation of respondents' clients was still intact and the respondents' clients would strictly adhere to its commitments and assured the petitioner of its amounts as per the agreed terms. The respondents alleged that they had not defaulted to that extent which warranted for issuance of the subject not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition till next of hearing. The second respondent was directed to maintain status quo in respect of the investments in other entities reflected at page 98 of the petition and continued the ad interim order passed by this Court earlier. This Court also directed the respondents to comply with ad interim order earlier passed and to file affidavit disclosing the assets within two weeks from the date of the said order. The matter was adjourned to 21st November 2012 for hearing and final disposal. 9. The respondents have filed affidavit opposing the reliefs claimed by the petitioner however, without disclosing assets and properties owned by the respondents on oath though directed by this Court. FACTS OF ARBP No. 1095 OF 2012: 10. On 13th May 2011, the petitioner and the first respondent executed facility agreement by which the petitioner advanced a term loan facility to the tune of ₹ 25,00,00,000/- (25 crores) repayable with interest @ 12% per annum within the period of two years from the date of execution of the said agreement. On 13th May 2011, the first respondent executed Demand Promissory Note in favour of the petitioner guaranteeing the repayment of the loan insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner in both these matters and the securities in favour of the petitioner were inadequate and therefore, with a view to protect such huge claims, directed the respondents to maintain status quo in respect of investments in other entities as reflected in Net Worth Certificate at page No. 98 of ARBP No. 1321/12 and continued the ad interim order passed by this Court earlier. According to the petitioner, they have to recover ₹ 25,02,61,350/- with further interest @ 15% per annum on the said amount from 21st July 2012 till payment in this petition. 13. Mr. Gaurav Joshi, the learned counsel appearing for the respondents in ARBP No. 1321/12 submits that the petitioners in the said petition are seeking interim orders in respect to the immovable properties purportedly mortgaged in its favour by the respondents. It is submitted that enforcement of mortgage of immovable property is a claim which is not arbitrable in nature. It is submitted that petitioner cannot invoke arbitration agreement for enforcement of mortgage. The learned counsel placed reliance upon the provisions of Transfer of Property Act read with Order 34 of the Civil Procedure Code, 1908 relating to the procedure pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alid arbitration agreement and whether the dispute that is sought to be raised before it, is covered by the arbitration clause. It is difficult to contemplate that the judicial authority has also to act mechanically or has merely to see the original arbitration agreement produced before it, and mechanically refer the parties to an arbitration. Similarly, Section 9 enables a Court, obviously, as defined in the Act, when approached by a party before the commencement of an arbitral proceeding, to grant interim relief as contemplated by the Section. When a party seeks an interim relief asserting that there was a dispute liable to be arbitrated upon in terms of the Act, and the opposite party disputes the existence of an arbitration agreement as defined in the Act or raises a plea that the dispute involved was not covered by the arbitration clause, or that the Court which was approached had no jurisdiction to pass any order in terms of Section 9 of the Act, that Court has necessarily to decide whether it has jurisdiction, whether there is an arbitration agreement which is valid in law and whether the dispute sought to be raised is covered by that agreement. There is no indication in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erm 'arbitrability' has different meanings in different contexts. The three facets of arbitrability, relating to the jurisdiction of the arbitral tribunal, are as under: (i) whether the disputes are capable of adjudication and settlement by arbitration? That is, whether the disputes, having regard to their nature, could be resolved by a private forum chosen by the parties (the arbitral tribunal) or whether they would exclusively fall within the domain of public fora (courts). (ii) Whether the disputes are covered by the arbitration agreement? That is, whether the disputes are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the 'excepted matters' excluded from the purview of the arbitration agreement. (iii) Whether the parties have referred the disputes to arbitration? That is, whether the disputes fall under the scope of the submission to the arbitral tribunal, or whether they do not arise out of the statement of claim and the counter claim filed before the arbitral tribunal. A dispute, even if it is capable of being decided by arbitration and falling wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rights and interests of the parties themselves in the subject matter of the case, whereas actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property. Correspondingly, judgment in personam refers to a judgment against a person as distinguished from a judgment against a thing, right or status and judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself. (Vide: Black's Law Dictionary). 38. Generally and traditionally all disputes relating to rights in personam are considered to be amenable to arbitration; and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration. This is not however a rigid or inflexible rule. Disputes relating to sub-ordinate rights in personam arising from rights in rem have always been considered to be arbitrable. 39. The Act does not specifically exclude any category of disputes as being not arbitrable. Sections 34(2)(b) and 48(2) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nventional view is thus that, for example, rights under a patent licence may be arbitrated, but the validity of the underlying patent may not.... An arbitrator whose powers are derived from a private agreement between A and B plainly has no jurisdiction to bind anyone else by a decision on whether a patent is valid, for no-one else has mandated him to make such a decision, and a decision which attempted to do so would be useless. (Emphasis supplied) 45. In Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors. 1993 (2) SCC 507 this Court held that grant of probate is a judgment in rem and is conclusive and binding not only the parties but also the entire world; and therefore, courts alone will have exclusive jurisdiction to grant probate and an arbitral tribunal will not have jurisdiction even if consented concluded to by the parties to adjudicate upon the proof or validity of the will. 46. An agreement to sell or an agreement to mortgage does not involve any transfer of right in rem but create only a personal obligation. Therefore if specific performance is sought either in regard to an agreement to sell or an agreement to mortgage, the claim for specific per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tgaged property or right of redemption, can not get himself impleaded as a party to the arbitration proceedings, nor get his claim dealt with in the arbitration proceedings relating to a dispute between the parties to the arbitration, thereby defeating the scheme relating to mortgages in the Transfer of Property Act and the Code. It will also lead to multiplicity of proceedings with likelihood of divergent results. 48.2. In passing a preliminary decree and final decree, the court adjudicates, adjusts and safeguards the interests not only of the mortgagor and mortgagee but also puisne/mesne mortgagees, persons entitled to equity of redemption, persons having an interest in the mortgaged property, auction purchasers, persons in possession. An arbitral tribunal will not be able to do so. 48.3. The court can direct that an account be taken of what is due to the mortgagee and declare the amounts due and direct that if the mortgagor pays into court, the amount so found due, on or before such date as the court may fix (within six months from the date on which the court confirms the account taken or from the date on which the court declares the amount due), the Petitioner sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court where the mortgage suit is pending, should not refer the parties to arbitration. 50. The Appellant contended that the suit ultimately raises the following core issues, which can be decided by a private forum: (i) Whether there is a valid mortgage or charge in favor of SBI? (ii) What is the amount due to SBI? and (iii) Whether SBI could seek eviction of Appellant from the flat, even if it is entitled to enforce the mortgage/charge? It was submitted that merely because mortgage suits involve passing of preliminary decrees and final decrees, they do not get excluded from arbitrable disputes. It is pointed out that the arbitral tribunals can also make interim awards deciding certain aspects of the disputes finally which can be equated to preliminary decrees granted by courts, and the final award made by the arbitrator, after detailed accounting etc. could be compared to the final decree by courts. It is therefore contended that there is no impediment for the parties to mortgage suits being referred to arbitration under Section 8 of the Act. 51. If the three issues referred by the Appellant are the only disputes, it may be possible to refer them to arbitration. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court and not by an arbitral forum and thus, no relief under Section 9 of the Act can be granted by this Court. 16. Mr. Joshi, the learned counsel then submits that even notice of demand and invoking arbitration clause issued by the petitioner was also for enforcement of mortgage alongwith other claims. It is submitted that if part of the claim cannot be referred to arbitration and such claim cannot be segregated with other claims, no part of dispute cannot be referred to arbitration and the same can be decided only by a Civil Court. It is submitted that jurisdiction of this Court invoked, is based on mortgage. It is submitted that if claim for enforcement of mortgaged properties is given up, this Court will have no territorial jurisdiction as the installments were payable at Hyderabad. Respondents are carrying on business at Hyderabad. No cause of action had arisen at Mumbai other than creation of mortgage. It is submitted that even by consent of parties, jurisdiction cannot be conferred at Courts at Mumbai as no part of cause of action has arisen at Mumbai. It is submitted that present proceedings are filed at Mumbai in view of the fact that mortgage deed was executed at Mumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it. 17. The provision enunciates that the Court shall have the same power for making orders as it has for the purpose of and in relation to any proceedings before it. Now it is in this background, that it would be necessary to consider the basic issue raised. The submission of the First Respondent is that when a Court passes an order providing for an interim measure of protection for securing the amount in dispute in arbitration, the power can be exercised only subject to the restrictions which are spelt out in Order 38 Rule 5 of the Code of Civil Procedure 1908. Order 38 Rule 5 applies in a situation where at any stage of a suit, the Court is satisfied that the defendant (i) is about to dispose of the whole or part of his property or (ii) is about to remove the whole or part of his property from the local limits of the jurisdiction of the Court with intent to obstruct or delay the execution of any decree that may be passed against him. In such an event the Court may direct the defendant either to furnish security ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e afraid, exercise of power cannot be restricted by importing the provisions of Order 38, Rule 5 of the Code of Civil Procedure as it is. The legislature while enacting section 9(ii) (b) does not seem to us to have intended to read into it the provisions of Order 38, Rule 5 of the Code of Civil Procedure as it is. .... The provisions of Order 38, Rule 5 C.P.C. cannot be read into the said provision as it is nor can power of the Court in passing an order of interim measure under section 9(ii)(b) be made subject to the stringent provision of Order 38, Rule 5. The power of the Court in passing the protection order to secure the amount in dispute in the arbitration before or during arbitral proceedings or at any time of making of the arbitral award but before it is enforced cannot be restricted by importing the provisions set out in Order 38 of C.P.C. but has to be exercised ex debito justitiae and in the interest of justice. The Court while considering the application for interim protection under section 9(ii)(b) is guided by equitable consideration and each case has to be considered in the light of its facts and circumstances. The interim protection order contem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure. Each case under section 9(ii)(b) of the Act of 1996 has to be considered in its own facts and circumstances and on the principles of equity, fair play and good conscience. 18. In a subsequent decision of the Supreme Court in Arvind Constructions Co. (P) Ltd. v. Kalinga Mining Corporation (2007) 6 SCC 798 the Supreme Court held that the power under Section 9 cannot be read as independent of the Specific Relief Act and it could not be contended that the restrictions placed by the Specific Relief Act cannot control the exercise of the power under Section 9. The Court observed that while entertaining an application under Section 9, the Court must have the same power for making orders as it has for the purpose of and in relation to any proceedings before it. Consequently the general rules that govern the Court while considering the grant of an interim injunction at the threshold would be attracted even while dealing with an application under Section 9. The Court also noted the principle that when a power is conferred under a special statute and is conferred on an ordinary court of the land, without laying down any special condition for the exercise of that power, the genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to any proceedings before it also suggest that the normal rules that govern the court in the grant of interim orders is not sought to be jettisoned by the provision. Moreover, when a party is given a right to approach an ordinary court of the country without providing a special procedure or a special set of rules in that behalf, the ordinary rules followed by that court would govern the exercise of power conferred by the Act. 20. The Supreme Court noted that the power to grant injunction by way of specific relief is covered by the Specific Relief Act 1963, injunction being a form of specific relief. Section 9, the Supreme Court noted does not contain any special condition nor does it provide for a special procedure. The Court noted that whether an interim measure should be ordered permitting the appellant to carry on mining operations in the face of an attempted termination of the contract would lead the court to a consideration of the classical rules for the grant of such an interim measure. This, it was held, had to be considered based on the well settled principles in that behalf. Consequently the Supreme Court held as follows: Therefore, on the whole, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would not be possible to subscribe to the position that the power to grant an interim measure of protection under Section 9(ii)(b) is completely independent of the provisions of the Code of Civil Procedure 1908 or that the exercise of that power is untrammeled by the Code. The basic principle which emerges from both the judgments of the Supreme Court is that though the Arbitration and Conciliation Act 1996 is a special statute, Section 9 does not either attach a special condition for the exercise of the power nor does it embody a special form of procedure for the exercise of the power by the Court. The second aspect of the provision which has been noted by the Supreme Court is the concluding part of Section 9 under which it has been specified that the Court shall have the same power for making orders as it has for the purpose of and in relation to any proceedings before it. This has been interpreted in both the judgments to mean that the normal rules that govern the Court in the grant of an interlocutory order are not jettisoned by the provision. The judgment of the Division Bench of this Court in National Shipping Company (supra) notes that though the power by Section 9(ii)(b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efficacy of arbitration as a form of dispute resolution. Just as on the one hand the exercise of the power under Section 9 cannot be carried out in an uncharted territory ignoring the basic principles of procedural law contained in the Code of Civil Procedure 1908, the rigors of every procedural provision in the Code of Civil Procedure 1908 cannot be put into place to defeat the grant of relief which would subserve the paramount interests of justice. A balance has to be drawn between the two considerations in the facts of each case. The principles laid down in the Code of Civil Procedure 1908 for the grant of interlocutory remedies must furnish a guide to the Court when it determines an application under Section 9 of the Arbitration and Conciliation Act, 1996. The underlying basis of Order 38 Rule 5 therefore has to be borne in mind while deciding an application under Section 9(ii)(b). 18. The respondents also placed reliance upon the Judgment of Supreme Court in case of Raman Tech. Process Engg. Co. And Anr. Vs. Solanki Traders; (2008) 2 Supreme Court Cases 302 paragraphs 4 to 6 of which read thus: 4. The object of supplemental proceedings (applications for arrest or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 6. A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him. Shifting of business from one premises to another premises or removal of machinery to another premises by itself is not a ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bonafide and valid and also satisfy the court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him, before power is exercised under Order 38 Rule 3 CPC. Courts should also keep in view the principles relating to grant of attachment before judgment (See -- Prem Raj Mundra v. Md. Maneck Gazi AIR 1951 Cal 156, for a clear summary of the principles.) 19. The next submission of Mr. Joshi, the learned counsel appearing for respondent is that if the petitioner gives up the claim in respect of mortgaged properties and such claim is not the subject matter of the dispute in arbitration, in view of Section- 9(ii)(c) of the Act, petitioner is not entitled to apply for any interim measures in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Ram Sarup. The second representation is dated 13.12.2003 in which reference has been made to a representation purported to be dated 28.11.2003. In the representation dated 13.12.2003 reference is made to the acknowledgement dated 12.11.2003. This creates an impression that the acknowledgement dated 12.11.2003, of the President's Secretariat relates to the representations sent by Ram Sarup. But the copy of purported acknowledgement filed as Annexure P-2 shows as if it was sent by the petitioner. No copy of any representation dated 28.10.2003 as indicated in Annexure P-2 has been filed along with the petition. The petitioner nowhere has stated that he has any personal knowledge of the allegations made against respondent No. 3. He does not even aver that he made any effort to find out whether the allegations have any basis. He only refers to the representation of Ram Sarup and some paper cuttings of news items. He has not indicated as to whether he was aware of the authenticity or otherwise of the news items. It is too much to attribute authenticity or credibility to any information or fact merely because, it found publication in a newspaper or journal or Magazine or any other f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the arbitral tribunal. The learned senior counsel invited my attention to paragraph 12 of the Judgment of Supreme Court in case of Booz Allen (2011) 5 SCC 532 (supra) to demonstrate that the Supreme Court was considering the scope of Section 8 of the Act made in a pending suit. Paragraph 12 of the said Judgment extracts the reliefs claimed in suit filed in the Bombay High Court, which reads thus: 12. As the loan amount due by RV Appliances was not repaid, SBI filed a mortgage suit (Suit No. 6397/1999) in the High Court of Bombay on 28.10.1999 against Capstone (first Defendant), Appellant (second Defendant), and RV Appliances (Defendant No. 3) in regard to the mortgaged property (flat No. 9A) for the following reliefs: (a) for a declaration that the 1st Defendant as mortgagor was due in a sum of ₹ 8,46,10,731/- with further interest on the principal sum at the rate of ₹ 16.5% per annum and additional interest for delayed payment at the rate of 2% per month from 1st September, 1999 till payment or realization; (b) for a declaration that the amount and interest mentioned in prayer (a) above is secured in favor of the Plaintiffs by a valid a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitration. The learned senior counsel placed reliance on paragraph 38 of the said Judgment and submits that all disputes relating to rights in personam are considered to be amenable to arbitration. The learned senior counsel then submits that a mortgage suit for sale of mortgage property is an action in rem and a suit of mortgage is not a mere suit for money. The learned senior counsel placed reliance upon paragraphs 48.1 to paragraphs 48.5 of the said Judgment and submits that under Order 34 Rule 1 of the CPC, all persons having an interest either in the mortgage security or in the right of redemption, shall be joined as parties to any suit relating to the mortgage, so as to avoid any multiplicity of the suits and if such dispute is referred to arbitration, all such third parties having an interest in the mortgaged property or right of redemption, cannot get themselves to be impleaded as a party to the arbitration proceedings, nor get their claim dealt with in the arbitration proceedings relating to a dispute between the parties to the arbitration. It is further submitted that this situation would not arise in the facts of this case, as the petitioner would not file claim for en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e upon Section 9(ii)(d) and (e) of the Act in support of his plea that petitioner is entitled to apply for interim injunction or appointment of receiver or such other interim measures or protection as may appear to the Court to be just and convenient even if such properties are not subject matter of the dispute in arbitration. It is submitted that for the purposes of interim relief under Section 9(ii)(d) and (e), it is not necessary that such properties shall be subject matter of dispute in arbitration. It is thus, submitted that even if it is assumed that there is no claim for enforcement of mortgage in arbitration proceedings, under Section 9(ii)(d) and (e), petitioner would be entitled to apply for interim injunction or appointment of receiver of such properties which may include the property mortgaged in favour of the petitioner. 26. In so far as issue of territorial jurisdiction raised by the respondents in respect of ARBP No. 1321/12 is concerned, the learned senior counsel submits that disbursement of loan amount to the respondents has been made by the petitioner at Mumbai. The loan agreement was executed by the respondent in Mumbai. Both the parties have agreed under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner prayed for direction against the respondents to furnish the security of whatsoever nature to secure the claim of the petitioner. The learned counsel submits that such relief cannot be refused on the ground that petitioner has also applied for appointment of Court Receiver in respect of the mortgaged property or that in the notice of demand, the petitioner had called upon the respondents to redeem the mortgage. 29. In so far as issue of jurisdiction raised by the respondents in ARBP No. 1095/12 is concerned, the learned counsel submits that the Promissory Note was executed at Mumbai, payment was demanded from Mumbai, payment under Promissory Note was to be made at Mumbai, both the parties had agreed in the agreement that dispute, if any, between the parties would be subject to the exclusive jurisdiction of the Court at Mumbai. It is submitted that as material part of cause of action between the parties has arisen in the jurisdiction of this Court, this Court only has jurisdiction to try and dispose of this petition. 30. Mr. Tulzapurkar, the learned senior counsel appearing for the petitioner (ARBP No. 1321/12) submits that as the respondents committed default, the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned counsel invited my attention to paragraph 25 of the said affidavit in which, it is pleaded by the respondents that four bank accounts of the first respondent are already attached. The respondents have admitted that they have other creditors too and the respondents need some means available to them to discharge the dues of such other creditors and to deprive them of such rights, would be highly oppressive and unwarranted. The learned counsel also invited my attention to the averments made in the petition and more particularly paragraphs 9, 12, 13, 16, 17, 18 and 19 of the petition in support of the plea that the petitioner has not only pleaded, but has made out a case that the respondents would create third party rights in respect of the said properties in view of large number of creditors and liability of the respondents may be more than ₹ 3000 crores from the multiple lenders. The learned counsel submits that these facts narrated in various paragraphs in petition, are not disputed in affidavit in reply. The learned counsel submits that thus, the petitioner has satisfied the principles of Order 38 Rule 5 of CPC, which are applicable to the application under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gaged property, action purchasers, person in possession and an arbitral tribunal will not be able to do so. 34. On perusal of Judgment of Supreme Court in case of Booz Allen (2011) 5 SCC 532 (supra), it is clear that Supreme Court, after considering the prayers in the plaint in a mortgage suit, has held that as the suit was for enforcement of mortgage and was a suit in rem, issue of arbitrability having raised by the defendant in such suit and the application filed under Section 8 of the Act, such issue of arbitrality has to be decided by the Court hearing the suit and cannot be left to be decided by the arbitral tribunal. Question, however, arises for consideration of this Court in the present proceedings is whether in an application under Section 9 of the Act while deciding a relief in the nature of interim measures and in the absence of the plaint before this Court, whether this Court shall decide the issue of arbitrability of the claims which are not even before this Court and on that ground, dismiss the application under Section 9 for interim measures ? It is not in dispute that the petitioners have not filed any statement of claim before the arbitral tribunal seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 9 filed in this Court by the petitioner for interim measures, cannot be equated with the proceedings filed in a pending suit for referring the parties to arbitration under Section 8 of the Act of 1996. Thus, in my view, reliance placed by the respondents on the Judgment of Supreme Court in case of Booz Allen (2011) 5 SCC 532 (supra) is of no assistance to the respondents while opposing application under Section 9 of the Act of 1996. 35. Perusal of Order 34, Rule 1 of the CPC 1908 which provides that all persons, having an interest either in the mortgaged security or in the right of redemption, shall be joined as party to any suit relating to mortgage so as to avoid any multiplicity of the suits. I am inclined to accept the submission of Mr. Tulzapurkar, the learned senior counsel that that situation would not arise in the facts of this petition, as the petitioner would not file a claim for enforcement of mortgage. 36. Perusal of Order 34 Rule 14 of the CPC 1908 clearly indicates that there is no bar in filing money claim even by a mortgagee notwithstanding anything contained in Order II Rule 2. The said provision indicates that a mortgagee shall not be entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s thus, jurisdiction to entertain, try and dispose of the present petitions. I am not inclined to accept the submission made by the respondents that if relief in respect of enforcement of mortgage is not pressed, in respect of remaining reliefs, this Court does not have jurisdiction to consider such reliefs. 39. The next issue raised by the respondents is that the petitioners have not made out any case for grant of reliefs as claimed in the petitions which are in the nature of attachment before judgment akin to the principles of Order 38 Rule 5 of the CPC of 1908 in the facts of this case. As the petitioners do not press for reliefs for enforcement of mortgaged properties, no reliefs as claimed in the petitions for appointment of Court Receiver and also injunction in respect of such properties, be granted under Section 9. 40. On reading of section 9 of the Arbitration Conciliation Act, 1996, it is clear that the Court can grant interim measures under sub section 2(b), (d) and (e) even if the property or things are not subject matter of the dispute in arbitration. It is clear that for granting interim measures or protection, the Court would not have power to grant such inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, contended that it was due to global recession and economic slow down the inflow of commercial advertisement revenue got hampered and the revenues fell drastically, which was a temporary phenomena. The respondents informed that they were in process of a strategic transaction which shall significantly mitigate the present risk profile of the respondent and would get permanent resolution. The respondent requested the petitioners not to initiate precipitative action at that stage. Even in the affidavit in reply filed by the respondent, there is no specific denial to the claims made by the petitioner. The respondents have vaguely alleged that claim made of ₹ 101 crores was not correct. The respondents submitted that it was in the process of re-structuring its outstanding to various banks and financial institutions. The respondents admitted that four bank accounts of the respondents have been already attached and that there were other creditors also for whom, the respondents need some means available to them to discharge the dues of such other creditors. The stand taken by the respondents is that this Court has already appointed receiver in respect of the assets of the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any newspaper reports, but is filed independently and such averments are not disputed by the respondents. For the reasons recorded aforesaid, I pass the following order: ARBITRATION PETITION No. 1321 OF 2012: (a) Respondent No. 1 is directed to furnish security in favour of the petitioner sum of ₹ 101,71,03,644/- as on 23rd August, 2012 with further interest thereon at the rate of 3% p.a. and other expenses, costs and charges etc., to the satisfaction of the Court Receiver, High Court, Bombay, within four weeks from today, failing which; (b) The Court Receiver, High Court, Bombay is appointed as Receiver of the properties described in Exhibit-P and assets/properties described in Exhibit-Q to the petition, with a direction to appoint respondents as agent of the Court Receiver on usual terms and conditions and on payment of royalty and security. Till the Court Receiver takes possession of the properties described in Exhibit-P and Exhibit-Q, there shall be injunction in respect of the properties described in Exhibit-P and Exhibit-Q against respondent nos. 1 and 2, their employees, servants and agents in terms of prayer clauses (b) and (d). (c) There s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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