TMI Blog2022 (10) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... t is opined that unless and until the preconditions under Order XXXVIII Rule 5 of the CPC are satisfied and unless there are specific allegations with cogent material and unless primafacie the Court is satisfied that the appellant is likely to defeat the decree/award that may be passed by the arbitrator by disposing of the properties and/or in any other manner, the Commercial Court could not have passed such an order in exercise of powers under Section 9 of the Arbitration Act, 1996. The order(s) which may be passed by the Commercial Court in an application under Section 9 of the Arbitration Act, 1996 is basically and mainly by way of interim measure. It may be true that in a given case if all the conditions of Order XXXVIII Rule 5 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to as the Arbitration Act, 1996), by which the Commercial Court directed the appellant herein original opponent/respondent No. 1 to deposit the amount of performance bank guarantees pertaining to purchase order Nos. 01, 02 and 03 invoked by it, the original opponent/respondent No. 1 has preferred the present appeal. 2. We have heard Shri Vivek Chib, learned Senior Advocate appearing on behalf of the appellant and Shri K.V. Viswanathan, learned Senior Advocate appearing on behalf of respondent No. 1 herein the main contesting party. 3. At the outset it is required to be noted that in the present case the dispute is with respect to three purchase orders, namely, purchase order Nos. 01, 02 and 03. It appears that the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant herein to deposit the amount of respective performance bank guarantees, which as such has already been invoked and for which the payments were already made by the bank. The order passed by the Commercial Court under Section 9 of the Arbitration Act, 1996, directing the appellant to deposit in the court the amount of respective bank guarantees pertaining to purchase order Nos. 01, 02 and 03 was the subject matter of appeal before the High Court under Section 13 of the Commercial Courts Act, 2015. By the impugned judgment and order, the High Court has dismissed the said appeal which has given rise to the present appeal. 4. Having heard learned counsel appearing on behalf of the respective parties and in the facts and circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt is satisfied on the conduct of opposite/opponent party that the opponent party is trying to sell its properties to defeat the award that may be passed and/or any other conduct on the part of the opposite/opponent party which may tantamount to any attempt on the part of the opponent/opposite party to defeat the award that may be passed in the arbitral proceedings, the Commercial Court may pass an appropriate order including the restrain order and/or any other appropriate order to secure the interest of the parties. However, unless and until the conditions mentioned in Order XXXVIII Rule 5 of the CPC are satisfied such an order could not have been passed by the Commercial Court which has been passed by the Commercial Court in the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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