1 ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 209 OF 2009 AND ARBITRATION PETITION NO. 211 OF 2009 AND ARBITRATION PETITION NO. 212 OF 2009 AND ARBITRATION PETITION NO. 230 OF 2009 AND ARBITRATION PETITION NO. 231 OF 2009 L & T Finance Ltd. ...Petitioner. Vs. Pravin Pandurang Patil ...Respondent. Ms. Shakuntala Joshi i/by M/s. S.I. Joshi & Co. for the Petitioner. Mr.A.S.Kode with Mr. Mangesh Deshmukh for the Respondent. CORAM :- ANOOP V. MOHTA, J. DATED :- 8TH JULY, 2009. P.C.:- 1. In spite of repeated opportunities given to the Respondent, he failed to avail the same and unable to settle the matter with the Petitioner. 2 Admittedly, there is a huge amount due and payable. There is no dispute that there is an Arbitration clause. Clause 17 read with 19 provides that this Court has jurisdiction to entertain and/or decide the disputes arising out of this contract/agreement. 2. As noted, the Respondent is unable to pay the arrears of amount since January, 2009 and thereafter, till this date. There is no dispute that the Respondent is in possession of all these machineries and using the same without paying any payment. 3 The learned counsel appearing for the Respondent has strongly place reliance on Adhunik Steels Ltd. V/s. Orissa Manganese and Minerals (P) Ltd. In (2007) 7 S.C.C. 125, and thereby contended that the balance of convenience, equity, irreparable loss and injuries will be caused, if the Court Receiver who has already taken possession, if permitted to proceed further either to sell the machineries and/or to hand over the possession of the same to the Petitioner. That will definitely cause great injustice and the Respondents would not be in a position to run the business for which he has taken a loan and these machineries. 4 Strikingly, this Court has granted an opportunity to the Respondent though the interim order has been in force since 16th April, 2009 in terms of prayer clause (c) and later on prayer clause (a) except bracketed portion. The Court Receiver has taken symbolic possession of those machineries pursuance to this order. The Respondents, in spite of 3 opportunities given, unable to settle the matter till this date with Petitioner. In reply, there is no denial to the basic facet of arrears of amount as averred. 5 If the case is made out, even by an interlocutory order the Court can direct the Respondent to take possession of the property to secure the amount. In this background, in my view, the Supreme Court Judgment in Adhunik (supra), that itself has recognized the Court’s power to pass such order. 6 In the present cases, there is no justification whatsoever on record, or in reply and or otherwise and admittedly, Respondent for whatever may be the reason failed to pay the amount due and payable. As per the agreements in all the matters, is near about 1 crore and 52 lacs. 7 Now, in this background, the Petitioner’s apprehension and the justification for the relief as prayed, specially when the properties involved are movable properties just cannot be overlooked. The contention that the Respondent be permitted to use those machineries, so that he will earn the money and will be in a position to pay the arrears and, as well as, the future installments, has no force as the arrears so mounted itself shows that 4 the Respondent is not in a position to pay the amount and or to secure that amount. The time was already granted to secure this amount but in vain. 8 Once there is a commercial agreement between the parties, and the present economic condition, as well as, the financial condition even if we take not of, still the Respondent is under obligation to secure the amount. But, in the present cases, he is unable to secure the amount and or in position to settle the dispute inspite of the opportunities given. 9 Strikingly, all these agreements expired in December, 2008 itself. The Arbitration in all these matters are still pending. I am inclined to allow this Petition to avoid further damage to the property and to avoid any further complications. 10 Resultantly, the Petition is allowed in terms of prayer clause (a) by removing the bracket, so put already. 11 It is made very clear, that all these are the prima facie observations in view of the present Petitions and considering the scope and purpose of Section 9 of the Act. Liberty is also granted to the Respondent and/or the parties to take appropriate pleas or defences before the Arbitral Tribunal. The Arbitral Tribunal will deal with every aspect including the effect of breach of contract and or non-payment or liability if any arising out of the same. This may include the defence whatsoever available to the Respondent. 5 12 The liberty is also granted to the Respondent to settle the matter and or furnish the security for the amount involved in the Petitions, within a period of two weeks. This order will not take effect for two weeks, as a last chance. 13 All these petitions are accordingly allowed in terms of prayer clause (a). No order as to costs. (ANOOP V. MOHTA, J.)