FAO No.389 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.389 of 2010 (O&M) DATE OF DECISION: 09.07.2010 **** The Punjab State Cooperative Supply & Marketing Federation Limited . . . . Appellant VS. M/s Shiv Shankar Rice Mills, Fazilka through its partners . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Ms.Deepali Puri, Advocate for the appellant. **** RAKESH KUMAR JAIN J. This appeal has been filed after a delay of 45 days in filing and 128 days in re-filing against the impugned order dated 03.12.2008 passed by the District Judge, Ferozepur, dismissing the application of the appellant filed under Section 9 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act’), observing as under: - “Both the issues are inter-woven. Therefore, the same have been taken up together in order to avoid repetition of evidence and discussion. The onus to prove issue No.1 was on the petitioner, whereas the onus to prove issue No.3 was on the respondents firm. At the very outset of the arguments, it would be pertinent to mention that the land measuring 21 kanals FAO No.389 of 2010 (O&M) -2- 13 marls was not the subject matter of the agreement executed between the parties, the copy of which is Ex.P2. A close scrutiny of Section 9 of the Act transpires that it is only an interim measure of protection in respect of any of the matters namely preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement or for securing the amount in dispute in the arbitration. Since the property in dispute is not the subject matter of the arbitral agreement executed between the parties, the petition under Section 9 of the Act is otherwise not maintainable. Here, it would also be pertinent to mention that after the filing of the present petition, the matter was referred for arbitration to Kanwar Gulwant Singh IAS Retired, who has already pronounced the arbitral award dated March 9, 2007 vide which he has partially allowed the claim of the petitioner to the tune of Rs.17,31,664/- as on 31.8.2005 along with further simple interest payable @ 21% per annum till the date of actual realization. There is nothing on the record brought by the parties that the award dated March 9, 2007 has either been challenged under Section 34 of the Act or any recourse has been adopted for the recovery of the amount under Section 36 of the Act. The petitioner by having recourse to Section 36 of the Act for the enforcement of the arbitral award can only recover the amount and as an interim measure can have recourse to the provisions contained in Section 9 of the Act, but in the case in hand, on both the counts, the instant petition is otherwise not FAO No.389 of 2010 (O&M) -3- maintainable and as such no relief as sought by the petitioner can be granted. Accordingly, issue No.1 is decided against the petitioner, whereas issue No.3 is decided in favour of the respondents firm.” Even if, this Court considers application for condonation of delay sympathetically, there is no substance in the appeal on merits and as a matter of fact nothing has been argued by learned counsel for the appellant in order to find fault with the impugned order except for narrating facts. Thus, in view of the finding recorded by the learned Court below on issues No.1 & 3, I do not find any error in the impugned order. Hence, the present appeal is hereby dismissed. No costs. (RAKESH KUMAR JAIN) 09.07.2010 JUDGE Vivek