A. No.1784 of 2011 VINOD K.SHARMA, J. This application under Sec.9 of the Arbitration & Conciliation Act has been filed by the applicant for directing the respondent to furnish security for Rs.2,57,702/- (Rupees two lakhs fifty seven thousand seven hundred and two only) to secure the amount in arbitration and in the event of default, to attach the movable properties of the respondent mentioned in the Judges summons. 2 It is pleaded in the affidavit that the respondent availed a personal loan of Rs.1,23,000/- (Rupees one lakh and twenty three thousand only) which was repayable in 36 equated monthly instalments, of Rs.4,634/- (Rupees four thousand six hundred and thirty four only) each. The respondent is in default of payment of instalment, which entitles the applicant to recall the loan along with interest. 3 It is also the case of the applicant that the respondent agreed to pay interest @ 21% p.a. and that inspite of notice, the respondent has chosen not to pay the amount, due under the loan agreement. 4 The case of the applicant is that the respondent is trying to sell the assets including movable properties, to third parties and shift the premises to unknown destination, to defraud the applicant 5 It is also the case of the applicant that in case attachment is not ordered, the applicant would suffer irreparable loss and hardship, and the interest of the applicant company will not be protected. 6 In support of the application, the learned counsel for the applicant placed reliance on the judgment of the Division Bench of this Court in the case of Cholamandalam DBS Finance Ltd. Vs Sudheesh Kumar (2010(1) CTC 481, wherein this Court has laid down, that for invoking the provision of Sec.9 of the Arbitration & Conciliation Act, the principle laid down for grant of injunction under Sec.39, Rule 1 and 2 of C.P.C. are to be followed. 7 On consideration, I find that this case will not fall under Order 39 Rule 1 and 2 C.P.C. but would be governed by the principle of attachment before judgment, ie. order 38 Rule 5 C.P.C. 8 In order to seek attachment of the properties, the applicant is required to show positive evidence of steps taken to dispose of the properties, mere vague averments in affidavit cannot be a ground to order attachment before judgment. 9 Sec.9 of the Arbitration & Conciliation Act cannot be invoked to secure the amount, as Sec.9 of the Arbitration & Conciliation Act gives discretionary jurisdiction to the Court. 10 It is only in the rare cases, that interim order of attachment of property which is subject matter of arbitration. 11 The petitioner has already initiated proceedings before the Arbitrator. Under Sec.17 of the Act, arbitral tribunal, is also vested with powers to pass interim order. 12 The finance company had given loan without security, keeping in view of the status of the respondent, therefore it cannot be said that applicant would be prejudiced for want of interim directions. 13 It cannot be believed that the company dealing with public money, can give a personal loan to the party, without ascertaining the status and capability to repay back. 14 In any case, no positive facts except apprehension is pleaded, this cannot be justify invoking the jurisdiction of this Court under Sec.9 of the Arbitration & Conciliation Act. 15 The learned counsel for the applicant has also produced a copy of the claim petition filed by the applicant before the Arbitrator who has been appointed by the Managing Director of the applicant company. 16 Mere filing of the claim petition before the Arbitrator does not lead to a conclusion, that interim measures under Sec.9 of the Act are to be positively passed. The application is misuse of provisions of law, to achieve the object of recovery, which is not the intention of the section. 17 In view of the facts stated, no ground is made out, either to direct the respondent to furnish security or order attachment . 18 Consequently, this application is ordered to be dismissed. No costs. 25.03.2011 Index: Yes/No Internet: Yes/No vaan VINOD K.SHARMA, J. vaan Application No.1784 of 2011 25.03.2011