IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO. 144 OF 2008 ARBITRATION APPLICATION NO. 144 OF 2008 ARBITRATION APPLICATION NO. 144 OF 2008 Nand Kishore Agarwal ...Applicant vs. Jayabharat Credit Limited ...Respondents Mr.K.R. Bulchandani with Mr.Subhash Jha i/b. M/s.Law Global for the Applicant. Mr.D.V. Merchant with Mr.Dilip Rai i/b. Ms.Aruna Singh for the Respondents. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : AUGUST 4, 2008 DATED : AUGUST 4, 2008 DATED : AUGUST 4, 2008 P.C. :- P.C. :- P.C. :- 1. This application has been filed under Section 9 of the Arbitration and Conciliation Act. The Applicant had initially asked for the following relief :- "that this Hon’ble Court be pleased to direct the Learned Arbitrator to take on record the draft issues of the Applicant tendered on 11.09.2007." when it was pointed out by the Counsel appearing on behalf of the respondents that the learned Arbitrator had already framed issues and had rejected the application of the applicant for framing the issues as - 2 - per the draft issues tendered by the applicant, the learned Counsel for the applicant sought leave of the Court to delete the said prayer clause and substitute it by adding a prayer challenging the order passed by the learned Arbitrator. In the interest of justice, leave was granted. The applicant, therefore, seeks the following prayer clause (a) : The Minutes of order dated 29/11/07 rejecting the draft issues of the applicant be set aside and the draft issues of the applicant be also taken on record as issues framed in the arbitration. 2. The learned Counsel for the applicant submitted that by virtue of the issues as framed by the Arbitrator, the entire onus of proving the case has been shifted on the applicant. He submitted that the burden of proving was on the respondents - petitioners in the arbitration and the learned Arbitrator had erred in framing the said issues and not accepting the draft issues tendered by the applicant. He further submitted - 3 - that this Court has inherent powers under Section 9 to give direction to the Arbitrator if any error was committed in the procedure followed by him in the arbitration proceedings. He further submitted that such a direction could be given by this Court in an application under Section 9 of the said Act, more particularly, in view of Section 9 of the Arbitration Act. "9. Interim measures etc. by Court A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court- (i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or (ii) for an interim measure of protection in respect of any of the following matters, namely:- (a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement; (b) securing the amount in dispute in the arbitration; (c) the detention, preservation or - 4 - inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protection as may appear to the Court 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." 3. The learned Counsel appearing on behalf of the respondents, on the other hand, raises a preliminary objection regarding the maintainability of application seeking such reliefs as claimed by the applicant under Section 9 of the said Act. He submitted that therefore, the application was liable to be dismissed. 4. In my view, the submission made by the learned Counsel for the applicant cannot be accepted. There is - 5 - no provision under the Arbitration Act specifically empowering this court to have the power of superintendence over the arbitral Tribunal or power to monitor the proceedings which are pending before the Tribunal. Section 9 specifically lays down that this Court can either before, during or after the award is passed, pass orders in order to protect the interest of parties in respect of the subject matter of the arbitration proceedings. In my view, perusal of the aforesaid provision cannot be construed to mean that this Court can set side any interlocutory order which is passed by the Arbitral Tribunal while exercising its jurisdiction under Section 9 of the Arbitration Act. It is always open for the parties to challenge the arbitration award by filing an appeal under Section 34. 5. At this stage, therefore, this Court cannot interfere with the interlocutory order passed by the Arbitrator. There is no substance in the submission made by the learned Counsel for the applicant. 6. Arbitration Application, accordingly, is - 6 - dismissed. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)