O.A.Nos.138 of 2010, A.Nos.694 of 2010 and 694 of 2011 VINOD K.SHARMA, J. This order shall dispose of O.A.Nos.138 of 2010, A.Nos.694 of 2010 and A.No.694 of 2011 filed under Sec.9 of the Arbitration & Conciliation Act by M/s.Kasturi & Sons Ltd. 2 The prayer made in all these applications is as under: O.A.No.138 of 2010: This application has been filed to grant an order of injunction restraining the respondents 1, 3, 4, 5 and 6 from transferring, alienating, encumbering or creating interest of any kind whatsoever in respect of 2,43,00,000 shares of the second respondent, morefully described in the shedule to the Judge's summons. A.No.694 of 2010: This application has been filed to direct the respondents 1, 3, 4, 5 and 6 to deposit the share certificates in respect of 2,43,00,000 shares of the second respondent, morefully described in the schedule to the Judge's Summons. A.No.694 of 2011: This application has been filed to direct the third respondent or any other person who may claim through the third respondent, to deposit all the original title deeds of the properties belonging to the second respondent company and the fourth respondent before this Court, morefully described in the schedule to the Judge's Summons pending enforcement of award. 3 The facts leading to the filing of all these applications, are that the applicant along with M/s.Hindcorp Resorts Pvt. Ltd. (HRPL) and M/s.Sporting Pastime India Ltd. (SPIL), entered into an agreement with Sri K.C.Palaniswami on 19.07.2004 regarding take over of Sporting Pastime India Ltd., a company registered under the Companies Act. M/s.Sporting Pastime India Ltd. was incorporated on 2.5.1995 on 02.05.1995 as subsidiary company of M/s.Kasturi & Sons Ltd. which held 100% shares in the company. 4 In compliance with the terms of the agreement dated 19.07.2004, two hundred and forty three lakh equity shares of the face value of Rs.10/- each were agreed to have been transferred by the applicant, in favour of Sri K.C.Palaniswami or his nominees. These shares represented 90% of the issued and paid up capital of M/s.Sporting Pastime India Ltd. and the balance twenty seven lakh equity shares of Rs.10/- each were retained by the applicant. 5 All the nominees of the applicant on the Board of M/s.Sporting Pastime India Ltd. resigned their directorships, and three directors along with Sri.K.C.Palaniswami were inducted on 18.08.2004. The directors nominated by Sri.K.C.Palaniswami were 1) Mr.Athappan Ramasamy and (3) Mr.Chandran Ratnasamy. Thus control of M/s. Sporting Pastime India Ltd. was transferred to Sri.K.C.Palaniswami. 6 The shareholding in the second respondent after 18.08.2004 is as under: No. Name Share Cert.No. Distinctive Nos. No. of Shares 1 Cheran Properties Ltd 013 014 015 016 017 021 019 041, 051, 061, 071, 002-010 012-020 022-030 032-040 042-050 052-060 062-070 072-080 270081- 3000000 3000001- 27000000 2,42,99,996 2 Cheran Holdings Pvt Ltd 010, 011, 1 3 KCP Associates Holdings Pvt. Ltd. 011, 021, 1 4 CG Holdings Pvt. Ltd. 009, 001, 1 5 K.C.Palaniswamy 012, 031, 1 6 Kastrui & Sons Ltd. 020, 081- 2700080 27,00,000 Total 2,70,00,000 7 The issued and paid up capital of M/s.Sporting Pastime India Ltd. was unauthorisedly increased to Rs.52 crores on 28.10.2004 by the nominees of the K.C.Palaniswami by subscribing to the additional capital of Rs.25 crores. The applicant challenged the action of Sporting Pastime India Ltd. in increasing its capital, vide C.P.No.50 of 2005 before the Company Law Board, Chennai. The company Law Board declare the enhancement of paid up capital of M/s.Sporting Pastime India Ltd. to be illegal and void, and further directed the Central Government to appoint Inspectors to investigate the affairs of the company vide order dated 9.10.2006. 8 It is the case of the applicant that the Inspectors appointed have observed several irregularities including invalidation of the appointment of one of the director, not having registered office as per the requirements of the Companies Act, 1956 etc. In pursuance thereto, show cause notice has been issued, and the investigation is still pending. The order of the Company Law Board has attained finality for want of challenge by the respondents. 9 The case of the applicant is that in the petition filed before the Company Law Board, fraud played on the applicant by Sri.K.C.Palaniswami is fully disclosed. The applicant claimed that it was aware of various fraud and illegal activities and transaction of Sri.K.C.Palaniswami. The criminal proceedings have also been initiated against Sri.K.C.Palaniswami. 10 M/s.Hindcorp Resorts Pvt. Ltd., one of the parties to the agreement was incorporated on 30.12.1995 with an authorised capital of Rs.5 Crores. 11 This company along with M/s.Sporting Pastime India Ltd. acquired land along with East Coast Road, Chennai for promotion and development of a golf course-cum- beach resort. The land acquired by Sporting Pastime India Ltd. was to the extent of 343.85 acres of patta land in Mudaliarkuppam village, Nainiyarkuppam village and Odhiyur village, whereas M/s. Hindcorp Resorts Pvt. Ltd. acquired 8.39 acres in the same village. Both lands were interspersed and formed an aggregate for an international golf course. 12 M/s.Sporting Pastime India Ltd. had also right to enjoy lands to the extent of nearly 83.80 acres since 1996 and paying fees regularly to the State Government every year, i.e. poromboke land situated between patta lands owned by M/s. Hindcorp Resorts Pvt. Ltd. The total land aggregating to over 435 acres was for golf course-cum- beach resort, for which all necessary statutory permission has been obtained by the applicant, before entering into the agreement referred to above. 13 The control of the second respondent and the land belonging to M/s.Hindcorp Resorts Pvt. Ltd. was agreed to be transferred for setting up of a golf course and beach resorts. Sri. K.C.Palaniswami was also to take over the liability standing in the books of M/s.Hindcorp Resorts Pvt. Ltd. The lands of both the companies are incapable of being separated. The title deeds of the property were also handed over to Sri.K.C.Palaniswami by the applicant along with 90% shares which were subsequently registered in the name of the respondents 1, 3, 4, 5 and 6 on being nominated by Sri.K.C.Palaniswami. 14 The statutory records and registers maintained under the Companies Act, 1956 were also handed over, which put Sri.K.C.Palaniswami in control of M/s.Sporting Pastime India Ltd. Sri.K.C.Palaniswami also agreed to relieve the applicant of the guarantee obligations amounting to Rs.27 Crores. The agreement contains arbitration clause. The Arbitral Tribunal was to consist of three Arbitrators. 15 The case of the applicant is that Sri.K.C.Palaniswami failed to discharge its liability under the agreement with regard to the liabilities taken over, especially the ones guaranteed by the applicant, which resulted in the applicant paying Rs.27 Crores to the creditors along with the interest. 16 The matter was referred to arbitration, and the claim petition was filed by the applicant along with M/s.Hindcorp Resorts Pvt. Ltd. The claim of Rs.31,74,15,150/- (Rupees thirty one crores seventy four lakhs fifteen thousand one hundred and fifty only) was raised before the Arbitral Tribunal on 26.12.2005, along with claim of damages amounting to Rs.5,00,00,000/- (Rupees five crores only). Supplementary claim of Rs.1,24,00,970/- (Rupees one crore twenty four lakhs nine hundred and seventy only) was also raised by M/s.Hindcorp Resorts Pvt. Ltd. as expenditure incurred pending arbitration. 17 The alternative prayer was made that in the event of the first respondent being unable to make payment, the first respondent should be directed to hand over the share certificates of all the shares originally transferred by the applicant to Sri.K.C.Palaniswami and his nominees as also all original title deeds and related documents, papers etc., thereby restoring the status quo ante, as on 18.08.2004, i.e. prior to take over. 18 Along with the statement of claim, interim relief was claimed before the Arbitral Tribunal, to direct the first respondent to deposit share certificates and original title deeds of the property described in the schedule to the agreement dated 19.7.2004, with the arbitral Tribunal pending the resolution of the disputes by the Arbitral tribunal. 19 In response to the application, representatives of the applicant were allowed to inspect the documents at Cheran Towers in Coimbatore and Sri.K.C.Palaniswami also filed an undertaking in the form of an affidavit on 12.12.2005 before the Arbitral Tribunal, undertaking to hold the documents (share certificates and title deeds) at Cheran Towers, Coimbatore until further orders from the Tribunal. The said undertaking is still in force. 20 On 09.04.2007, the Arbitral Tribunal passed an interim consent award vide which Sri.K.C.Palaniswami was directed to pay to the applicant, a sum of Rs.31,17,65,150/- (Rupees thirty one crores seventeen lakhs sixty five thousand one hundred and fifty only) and a sum of Rs.56,50,000/- (Rupees fifty six lakhs and fifty thousand only) to M/s.Hindcorp Resorts Pvt. Ltd. along with interest @ 12% from 30.09.2005 till the date of payment. The time for payment was granted to the first respondent till 30.09.2007, failing which the Arbitral Tribunal was to consider the alternative prayer of restitution. 21 The first respondent failed to pay the awarded amount as per the consent award, therefore the applicant was left with no alternative to seek the return of the company and the valuable assets including the original title deeds and share certificates, being the subject matter of arbitration. 22 The first respondent instead of making payment challenged the consent award by filing application under Sec.34 of the Arbitration and Conciliation Act. The petition under Sec.34 of the Act was filed on behalf of Sri.K.C.Palaniswami and M/s.Sporting Pastime India Ltd. on the ground that these respondents never consented for interim award nor their counsel was authorised to give consent before the Arbitral Tribunal. 23 On notice, the applicant and M/s.Hindcorp Resorts Pvt. Ltd., the respondents 1 and 2 in O.P.No.672 of 2007, filed under Sec.34 of the Arbitration and Conciliation Act, moved an application to implead Mr.Karthik Seshadri, with regard to the stand taken by the respondents 1 and 2. The respondents 1 and 2 thereafter withdrew O.P.No.672 of 2007. 24 The case of the applicant is that it has become necessary for the applicant to seek protection of original title deeds and share certificates by deposit in the Court. 25 By way of interim measures, this Court was pleased to order an interim injunction restraining the first respondent or any other company of the first respondent or agent claiming under him from disposing, alienating or encumbering lands to the extent of 343.85 acres of patta land in belonging to M/s.Sporting Pastime India Ltd. 26 On 01.04.2005, this Court appointed Mr.S.Kuppuswamy Company Secretary of the applicant as interim Receiver to take charge of the second respondent company. 27 The applicant filed O.A.No.849 of 2005 requiring the first respondent to deposit original title deeds which is subject matter of arbitration was withdrawn by the applicant, in view of the undertaking given by the respondent before the Arbitral Tribunal. 28 Thereafter, the applicant filed O.A.No.1100 of 2005 and A.No.5261 of 2005 for restraining the respondents 1 and 2 from operating, withdrawing, closing or in any other way dealing with the term deposit of Rs.25,00,00,000/- (Rupees twenty five crores only) held in the State Bank of India that could come into the hands of the respondents 1 and 2 during the pendency of the arbitral proceedings. 29 The prayer was also made for deposit of the original title deeds which is subject matter of the Arbitral Tribunal. Both the applications were dismissed by this Court vide order dated 25.01.2006. 30 The applicant under the change in circumstances, filed A.No.2734 of 2008 before this Court for protection of subject matter of arbitration and for an order by this Court requiring the first respondent to deposit the share certificates of M/s.Sporting Pastime India Ltd. and the title deeds of the properties belonging to M/s.Sporting Pastime India Ltd. and M/s.Hindcorp Resorts Pvt. Ltd. with the custody of this Court. 31 This Court vide order dated 12.08.2008, directed the first respondent to deposit title deeds relating to the relevant properties with the Registrar General of this Court. However, the relief with regard to the share certificates was not granted. Till date, there is no interim order to protect the share certificate of the second respondent. 32 It is the case of the applicant that in addition to the order passed by this court, Sri.K.C.Palaniswami also gave an undertaking that he would bring title deeds pertaining to the relevant properties to Chennai for the inspection of the Advocate Commissioner on two separate occasions. 33 Sri.K.C.Palaniswami challenged the order passed by this Court by filing O.S.A.No.309 of 2008. The appeal was dismissed by observing as under: "......... from the past conduct of the first appellant, we find that he is habitual of retracting from his statement by filing affidavit with such plea that undertaking was not given by him or his lawyers, which at the time of determination was withdrawn in the earlier case, we reject the ground taken by the appellant that such undertaking on his behalf was not given by learned senior counsel." 34 The SLP No.5737 of 2009 filed against the order passed in appeal was also dismissed by the Hon'ble Supreme Court in limine. 35 On 09.07.2009 the applicant filed contempt petition No.39 of 2009 in A.No.2734 of 2008 for punishing Sri.K.C.Palaniswami for committing contempt of this Court, wherein counter affidvits were filed by Sri.K.C.Palaniswami. However, orders on the contempt petition was reserved. 36 On 16.12.2009 final award was passed directing the respondents 1 and 2 to return the documents of title and share certificates relating to the shares of the second respondent company, i.e. M/s.Sporting Pastime India Ltd. in the following manner: "The documents of title pertaining to the applicant and the share certificates pertaining to 2,43,00,000 shares of the second respondent company, Sporting Pastime India Ltd. to be handed over to the applicant contemporaneously with the applicant paying/ tendering the sum of Rs.3,58,11,000/- to the first respondent with interest @ 12% p.a. on Rs.2,55,00,000/- from the date of award until 17/01/2010 or earlier payment/tender, and thereafter @ 18% p.a. on Rs.2,55,00,000/- till date of payment/tendering of the amount of Rs.3,58,11,000/-" 37 The applicant claims that in view of the fact stated above, the applicant has a strong prima facie case for appointment of an Administrator, as in view of the final award, the status of the second respondent has been restored status quo ante as on 18.08.2004. 38 The applicant also filed C.P.No.50 of 2005 under Sec.397, 398, 402, 407 of Companies Act before the Company Law Board on the ground that the affairs of M/s.Sporting Pastime India Ltd. was not conducted as per the law since taken over by the first respondent in which investigation has been ordered by the Central Government. Wherein the applicant also challenged appointment of directors of M/s.Sporting Pastime India Ltd. and not holding of Annual General meeting, therefore prayed that Administrator be appointed to manage the affairs of the company on a day to day basis. 39 The case of the applicant was that in case the Administrator is not appointed, it will not be possible for the applicant to reap fruit of the award. The applicant also seek an order of this Court to protect and preserve the subject matter of arbitration that 90% shares in the paid up capital of M/s.Sporting Pastime India Ltd. which have been ordered to be returned to the applicant. 40 The applicant claims that balance of convenience is also in favour of the applicant as in view of the affidavit filed by the first respondent on 12.12.2005 before the Arbitral Tribunal to hold the shares in his custody till the conclusion of the arbitral proceedings. 41 It is also the case of the applicant that direction to deposit shares certificates by this Court would cause no hardship to the respondent. The prayer is also made for restraining the respondent from exercising any voting right, in respect of the shares in the second respondent. 42 The applicant also prays for deposit of all original title deeds of the property in possession of the first respondent. The applicant is also apprehensive that the first respondent or his nominees may alter the shareholding of the second respondent, and to deal with the shares in a manner to defeat the right of the applicant in the award. 43 Therefore, injunction is prayed for restraining the respondents 1, 3, 4, 5 and 6 from transferring, alienating, encumbering or creating interest or whatsoever in respect of 2,43,00,000 shares of the second respondent as detailed in the Judges Summons. 44 The applications were opposed by the respondents by filing counter affidavits. The second respondent in his counter challenged the maintainability of this application, on the ground that it is an abuse of process of court as the applicant has filed an application for the same relief before the Company Law Board, Chennai and other forums. 45 The factual position is not disputed. The stand taken by the respondent is that award dt.16.12.2009 was passed in violation of well settled principle of law, as the second respondent was directed to hand over the title deeds belonging to it without any basis. 46 It pleaded that the applicant has no right over the properties or title deeds of the respondent, as the applicant is only shareholders of the respondent, therefore, the applicant have no right over the properties of the company. 47 It is also the case in the counter, that the Arbitrator failed to appreciate the case of the respondent. Under the agreement, only shares held by applicant were transferred to the respondents 1, 3, 4, 5 and 6 in the manner as stated therein. Therefore, the Arbitral Tribunal acted contrary to law directing the owner of the property to hand over the document of title to the applicant, which was not subject matter of dispute. 48 It is also the stand taken by the second respondent that the Arbitral Tribunal wrongly issued directions in the nature of mandatory injunction, though main relief was essentially, a claim for money against the first respondent, which was already agreed to in the consent award dated 09.04.2007. The award had rendered the Arbitral Tribunal 'functus officio'. 49 It is also the stand taken in the counter that in view of the consent award, the Arbitral Tribunal therefore could not take contrary view and direct the second respondent to hand over the title deeds of the immovable properties to the applicant. 50 The award is contrary to the Specific Relief Act 1963, as the specific performance cannot be ordered with respect to a contract, where compensation is an adequate remedy. 51 The stand of the second respondent is that it has filed a petition under Sec.34 of the Arbitration & Conciliation Act for setting aside of the award. 52 It is also the case of the second respondent that there is no necessity and urgency to appoint Administrator to run the affairs of the second respondent. It is also the stand of the second respondent that the applicant cannot take advantage of its own misdeeds and complain now that the affairs of the respondent company have not been conducted as per law, as he voluntarily handed over the management of the respondent company in the meeting held on 17.08.2008. 53 The applicant has unnecessarily engaged the respondent No.2 company in litigation, which prevented its progression, development and obstructed the day to day management of the company. 54 As already referred to above, the stand is also taken that the applicant has filed C.P.No.36 of 2010 in the Company Law Board, Chennai claiming same relief. The stand of the second respondent is that the applicant is only a minority shareholder who has failed to get any interim relief from Company Law Board. Therefore, the applicant is guilty of 'forum shopping'. 55 It is also claimed that the arbitration award, does not give any right to the applicant, to seek any of the relief as sought for in the present applications, as the subject matter of arbitration is not connected with the interim relief. 56 The third respondent by way of counter has challenged the maintainability of the application on admitted facts. The case of the third respondent, in the counter is that the application is totally devoid of merit and deserves to be dismissed with exemplary penal cost, being abuse of process of law. 57 The stand taken by the third respondent is that the applicant is indulging in forum shopping, as it has filed company petition before the Company Law Board, Chennai seeking similar relief. 58 The stand of the third respondent is also that the application under Sec.9 of the Arbitration & Conciliation Act is maintainable only if there exist an arbitration agreement between the parties to the application, and where as no arbitration agreement, between the applicant and the third respondent. Therefore, the applications deserves to be dismissed on this short ground. 59 The case of the third respondent is that it had paid a sum of Rs.2,43,00,000/- (Rupees two crores and forty three lakhs only) which was received by the applicant without demur. It also accepted the share transfer, in favour of the third respondent. It is pleaded that it is an independent transaction, not covered by any arbitration. 60 It is also the case of the third respondent that the transfer of shares in favour of the third respondent has no bearing, as far as the award is concerned, as admitted by the learned Senior counsel for the applicant, before the Arbitral Tribunal. 61 The case of the third respondent further is that an attempt is being made to get back M/s.Sporting Pastime India Ltd. though the shares were validly and voluntarily transferred, for consideration to the third respondent. The stand of the third respondent is that it has no concern with any arbitration much less the arbitration award. 62 It is also the case of the third respondent that the application under Sec.9 of the Arbitration & Conciliation Act, being in the nature of execution, the third respondent has been unnecessarily dragged into the litigation, though not party to arbitral proceedings. 63 That all the steps are being taken so that M/s.Sporting Pastime India Ltd. is not able to function in accordance with law. The application under Sec.9 of the Arbitration & Conciliation Act is also not maintainable against the third respondent, as it relates to shares alone. 64 It is claimed that the total sale consideration of Rs.243 lakhs, stands paid and the share transferred in favour of the third respondent. The third respondent claims that it was on the representation made by the applicant, that it acquired 90% of the paid up capital of M/s.Sporting Pastime India Ltd. in the following manner: a. C.G. Holdings (P) Limited ... 1 b. Cheran Holdings Private Ltd. ... 1 c. KCP Associates Holdings P. Ltd. ... 1 d. Mr.K.C. Palanisamy ... 1 e. Cheran Properties Limited ... 242,99,994 instance of the applicant by this Court pending the arbitration. 65 The case of the third respondent is that after transferring the shares, now the applicant is using the device of this Court to grab the property. The applicant is therefore not entitled to injunction on the strength of non binding award. 66 It is the case of the third respondent that even C.P.No.50 of 2005, the transaction between the third respondent and the applicant was not disputed, nor there were any allegation against the third respondent in the said pleadings. 67 It is also the case of the third respondent that the share transfer deeds were duly executed by the applicant on 17.08.2004 in favour of the following persons: Sl.No. Name No of Shares 1 Charan Properties Limited 2,42,99,996 2 Cheran Holdings Pvt. Ltd. 1 3 KCP Associates Holdings Pvt. Ltd. 1 4 C.G. Holdings Pvt. Ltd. 1 5 K.C. Palanisamy 1 68 In nutshell, the stand of the third respondent, is that the private arrangements of the applicant with the first respondent resulted in disputes inter se between them, which cannot be a ground for filing the applications under Sec.9