<JJ S CtS-!5' Aged about 49 vears, son ofLate Shri Hiralal Jaia., R/o Pulgaon Nak Durg, Carryuig on business ui the name & s-tyle of'R.K.Traasport Coinpaii\ as Sole Proprietor. Woa-AppBcaat Ltd., A conipaay, through its President, Aliuimiiuia Bhawaa, Korba, District Korba, C.G. Mr. A_iiand Kuinar T'Bvari, counsel for the appeUant. Mr. Abhishek SirLha, counsel for fhe i-espondent. 12th This is an appe.al itnder Sectioa 37 of the Ai'bitration a_ud ReconciUation Act, 1996 (henceforfb. 'flie Acf) du'ected against the order dated 7-9-2005 passed by District Judge, Korba iii Civit Suit No.SA/OS, where.by the application filed by the appeUaiit uncler Section 9 of fhe Act for graut of uiiuncnon restfEdaiiig tlie respondent froiu lifting ftie inaterial left over by tlie appellant aild not to disturb fhe working phases as well as developed mmrn 7& - s phases developed by the appellaiit witliout taldiig joiii nieasureinent has beeu disinissed. 2. Tbe appeUaat entered in.to an agreeiuent with. the respondent for mming of BauxLte at Maiapat Mia.es as.d trarisporta.tion of it to Balco Plaut, Korba. The contract was for 3 years, which coiniaences froni 1-4-2002 aad ends on 31-3-2005. However, the contract was further extended upto 30-6-2005. The said contract contaias arbitration clause. The appeUant peribniied its contract according to tenas and conditions ofttie contract. Vide letter dated 25-6-2005, the respondeiit iafonned the appeUaj]^ to contact its Miaes Manager for congenial closiire of the activity at Maiupat aud to traasfer the site to it on 1-7-2005. The appeBanT., vide letter dated 29-6-2005 uitiinated fhe respondent tliat his inaterials at different niinuig stages are left iu tlie laines, tlterefore, requested for takiiig joint rueasureinent. The respondent agreed for joiut nieasureraent. Joint nieasureuient was camed out from. 26-7- 2005 to 1-8-2005, but fhereafter was stopped due to heay}- raiiis aiid was agreed to resiune froin 10-8-2005. <5. Despite various letters issued by fhe appeUaiit, fb.e respondent did not resuine joiat raeasureinent. Frora. 21-8-2005, the respondent wittiout recording joiut ineasureinent started lifting the luaterial left by tlie appellaat aad trauspoilrug ttie saiae to its Plant ffarough a new Contractor and also arbitrarilv handed over ftie developed phases of rauies which were developed by ttie appellant to the new Contractor. Therefore, to know fhe true measurement of tlie work left over by fb.e appellailt which will be the subject matter of the dispute in arbitration, for interiin ineasure, the appeUaiit filed au application under Section 9 of fh.e Act for issuance of itijunction agaiast fh.e respondent froin Uftiag the raatenal left over by him hi fhe iniues. 4. Tlie respondent denied the claim of the appellaiit aiid pleaded that the appeUant always shown his reluctaj.ice aiid inability ia acceptiiig its letters aud despite sufficieat time did not agrce to counter ofFer, therefore, tlte respondent awarded the disputed contract work to other Contractor. The apflellant was required to wiad-up his work by 30-6-2005 aitd to haiid over the raine froin 1-7-2005. The appeUaiit did not cooperate ui cam.-iag out the joint lueasiireinent. With due notice to fh.e appellaiit, Indiaii Bureau of Mines has been appotuted to conduct the nieasureic.ent work and fhe said Govemiuent orgaaisation camed out fhe suivev on the site, coiapleted it aiid submitted its report. A copy of the report. has already been sent to the appeUaat by FAX. For dispatcbing fhe material left by fhe appellatlt at fhe ttme of loadiag the saiue, vide letter dated 21-8-2005 tlie appeUant was irifoiTued to send his representative to be present so fhat supply of Bauxite to Uie Plant inay contmiie and work inay not stop. The sui-vey by Indiaii Bureau of Mines has been corapleted by 25-8-2005 ajid conseqiienfly the m.aterial left by the appeUaat on flie site has been traiisported to the refinen' of tlie respondent. The site has now been aUotted to the new Contractor. ,3. Learaed District Judge considered tlie factual aspect of ttte case, various con-espondence inade by the appeUant aad fhe respondent and held tliat the contract awarded to the appellaat expired on 30-6-2005 aud due to non-cooperation of fhe appeuaiit, fhe iiieasureiuent has beeii conducted bv Indiaa Blireau of MiQes, Nagpur, fh.erefore, for uiterun rrieasiirem.ent, the appUcation filed by fhe appeUaat on 30-8-2005 could not be treated as filed iimiiediately. The Dista-ict Judge furfher held ttiat t&e pxiuciples of in-eparable loss and balaace of convenience do not find favoiu' of tlLe appeUant, fherefore, vide impugned order, fhe appUcation has been disiaissed. 6. Both ftie parties are beard. 7. Adiuittedly, the contract had been awarded to tbe appellaiit by tlie respondent after due execution of agreeiaeut and tbat agreeinent contain.s arbitration cla.use, therefore, to iavoke jurisdiction iinder Section 9 of fhe Act, auy party raay subiuit application for iaterim. nieasiires before or duriiig ai-bitral proceediug or at any tmie after the laakuig offhearbitral award aad the Court has power to pass orders tabiag ttlterim. measure of protection ia. respect of fhe disputed propert}'. The scope for grEuiting teiaporan7 iajunction ia favoirr of fhe appeUaiit is limited aad the Court has only to consider whetlier for protection of the iaterest of aiiy party relatiug to subject inatter of the dispute ao.y intenin. m.easure is required aiid tf required can accordiagly grant it. 8. In the iastaut case, fhe appellaiit was reqiured to haad over possession ofthe inines to ffie respondent on 1-7-2005, aad iii fhe uiterest of both fhe parties, it was also necessaiy fhat proper and con-ect nieasurenient of ftie property belongin.g to the appeUant left at site should be done. Undisputedly, contract has been given to anoftier person. From. tlie record aadUie correspondence filed by bofh fhe pardes, it is apparent that iaitiaUy fhe work of joiiit ineasureinent has beeu camed out, but the same was not resuiaed after 10-8-2005. A letter No.564 dated 17/ 18-8-2005 written by tiie respondent to tlie appeUant uidicates fhe non-cooperation of the appeUaiit towards joint nieasureiuent. Letter dated 21-8-2005, issued by the respondent to the appeUant, clearly iadicates ftiat the work of Uftiug of Bauxite lyiug at site is to be cai-ried out, thercfore, for witaessiug the same, tlie appellaat inay keep his representative fhere, but ttte letter was not taken by fhe einployee present jji tlie of&ce of flie appeUaat, A letter dated 23-8-2005 is also on record unveilmg the fact fhat the persons of Indian Biu-eaii of Muies, Nagpiu- came for survey, fb.erefore, tlie appeUant inay depute his representative. 9. It was also sbown th.at the above letter was not received by the eiaployee of tiie appeUan.t. Froiu the record, it is evident tliat by 25-8-2005, Indiau Bureau of Mines, Nagpiir coiapleted tlie survey aud ineasurenient work and haiided over the report to 'the respondent. Ou the priaciple of preponderaace of probabilities, it can be presumed fhat when the respondent stai'ted liftuig liie inaterial from. fhe site froia 21-8-2005, it m.ust have coiupleted the saiae withiu a short period. It is manifest that the contract ended on 30-6-2005. Material left by the appeUaat on flie site has been siuveved aiid raeasured bv an agencv offhe Central Goveniinent i.e. Indian Bureau of Mines and fiie m.aterial left by fhe appeUaiit has been transported to fhe Plant froin the site and fhe site has been allotted to fhe new Contractor for work. Therefore, taktag iiito acconut all these facts, to protect tlie iuterest of tlie parties, when nothing reniained on the spot, no order yiidsr^ Section 9 of the Act for protecting fhe iaterest of applicant would have been passed by fhe Court. Therefore, inipugned order passed by tlie District Jiidge does not caU for anv iaterference. ?! 10. In the Ught of above, the appeal deserves to be disaiissed and te accorduigly disinissed. V.K.Shrivastava Judge 12-1-2006 •~;.S'.Ejai