1 ssm IN THE HIGH COURT OF JUDICATURE AT BOMBY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 114 OF 2009 Citicorp Finance (India) Ltd. Petitioner. Vs. Shreemant Ambernath Earth Movers & Anr. Respondents. Ms. Shakuntala Joshi, i/by M/s. S.I.Joshi & Co. for the Petitioner. Mr.P.B.Shah with Mr.Abhijit Gosavi for Respondent Nos. 1 and 2. CORAM : ANOOP V. MOHTA, J. DATED : 8TH MAY, 2009. P. C. 1. The Petitioner has filed Section 9 Petition in view of the fact that the Respondents have committed defaults as per the particular of claim. The amount is involved in, is more than 60 lacs. The Respondents have paid very nominal amount but using the said machinery without paying the balance installments. 2 2. This Court on 25th February, 2009 has passed the order on recording a statement that the Respondent Mr. Shivdas Pralhad, Proprietor of Defendant No.1, is in possession of 2 machineries and that he shall not create any third party rights in respect of the same till further order of this Court. That statement was accepted. The matter was pending before the learned Arbitrator. 3. On 24th March, 2009, as there was some problem as the private Receiver appointed by the Arbitral Tribunal could not secure the amount/ machinery/ subject matter of the dispute, the said private Receiver was discharged. 4. Therefore, the submission was made that the Petitioner have no other remedy but to invoke the provisions of Section 9 of the Arbitration Act for appointment of Court Receiver. This Court again granted opportunity to the Respondent to pay the substantial amount, however, on that day, the Court has directed to pay Rs.2,00,000/- (Rupees two lacs only). The Respondents have, accordingly deposited that two lacs. The interim statements recorded about parting with the possession and/or creation of any third party rights has been continuing since then. 5. The matter was, therefore, listed again for hearing. It was 3 adjourned on two occasions prior to this. None appeared for the Respondents. 6. On 23rd April, 2009, none appeared for the Respondents again and it was pointed out that there is an award for Rs.60,42,754/- (Rupees sixty lacs forty two thousand seven hundred fifty four only) passed by the Arbitral Tribunal. Therefore, considering the apprehension as shown, the difference and dispute with regard to the earlier proceedings initiated through private receiver an allegations and counter allegations as raised, once there is a clear award and the Respondents in view of the averments not paying the balance amount as due and payable and as there is a clear award pending the execution of that award, if the case is made out, the order of protection and measure based under Section 9 and therefore, the Court has granted ad-interim relief in terms of prayer clause (a). In the result, the Court receiver has been appointed. 7. On 7th May, 2009, matter listed again for final disposal. 8. The learned counsel appearing for the Respondents has offered to deposit Rs.3,00,000/- (Rupees three lacs only) more. The amount due as recorded is more than 60 lacs. Therefore, on instruction also the learned counsel appearing for the Respondents made statement 4 that the Respondents are not in position to deposit more than that. But also expressed that they will continue to deposit if installments are granted. The Petitioners counsel on instructions, submit that in the present facts and circumstances of the case, considering the conduct and the difference between the parties, they are not ready to consider the case of the Respondents. 9. The default though not in dispute, but if Respondents are ready to deposit the basic installments up to May, 2009, the Court would like to grant one more opportunity to Respondents, to have a possession and use of the said machineries. The installments upto May, 2009 comes to about Rs.21,00,000/-, but as expressed, the Respondents are not ready to deposit even that Rs.21,00,000/-. 10. In view of this, I see there is no reason to grant any protection to the Respondents. 11. This Court has already, considering the averments made, appointed the Receiver in terms of prayer clause (a) except bracketed portion. 5 12. The submission that when the Petition was filed, there was no award passed by the Tribunal. Pending the Petition, the Tribunal has passed the award on 29/03/2009. The averments and the prayers so made were based upon the then existing position. The subsequent events are not brought on record by any amendment. This Court while passing on 23rd April, 2009 noted the award date and the amount. There is no dispute that there is an award passed against the Respondents. Today, this Court, therefore, has granted liberty to the Petitioners to amend the Petition. The Petitioners have amended the prayer clause only. However, in view of undisputed position that there is a clear award in such circumstances, the Court is not powerless to pass protection to secure the subject matter of the Arbitration which is now culminated into the final award. Therefore, once the award is passed, and as the Petition is pending even though since January, 2009, in view of above admitted position on record and in the facts and circumstances of the case, and as in respect of the particulars given, the Respondents, are not showing their bonafide to secure the amount. I see, this is a clear case made out by the Petitioner for reliefs as prayed in the Petition. 13. Resultantly, the Petition is allowed in terms of prayer clause 6 prayer clauses (a) and (c). The prayer clause (a) as already granted except the bracketed portion shall continue only for two weeks. Thereafter, whole prayer clause (a) will take effect. 14. However, liberty is granted to the Respondents as recorded above to furnish or secure the said amount within two weeks. Liberty is also granted to the Respondents to approach the Petitioner and or settle the matter. 15. The Petition is accordingly disposed of. No costs. (ANOOP V. MOHTA, J.)