1 arbp716.09gp.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 716 OF 2009 WITH ARBITRATION PETITION NO. 717 OF 2009 WITH ARBITRATION PETITION NO. 718 OF 2009 WITH ARBITRATION PETITION NO. 719 OF 2009 WITH ARBITRATION PETITION NO. 720 OF 2009 Aditya Birla Nuvo Ltd. ....Petitioners. Vs. AIDEK Tourism Services Pvt. Ltd. ....Respondents. Mr. J.P. Sen i/by M/s. Mulla & Mulla for the Petitioners. Mr. Pesi Modi a/w Mr. V.V. Khemka for the Respondents. CORAM : ANOOP V. MOHTA, J. JUDGMENT RESERVED ON : 18th MARCH, 2011 JUDGMENT PRONOUNCED ON : 7th APRIL, 2011 JUDGMENT:- Heard. Rule, returnable forthwith. 2 These Petitions are filed under Section 9 of the Arbitration and 2 arbp716.09gp.sxw ssm Conciliation Act, 1996 (for short, the Act), on 9th September, 2009 and reverified on 22nd March, 2011. In view of the Arbitration clause between the parties, as their arose dispute, the Arbitrator was appointed and at present separate awards have been passed against the Respondents. 3 Admittedly, during this period since the date of the filing of the Petitions, there is no ad-interim relief sought or granted by the Court. All these matters have been pending since 2009, without any ad- interim relief. ARBITRATION MATTERS- Sr. No. Arbitration IMC No. New Section 9 Section 34 (HC) Exhibit Vehicles Total Amount due as on 31/08/2009 1. Case No. 1/2002-03 716 of 2009 632 of 2009 X-1 4 TATA Estates Rs. 28,75,967 2. Case No. 2/2002-03 717 of 2009 630 of 2009 X-2 8 Honda Accords Rs. 75,32,287 3. Case No. 3/2002-03 718 of 2009 633 of 2009 X-3 10 TATA Estates Rs.66,61,174 4. Case No. 4/2002-03 719 of 2009 629 of 2009 X-4 1 Ceilo Rs.10,07,511 5. Case No. 5/2002-03 720 of 2009 635 of 2009 X-5 3 Ford Cars Rs.69,31,663 TOTAL Rs.2,50,08,663 4 The following events show that the Petitioners have moved/filed 3 arbp716.09gp.sxw ssm these Section 9 Petitions, third time. The events are as under- 5 On 29th August, 1994, the Petitioners and the Respondents entered into a Hire Purchase agreement of even date under which the Respondents had taken on Hire Purchase basis four Tata Estate cars from the Petitioners. The Respondents defaulted in payment obligations under the said agreement and therefore, Arbitration proceedings commenced between the parties. 6 On 28th August, 2001, an order in Arbitration Petition No.381 of 2001 passed by this Court confirming ad-interim order dated 2nd May, 2001 for appointment of Court Receiver in respect of vehicles having registration Nos. MH-01 G-6625, MH-01-G-6623 and MH-01-G-6621. 7 On 14th February, 2007, the Petitioners filed Arbitration Petition No.22 of 2007 for obtaining directions, inter alia, the Court Receiver to sell the vehicles which was rejected for reasons stated in companion Petition No. 20 of 2007. 8 On 23rd March, 2009, the Arbitrator passed separate awards against the Respondents to pay to the Petitioners the respected 4 arbp716.09gp.sxw ssm amounts as directed and to hand over the respective vehicles. 9 On 22nd May, 2009, an additional awards passed by the Arbitrator to rectify clerical/typographical errors. 10 In the month of September, 2009, the present Petitions are filed. 11 Admittedly, the Petitioners to secure the amount and the interest even prior to the award, have invoked Section 9 of the Arbitration Act. By an ad-interim order dated 2nd May, 2001 which was confirmed on 28th August, 2001 at the instance of the Petitioners, the Court Receiver, High Court, Bombay was appointed in Arbitration Petition No. 381 of 2001. The Court Receiver took the possession of the vehicles. All these vehicles, since then for more than 12 to 13 years, have been in custody of the Petitioners on the directions of the Court Receiver, to store and secure the same. 12 During the pendency of the Arbitration proceedings. The Petitions were filed under Section 9, for directions to the Court Receiver to sell the said vehicles by public auction or private treaty. However, by an order dated 14th February, 2007, the said Petitions 5 arbp716.09gp.sxw ssm were rejected, and thereby denied the claim of the Petitioners to sell the property, pending the Arbitration proceedings. 13 The Petitioners, after the awards, moved these Applications for the following reliefs. “(a) that this Hon’ble Court may be pleased to direct the Respondent to deposit an amount of Rs.28,75,967/- in this Hon’ble Court within a period of 2 weeks or such other period as this Hon’ble Court may deem appropriate and permit the Petitioner to withdraw the said amount on such terms as this Hon’ble Court may deem fit and proper; (b) In the alternative and without prejudice to the aforesaid, that this Hon’ble Court may be pleased to direct the Respondents to disclose their assets in details with particulars, both movable and immovable, on oath with full particulars and to provide adequate security to secure the said amounts of Rs.28,75,967; (c) to discharge the Court Receiver, High Court, Bombay without passing accounts, to permit the Petitioner to sell the vehicles bearing Registration Nos. MH-01 G-6625, MH-01-G-6623 and MH-01-G-6621 and to appropriate the sale proceeds thereof; (d) ad-interim reliefs in terms of prayers (a), (b) and (c) above; (f) for the costs of the present Petition; and (g) for such further and other reliefs as the nature and circumstances of the present case may require.” 6 arbp716.09gp.sxw ssm 14 The Respondents, admittedly though filed Petition under Section 34, whereby, directions have been given to deposit the amount, not circulated or moved the Petition for admission. The vehicles have been lying idle with the Petitioners since 13 years and loosing its physical, as well as, commercial value. 15 There is an affidavit filed by the Respondents specifically, apart from resistance of the prayers and conditions and admitted that there are no assets of the company. Therefore, there is no question of passing any order to that effect to secure the amount as alleged. 16 Admittedly, there are awards passed in the matter against the Respondents and Section 34 Petitions are pending. Without expressing on the merits of the award in view of the allegations made about fraud and forgery at this stage, the fact that the order of appointment of Receiver passed on earlier petitions filed by the Petitioner, cannot be overlooked. Unless the award is set aside, at present, the Petitioner has made out the case in so far as the prayer clause (c) is concerned. There is no point in keeping these vehicles lying idle in such fashion. No one will be benefited out of this. Therefore, I am inclined to permit the Petitioners to sell the vehicles, 7 arbp716.09gp.sxw ssm on a condition of maintaining the accounts. The sale proceeds, if any, shall be subject to the Arbitration Proceedings. 17 In so far as prayer clauses (a) and (b) are concerned, there are no sufficient material on record to justify to grant prayer clauses (a) and (b) in the year 2011, though the Petition was filed on 9th September, 2009. No such prayers were agitated and/or granted by the Court till the date of the award. There are no additional material placed on record, except the fact of the award in question. In my view, for want of detailed material on record as contemplated under Section 9 and as required for the appointment of Receiver and/or for security and as the aspect of latches and delay goes against the Petitioners, I am not inclined to grant relief in terms of prayer clauses (a) and (b). However, I am inclined to grant liberty to the Petitioners for placing detailed material on record to justify there apprehension for any such ad-interim and/or protective relief, pending the Arbitration proceedings. Order accordingly. 18 In the result, all these Petitions are allowed in terms of prayer clause (c) only. However, it is made clear that it will be subject to the Receiver’s costs and fees. Rule is made absolute in terms of prayer 8 arbp716.09gp.sxw ssm clause (c) only. 19 The Petitions are accordingly partly allowed with no order as to costs, with liberty. (ANOOP V. MOHTA, J.)