OMP464/2009 Page 1 of 4 *IN THE HIGH COURT OF DELHI AT NEW DELHI + OMP.No.464/2009 % Date of decision: 18th August, 2009 HIMACHAL FUTURISTIC COMMUNICATION .…Petitioner LTD. Through: Mr. Bishwajit Bhattacharya, Sr. Advocate with Mr. Debashis Mukherjee, Mr. Ajay Singh and Mr. Parmanand, Advocates. Versus UNION OF INDIA ... Respondent Through: Ms. Monica Garg with Ms. Sweta Kakkad and Mr. Varun Pathak, Advocates CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? RAJIV SAHAI ENDLAW, J. 1. Petition for interim measures under Section 9 of Arbitration Act, 1996, after the making of the arbitral award, but before its enforcement, is for admission. 2. The respondent Union of India has preferred petition under Section 34 of the Act with respect to the said arbitral award. The award is for a sum of Rs.55 Crores with simple interest thereon @ 9% per annum till payment or realization, by the respondent Union of India to the petitioner. 3. The petitioner seeks interim measure of directing the respondent Union of India to deposit the awarded amount in this court, to be kept in a fixed deposit in a nationalized bank. OMP464/2009 Page 2 of 4 4. In the short pleadings in this petition, all that has been said is that attitude of the respondent Union of India in the petition under Section 34 of the Act has been of procrastination and the petitioner has a strong case on merits in the petition and the order of deposit is sought to secure the amounts in dispute and if the said order is not made, the petitioner would suffer immense injury in as much as the Union of India would continue to delay the petition under Section 34 of the Act. The senior counsel for the petitioner during the course of hearing has also emphasized on the merits of the matter and has pointed out the dilatory tactics adopted by the counsel for the Union of India in the proceedings under Section 34 of the Act and has further pointed out that though an application for early hearing of the petition under Section 34 of the Act had been preferred by the petitioner herein but the same was dismissed by the court where the said petition is pending and the appeal against the said order was also dismissed as not pressed by the petitioner. 5. Section 9 of the Act expressly provides that the court, in dealing with such petitions shall have the same powers as it has for the purpose of and in relation to any proceedings before it. 6. Attention of the senior counsel for the petitioner was invited to provisions of Order 38 Rule 5 of the CPC. He has replied that the same are not strictly applicable because in the present case there is already a decree in favour of the petitioner. However this is not the correct position in law and the senior counsel has also fairly conceded that though the arbitral award till date is not a decree but has contended that it is akin to a decree. Once there is no decree, the powers of the court to be exercised under Section 9, for granting interim measures in the nature of attachment before judgment, as sought are the same as in Order 38 or Order 39 of the CPC. OMP464/2009 Page 3 of 4 7. The petitioner has neither pleaded any of the ingredients or Order 38 or Order 39 CPC nor can it possibly do so. The award is against the Union of India. It cannot be possibly suggested that unless the interim order of deposit as sought is made, the petitioner would suffer a fait accompli or would not be in a position to execute the award in the event of dismissal of the petition under Section 34 of the Act. The senior counsel for the petitioner has again fairly stated that the same cannot even be suggested against the Union of India. He has however contended that Section 9(ii)(b) empowers the court to secure the amount in dispute in the arbitration and has further contended that the order of deposit sought by him is for securing the amount. 8. However the aforesaid provision cannot be equated to the execution of an award. If, even in the absence of averments of the party against whom monetary award has been passed changing the position in a manner so as to render the execution of the award an impossibility or an impracticality, orders are made for deposit of the award amount in the court, even before the award has become executable as a decree, powers under Section 9 would become the same as in execution and which the courts have held is not permissible in law. 9. The powers under Section 9 are for granting interim measures by the court. The Supreme Court recently in State of Assam Vs. Barak Vpatyaka D.U. Karamchari Sanstha 2009 5 SCC 694 has held that the interim orders do not finally and conclusively decide the issue and are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. They are in aid of the final order and to prevent the position from changing during the pendency of the proceedings and OMP464/2009 Page 4 of 4 cannot be in the nature of a final order. In the present case the interim measure sought is in the nature of the final order/execution of the award before the same has become executable. 10. There is another aspect of the matter. It is not as if the petitioner under the award has not been allowed any interest on the principal amount or that the deposit of the money in a nationalized bank is sought to earn interest therefrom. As noticed above, the petitioner has been awarded interest @ 9% per annum. Even if, as sought, the amount is deposited in a fixed deposit in a nationalized bank, the same is unlikely to earn interest at a rate more than the rate awarded. 11. Therefore in such circumstances no case is made out for grant of the interim measures. The petition is dismissed. IA No.10347/2009 (U/s.151 CPC for exemption) Allowed subject to just exceptions. RAJIV SAHAI ENDLAW,J August 18, 2009 J