1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION (L) NO.1893 OF 2009 IL&FS Milestone Fund II .. Petitioner -versus M.S Luvish Properties Pvt. Ltd .. Respondent. Mr. Dinyan Madan, Senior Counsel with Mr. Amit Vyas and Ashis Parwani i/b Rajani Associates for the Petitioner Mr. V. Kantawala i/b M.M. Legal Associates for Respondent Nos l & 2. CORAM: ANOOP V. MOHTA, J. DATED: 4th February, 2010 P.C. 1. In this petition there is arbitration clause between the parties which provide the jurisdiction to the Court at Mumbai. Therefore, the petitioner, moved this section 9 petition for interim protection/interim measure as contemplated under the Act, basically on the foundation that the case of specific performance which need to be adjudicated by the Arbitration Tribunal and if decided in his favour then he will lose everything as the defendant though ready and willing to perform their part of agreement even today, they will transfer the properties as described in clause 7(a). 2 2. There is clear dispute between the parties with regard to the readyness and willingness of various terms of the contract. The petitioners are alleging non compliance of various contract conditions within the stipulated period of 30 days. The defendant is denying the same in reply as well as a chart marked 'X' filed today in the Court to which learned Senior Counsel for the petitioner, submits that they are not accepting the same. 3. The fact remains that there is dispute about various clauses of agreement with regard to the willingness and performance of both sides in my view the Arbitrator/Tribunal will decide this issue after giving full opportunity to both parties after considering the nature of contract between them. 4. However, I am convinced at this stage and as case is made out by the petitioners for interim relief as the defendants are still ready and willing to perform their part of contract. It is for the petitioner to take note of and accept the case, before the Arbitral Tribunal if the parties agrees and basically the petitioner and if during this period the defendant takes steps as apprehended to transfer and/or disposing of the assets of respondent No.l the whole object and purpose of specific performance suit/proceeding shall be frustrated. The disputed questions the fact that who is bound to perform and who ought to have perform within the stipulated period of 30 days and even thereafter again goes to the 3 root of the matter. Therefore, considering above, I am of the view that all the allegations as contemplated under section 9 of the Arbitration Act read with order 39 rule 1 & 2 of the Civil Procedure Code are available in the matter. The balance of convenience lies in favour of the petitioner. The petitioner has already invoked arbitration and nominated his Arbitrator also. 5. With regard to the entitlement of compensation as submitted by the counsel for the respondent, the Tribunal will decide. However, that cannot be the reason to overlook the case of the petitioner only on the ground that the petitioner is entitled to claim compensation from the defendants. Resultantly the following order ORDER. i) So far as prayer clause (a) is concerned the amount is lying with respondent No.l in view of order of this Court dated l8th December, 2009, they will keep the amount of Rs. 2 crores but that shall be subject to interest as will be decided by the Arbitrator Tribunal in case order goes in favour of the petitioner. If not, the forfeiture clause will prevail. 4 ii) Interim relief is granted in terms of prayer clause (b). iii) The petition is allowed accordingly . No costs. iv) Learned counsel appearing for the Defendant seeks stay of this order, with regard to prayer clause (b), however, considering the reasons recorded I am rejecting the same. ( ANOOP V. MOHTA, J.)