ORDER
R. Balasubramanian, J.
1. This is an application under Section 9 of the Arbitration Act seeking appointment of an Advocate Commissioner to seize; take possession of the machinery mentioned in the schedule and available in the custody of the respondent; to bring them to sale and to deposit the amounts so realised into the accounts of this application. On 22.12.2003, a learned Judge of this Court appointed a retired District Judge as the Advocate Commissioner to inventories the articles available in the custody of the respondent; take photographs of those articles and file a report. The Advocate Commissioner had thus taken symbolical possession of the properties.
2. Mr. G. Desappan, learned counsel for the respondent would submit that though it is a settled position in law that the application under Section 9 of the Arbitration Act can be moved before or during or after the arbitral proceedings, yet the applicant should not keep quiet indefinitely after obtaining the interim order before commencement of the arbitral proceedings. According to him, a duty is cast upon the applicant to have the matter referred to the arbitrator within a reasonable time from the date of obtaining the interim order and if there is any failure on the part of the applicant in this behalf, then the Court is under a legal duty to recall the earlier order. For this purpose, the learned counsel relies upon the judgment in Firm Ashok Traders v. Gurumukh Das Saluja, . It is the further submission of Mr. G. Desappan that till date, though the application was filed in April, 2003, the applicant had not taken any steps at all to have the dispute referred to an arbitrator. Mr. Karthik Seshadri, learned counsel for the applicant would counter this argument by stating that to pass an order under Section 9 of the Act, there is no need that arbitration proceedings must be actually pending on the date of filing of the application. He admits that his client had not commenced the arbitral proceedings till date.
3. I applied my mind to the arguments advanced by the learned counsel on either side with reference to the case law available. In Sundaram Finance Limited v. NEPC India Limited, , it was held by the Supreme Court that an application under Section 9 of the Arbitration Act can be moved at any time before or during or after the arbitral proceedings. The word “before” used in Section 9 of the Act, according to the later judgment (i.e.) Ashok Traders Case must be given a definite meaning. According to the later judgment, the word “before” used in Section 9 of the Act would mean that within a reasonable time, after getting an interim order under Section 9 of the Act, the applicant must move the proceedings before the arbitrator. In this context, I extract hereunder the relevant paragraph in the judgment Firm Ashok Traders v. Gurumukh Das Saluja, 2004 AIR SCW 366:
“17. There are two other factors which are weighing heavily with us and which we proceed to record. As per the law laid down by this Court in M/s. Sundaram Finance Ltd. an application under Section 9 seeking interim relief is maintainable even before commencement of arbitral proceedings. What does that mean? In M/s. Sundaram Finance Ltd., itself the Court has said – “It is true that when an application under Section 9 is filed before the commencement of the arbitral proceedings there has to be manifest intention on the part of the applicant to take recourse to the arbitral proceedings.” Section 9 permits application being filed in the Court before the commencement of the arbitral proceedings but the provision does not give any indication of how much before. The word “before” means, inter alia, ahead of; in presence or sight of; under the consideration or cognizance of.” The two events sought to be interconnected by use of the term “before” must have proximity of relationship by reference to occurrence; the later event proximately following the preceding even as a foreseeable or “within sight” certainty. The party invoking Section 9 may not have actually commenced the arbitral proceedings but must be able to satisfy the Court that the arbitral proceedings are actually contemplated or manifestly intended (as M/s. Sundaram Finance Ltd. puts it) and are positively going to commence within a reasonable time. What is a reasonable time will depend on the facts and circumstances of each case and the nature of interim relief sought for would itself give an indication thereof. The distance of time must not be such as would destroy the proximity of relationship of the two events between which it exists and elapses. The purpose of enacting Section 9 read in the light of the Model Law and UNCITRAL Rules is to provide “interim measures of protection.” The order passed by the Court should fall within the meaning of the expression “an interim measure of protection” as distinguished from an all-time or permanent protection.”
The Court further held in paragraph 18 that the party having succeeded in securing an interim measure of protection before arbitral proceedings cannot afford to sit and sleep over the relief, conveniently forgetting the “proximately contemplated” or “manifestly intended” arbitral proceedings itself, it is further held in the judgment that if arbitral proceedings are not commenced within a reasonable time of an order under Section 9, the relationship between the order under Section 9 and the arbitral proceedings would stand snapped and the relief allowed to the party shall cease to be an order made “before”, i.e., in contemplation of arbitral proceedings.
4. On this settled position in Law, I applied my mind to the case on hand. A perusal of the affidavit filed in support of the application under Section 9 of the Act shows that the applicant, in paragraph 9, had categorically stated as follows:
“9. The Applicant proposes to take steps to invoke Arbitration. Pending the same, the Applicant seeks the protection of this Hon’ble Court by invoking the jurisdiction of this Hon’ble Court under Section 9 of the Arbitration and Conciliation Act, 1996.”
5. As already noted, the applicant is yet to commence the arbitral proceedings. It is, true that not much time had elapsed from the date of the order (i.e.) 22.12.2003 passed in this case, till date. But however, the fact remains that this application was filed before this Court on 3.4.2003 and listed before this Court on 7.4.2003. Even at that time itself the applicant had expressed that he is proposing to take steps to invoke arbitration. Therefore he had expressed his manifest intention to go before the arbitrator. The Supreme Court in Sundaram Finance case, has held that the Court can even pass a conditional order on the applicant to see that he takes effective steps for commencing the arbitral proceedings. I extract hereunder the relevant portion from that judgment.
“If an application is so made, the Court will first have to be satisfied that there exists a valid arbitration agreement and the applicant intends to take the dispute to arbitration. Once it is so satisfied, the Court will have the jurisdiction to pass orders under Section 9 giving such interim protection as the facts and circumstances warrant. While passing such an order and in order to ensure that effective steps are taken to commence the arbitral proceedings, the Court while exercising jurisdiction under Section 9 can pass a conditional order to put the applicant to such terms as it may deem fit with a view to see that effective steps are taken by the applicant for commencing the arbitral proceedings.”
Therefore reading both the judgments together, it is possible to hold that the applicant has a duty to commence arbitral proceedings as expeditiously as possible once he seeks the intervention of the Court under Section 9 of the Act. If the case on hand is viewed in the light of the materials referred to above, it is clear that there is total inaction on the part of the applicant from April, 2003 till date in commencing arbitral proceedings and I see no reason as to why this inaction on his part from 7.4.2003 till 22.12.2003 and from 22.12.2003 till date cannot be taken note of to decide whether the applicant has any intention at all to go for the arbitral proceedings. On the facts noted, my answer is that the applicant has no intention at all to commence the arbitral proceedings. No reasons are available as to why the applicant has not commenced arbitral proceedings till now. Therefore, the judgment of the Supreme Court referred to supra namely Firm Ashok Traders v. Gurumukh Das Saluja, squarely applies to the case on hand. Holding that the inordinate delay in commencing the arbitration proceedings has snapped the order already passed In this case, this application stands dismissed.