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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO.421 OF 2009
ICICI Securities Ltd. .... Petitioners
vs
O. P. Roongta .... Respondents
Mr.P.C. Mody with Mr. Kunal Cheema i/b. M.K. Ambalal & Co. for the petitioners.
Mr.K.K. Singhavi, Sr.Counsel with Mr.Firoz Palkhiwala with Mr.Sachin Joshi i/b.
Mr.M.G.Mimani for the respondents.
CORAM: ANOOP V. MOHTA, J.
DATE : 12th August, 2009
ORAL JUDGMENT:
1 The petitioners have invoked Section 9 of the Arbitration & Conciliation
Act, 1996 (for short, the Act).
2 Admittedly, against the Award, this Court has admitted the petition under
Section 34 of the Act. The same is pending.
3 The point in the present case, as averred is that whether the petitioner’s
apprehension, as denied by the respondents, is sufficient to reject the prayers of
interim protection/reliefs.
4 The Apex Court in Raman Tech. & Process Engg. Co. & anr. vs. Solanki
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Traders, (2008) 2 SCC 302., has laid down in para 6 as under:
“6. A defendant is not debarred from dealing with his
property merely because a suit is filed or about to be filed against
him. Shifting of business from one premises to another premises or
removal of machinery to another premises by itself is not a groundfor granting attachment before4 judgment. A plaintiff should show,
prima facie, that his claim is bonafide and valid and also satisfy the
court that the defendant is about to remove or dispose of the whole
or part of his property, with the intention of obstructing or delaying
the exe3cution of any decree that may be passed against him, beforepower is exercised under Order 38 Rule 5 CPC. Courts should also
keep in view the principles relating to grant of attachment before
judgment. (See Premraj Mundra v. Md.Manesh Gazi (AIR 1951) Cal.
156) for a clear summary of the principles.”
5 In the present case, admittedly, during the pendency of the arbitration
proceeding, no such application on similar apprehension was moved. Even in
the present petition, except the averments, there are no material for the above
elements to justify the same are placed on the record. As those elements are
missing, I see there is no reason to pass and grant the protection of security as
prayed.
6 Even otherwise, on merits and in view of the statement and the following
averments so made in the affidavit in reply that they are not willing to transfer
any property, are sufficient at this stage to protect the interest and the
apprehension of the petitioner.
“31 ….. I categorically deny that I have tried or am trying to dispose of
or alienate or transfer any of my assets or encumber the same with or without any
intention as alleged or otherwise at all. It is more than a year and half since the
disputes arose and I had enough time to dispose off my assets if I had wanted to
do so and the petitioner should have enough evidence of the same if that were so,
but the petitioner has no evidence at all and has resorted to bare and baseless
allegations.”
7 In view of above, the Court need to consider various facets while passing
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Order under Section 9 read with Order 38, Rule 5 and Order 39, Rules 1 and 2
and on facts and circumstances of this case also.
8 In view of this, as this suffices the purpose, therefore, the petition is
dismissed. However, liberty is granted to the petitioner to take out such petition
on change of circumstances. The interim order as passed on 26.06.2009 also
stands vacated. No costs.
(ANOOP V. MOHTA, J.)
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