Himachal Futuristic ... vs Union Of India
2009 Latest Caselaw 3222 Del

     *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.

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.

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

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