Kerala High Court

Rajeevan P. V vs M. K. Jayakrishnan on 15 February, 2024

Author: Anil K. Narendran

Bench: Anil K.Narendran

                                  1

Arb. A No.11 of 2024




              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                  &
            THE HONOURABLE MR. JUSTICE G.GIRISH
   THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA,
                                1945
                        ARB.A NO.11 OF 2024
    AGAINST THE ORDER DATED 03.02.2024 OF THE COMMERCIAL
       COURT - II (ADDITIONAL SUB JUDGE -II), ERNAKULAM
                       IN CMA(ARB)NO.27 OF 2024
APPELLANT/PETITIONER:

               RAJEEVAN P. V.
               AGED 50 YEARS
               KRISHNAN NAIR, RESIDING AT 10D1, MANJOORAN
               MOONSTONE APARTMENT, THAMMANNAM ROAD,
               PALARIVATTOM, KOCHI, PIN - 682025

               BY ADVS.
               B.J.JOHN PRAKASH
               P.PRAMEL
               COLIN ALEX
               SOORAJ M.S.
               VARSHA VIJAYAKUMAR NAIR
               GEORGE POONTHOTTAM (SR.)



RESPONDENT/RESPONDENT:

               M. K. JAYAKRISHNAN
               AGED 59 YEARS
               S/O. LATE VASUDEVAN NAIR, RESIDING AT 11/775,
               50B SECTOR, CHANDRANAGAR, SHYADRI COLONY,
               CHANDRANAGAR P.O., PALAKKAD, PIN - 678007

     THIS ARBITRATION APPEALS HAVING COME UP FOR ADMISSION
ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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Arb. A No.11 of 2024



                                JUDGMENT

Anil K. Narendran, J

The appellant is the petitioner in CMA(Arb)No.27 of 2024

on the file of the Commercial Court - II (Additional Sub Judge

-II), Ernakulam, which is one filed invoking the provisions

under Section 9 of the Arbitration and Conciliation Act, 1996.

In that matter, the appellant filed I.A.No.1 of 2024, seeking

interim relief, in which the Commercial Court granted an order

dated 03.02.2024. Paragraph 4 of that order reads thus;

"Issue notice to the respondent. The petitioner shall deliver to the respondent or send it by registered post immediately, a copy of the application for interim order together with a copy of affidavit filed in support of the application, copies of the documents on which the applicant relies and directed to file an affidavit stating that the aforesaid have been so delivered or sent as contemplated under Rule 5A(1)(a) and (b) of Kerala Arbitration and Conciliation (Court) Rules, 1997, showing the compliance of the same immediately. For return of notice:27.03.2024."

2. The grievance of the appellant in this Arbitration

Appeal, which is one filed invoking the provisions under Section

37 of the Act, is that the prayer made in I.A.No.1 of 2024 for

attachment of the bank accounts which are Sl.Nos.1 to 12 in

Attachment B-schedule was not allowed by the Commercial

Court in the impugned order dated 03.02.2024 in I.A.No.1 of

2024.

3. Along with I.A.No.1 of 2024 filed in this Arbitration

Appeal, the appellant has placed on record a copy of Arbitration

Request No.16 of 2024 pending before this Court; copy of the

memorandum in CMA(Arb)No.27 of 2024 filed before the

Commercial Court - II, Ernakulam; and a screenshot of the

website of the respondent, as Annexures A to C.

4. On 13.02.2024, when this appeal came up for

admission, this Court issued notice on admission to respondent

by special messenger, returnable by 14.02.2024 and the

matter was directed to be listed at 2.00 p.m.

5. On 14.02.2024, when this appeal came up for

consideration, despite service of notice by special messenger,

there was no appearance for the respondent. Therefore,

Registry was directed to verify whether there is any appearance

for the respondent and the matter was ordered to be listed at

4.00 p.m. Since there was no appearance for the respondent

at 4.00 p.m., the appeal was ordered to be listed today, for

consideration.

6. Today, when this matter is taken up for

consideration, the appellant filed I.A.No.2 of 2024, producing

therewith a copy of I.A.No.1 of 2024 in CMA(Arb)No.27 of 2024.

7. Heard the learned Senior Counsel for the appellant.

Despite service of notice, none appears for the respondent.

8. During the course of arguments, the learned Senior

Counsel for the appellant would place reliance on the

judgement of the Apex Court in Essar House Private Limited

v. Arcellor Mittal Nippon Steel India Limited [AIR 2022

SC 4294]. Paragraphs 48 to 50 of that decision read thus;

"48. Section 9 of the Arbitration Act confers wide power on the Court to pass orders securing the amount in dispute in arbitration, whether before the commencement of the arbitral proceedings, during the arbitral proceedings or at any time after making of the arbitral award, but before its enforcement in accordance with Section 36 of the Arbitration Act. All that the Court is required to see is, whether the applicant for interim measure has a good prima facie case, whether the balance of convenience is in favour of interim relief as prayed for being granted and whether the applicant has approached the court with reasonable expedition.

49. If a strong prima facie case is made out and the balance of convenience is in favour of interim relief being granted, the Court exercising power under Section 9 of the

Arbitration Act should not withhold relief on the mere technicality of absence of averments, incorporating the grounds for attachment before judgment under Order 38 Rule 5 of the CPC.

50. Proof of actual attempts to deal with, remove or dispose of the property with a view to defeat or delay the realisation of an impending Arbitral Award is not imperative for grant of relief under Section 9 of the Arbitration Act. A strong possibility of diminution of assets would suffice. To assess the balance of convenience, the Court is required to examine and weigh the consequences of refusal of interim relief to the applicant for interim relief in case of success in the proceedings, against the consequence of grant of the interim relief to the opponent in case the proceedings should ultimately fail."

9. The law laid down by the Apex Court in Essar

House Private Limited [AIR 2022 SC 4294], in the context

of Section 9 of the Arbitration and Conciliation Act is that if a

strong prima facie case is made out and the balance of

convenience is in favour of interim relief being granted, the

Court exercising power under Section 9 of the Arbitration and

Conciliation Act should not withhold relief on the mere

technicality of absence of averments, incorporating the

grounds for attachment before judgment under Order 38 Rule

5 of the Code of Civil Procedure, 1908.

10. A reading of the impugned order dated 03.02.2024

of the Commercial Court in I.A.No.1 of 2024 in CMA(Arb)No.27