Mohta Anoop V., J.:— Heard finally.
2. The petitioner has invoked section 9 of the Arbitration and Conciliation Act, 1996 (the Act), as respondent in spite of agreement committed various defaults in making payment and the amount is now due to the extent of Rupees Thirteen Lacs and more. The Award is already passed against the respondent in the month of April, 2009.
3. The submissions based upon the Supreme Court Judgment in (National Aluminium Co. Ltd. v. Pressteel & Fabrications (P) Ltd.)1, 2003 (Supp. 2) Bom.C.R 445 (S.C) : (2004) 1 S.C.C 540, are that there is no question of executing the award once the challenge is made to the award and that there is no discretion left with the Court to pass any interlocutory order/direction except to adjudicate on the correctness of the claims made by the petitioner.
4. The statement is made at the bar by the learned Counsel appearing for the respondent that they have already challenged the said award under section 34 of the Act and the same is pending.
5. The point is, in view of the averments made and if apprehension so raised and if case is made out, whether the Court under section 9 can pass any interim order to secure and to protect the subject matter of the dispute and in the present case the movable property, the vehicle.
6. Considering the scope and purpose of section 9 and in the present case, the respondent now even disputing the execution of the agreement itself basically by contending that the agreement was entered with the Tata Motors Limited and the same was never signed. The petitioner is an assignee of Tata Motors Limited. The rights flow from such assignment covers the recovery of dues and/ or claim and all such rights of the Assignor i.e Tata Motors Limited. Even otherwise, that cannot be the reason to overlook the positive averments made in the present petition with regard to the nonpayment and or dues as defaulted, apart fro the conduct of the petitioner. The respondents now even denying the existence of the agreement itself, though have been using the said vehicle by paying nominal amount as per this agreement, itself. The Arbitral Tribunal has also passed the award against the respondents. Therefore, there is a clear case that this much amount is due and payable by the respondents, pending section 34 petition. Therefore, it is in no way sufficient to overlook the case of the petitioner as contemplated under section 9 of the Act. The facts of the case before the Supreme Court were totally different. There was no issue and discussion about section 9 of the Act.
7. The plain reading of section 9 of the Act nowhere, debars the Court from passing any interim order or protection though under section 34 of the Act the petition is pending against the award. The scope and purpose of section 34/37 cannot be equated with section 9. The Award becomes inexecutable, once the petition under section 34 of the Act is filed and unless it is decided finally by the Court, as expressed by the Supreme Court (supra). In such situation, the Court may not pass the order to deposit the said awarded amount, as a condition precedent, to hear of the matter, treating the same as a money decree. The discretion so referred, therefore, just cannot be sufficient to overlook the mandate of section 9 of the Act. On the contrary, it provides various stages, where the Court can pass ad interim order or direction, if the case is made out, it cover the stage even after passing of award but until it is executed or during the pendency of the execution.
8. Merely because section 34 petition is filed, that itself cannot be the reason to overlook the apprehension as raised by the petitioner. In such cases the parties against whom the award is passed, may transfer or dispose of the property and the award so passed will be rendered nugatory or paper decree/award. It would be difficult to execute and get the fruit of the award even if it is passed in their favour. Therefore, to avoid such complication, the order under section 9 of the Act is the only remedy. In the present case, as the respondents are even denying the contract, but admittedly using the said vehicle without due payment.
9. I am of the view that the petitioner has made out the case as contemplated under section 9 and as expressed by the Apex Court in (Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd.)2, 2007 DGLS (Soft) 742 : (2007) 7 S.C.C 125. All the relevant elements to grant interim relief/protection are available in support of the petitioner, the prima facie case, balance of convenience, irreparable injury and the conduct of the respondents.
10. Resultantly, the petition is allowed in terms of prayer Clauses (c) and (e). However, the liberty is granted to the respondents to settle the matter, if they so desire. No order as to costs.
11. Petition allowed.