Judgment:
ORDER
K.S. Gupta, J.
1. This petition under Section 9 of the Arbitration and Conciliation Act,1996 (for short the Act') has been filed, inter alia, on the allegations that Navbharat Ferro Alloys Limited, petitioner and its division Beardsell Engineering entered into two agreements with the respondent. Agreement dated May 7, 1991 of the contract value of Rs.5,01,50,000/- was for supply of equipment and spares while dated May 5, 1991 of the contract value of Rs.65,50,000/- was for the execution of the work relating to raw-material handling system for the design, civil works, erection, testing and commissioning at Bhargarh (u.P.). Both the aforesaid agreements contain arbitration clauses. It is alleged that in or about January 1992 respondent informed the petitioner that as there were serious problems in their management they were not in a position to proceed with the work and asked the petitioner to stop it for the time being. By that time petitioner had raised voices towards the supply of materials to the extent of Rs.1,26,06,792/- and towards the services for Rs.12,44,891/05P. M/s.Howe & Co. Private Ltd., consultants, had duly certified the bills for a total sum of Rs.1,31,42,552/- (100% certified value) to enable the respondent to release the payments. Respondent also released part payment to the extent of Rs.33.92 lacs between April 18,1992 to December 24, 1992. Sum of Rs.1,15,07,968/18P was still payable for the work already done by the petitioner from the respondent. Disputes having arisen between, the parties, invoking the arbitration clauses the petitioner submitted the disputes in the first instance to the Engineer under the contract seeking his decision vide letter dated September 30, 1997. It is further alleged that it is in the interest of both the parties that the materials lying at the site are disposed of towards mitigating the outstanding liability of the respondent. If the materials are to remain idle for some more time until a finality is reached in the disputes between the parties the petitioner apprehends that the materials would reduce in quantity due to thefts and pilferage and also suffer deterioration in value. Main relief claimed in the petition is as under:-
'(a). grant an order of interim measure of protection towards securing the amount of Rs.1,15,07,968/18P claimed by the petitioner and payable by the respondent in respect of whIch the arbitration proceedings has been commenced by directing sale of all the materials more fully described in the schedule hereunder lying at Bhargarh Site, Uttar Pradesh.'
2. In response to the nice Sh. Sanjay Jain, Senior Officer (Finance) of The respondent appeared on December 16, 1997 and stated that since respondent company is in bad shape, time be allowed for engaging counsel and filing reply. Four weeks time was allowed to file the reply and the case was postponed to January 29,1998. On that date Shri Atul Bandhu, Advocate appeared for counsel for the respondent and as the lawyers were abstaining from work, case was adjourned to February 5, 1998. Neither on February 5,1998 nor on February 18, 1998, on which date I heard Shri Vikas Dhawan, Advocate for the petitioner any body put in appearance for the respondent nor the reply filed.
3. Section 9 of the Act under which the present petition has been filed,which is relevant, reads thus:-
9. 'A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court:-
(1) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely:-
(a) the preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
p> (d) interim injuction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the court to be just and convenient,
and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.'
4. According to Shri Dhawan relief claimed by the petitioner falls under said clause (a) of Section 9(ii). Needless to repeat that this clause relates to the preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement. Obviously, subject-matter of the arbitration agreement(s) in this case in the claim for Rs. 1,15,07,968/18P and not the materials owned by the respondent laying at the site of which the sale is sought by the petitioner. That being so, the petitioner cannot be granted the relief claimed in the petition and the same, thus, deserves to be dismissed.
5. Petition is, thereforee, dismissed. No order as to costs.